Swift v Carpenter

The Claimant’s current everyday limb is the Elation prosthetic which was recommended by Mr Abdo Haidar of the London Prosthetic Centre. It is a trans-tibial, modular prosthesis with a foot incorporating a heel device which can be adjusted by the user to accommodate shoes up to 2 inches in heel height. The limb is fitted with a high definition silicone cosmetic sleeve which gives a very life-like appearance. The ankle joint of the Elation prosthesis is however fixed, preventing natural plantar and dorsiflexion and “rolling through” of the foot during walking, producing a flat-footed gait. It was common ground between the relevant experts that this problem is compounded by the stiffness of the ankle and midfoot on the right side. The combined effect of the fixed ankle joint and the stiffness on the right side is that, although not intrinsically a particularly heavy prosthetic, the Elation is a relatively tiring limb to wear. The Claimant also found that the fixed ankle presented an embarrassing tripping hazard to those around her. With legs crossed the foot sticks out in front; alternatively if the knee is bent so that the foot is flat on the ground she gets chafing and pain around the socket. The only comfortable pose for sitting for any reasonable period of time is with the leg stretched out in front of her.

These problems led Claimant to discuss with Mr Haidar the possibility of a more versatile limb which would incorporate ankle movement. She told me that Mr Haidar recommended that she test a Meridium prosthetic which is fitted with sensors and a microprocessor ankle enabling the foot to conform to the ground and to flex up and down in a similar way to a natural foot. She was fitted with the Meridium for a three-week trial period and used it daily for hill walking, general pavement walking, gym work and for Pilates. She told me that the Meridium made a real difference to the way in which she walked. Not only did it permit a more natural and smooth walk, but it also saved energy, particularly when walking on uneven surfaces or inclines/declines. She felt more stable, there was no jolting of the hip when she stepped on stones or bumps and she felt much more confident when walking on uneven surfaces and hills whilst on her own or when pushing the pram. She said that she had more energy for other activities. Also, when sitting down she was able to bend the knee and her ankle would naturally adjust. She was also able to use it when wearing heels. The essential problem with the Meridium prosthetic is that it cannot be fitted with a silicone cover. It is eye-catchingly unsightly. The “trade off” for the improved function of the Meridium is therefore that it can only be worn with trousers or a longer skirt.

I was shown a short series of videos depicting the Claimant wearing the Elation prosthetic and the Meridium prosthetic. I can deal with these relatively shortly. There was no disagreement that the Meridium enabled the Claimant to walk more quickly; that her gait was more symmetrical and that she was able to turn more freely. She seemed to be able to climb stairs with less effort. These points were obvious to a lay person. What was less obvious to the lay eye was the effect of the Meridium prosthetic on the right foot function; Professor Saleh explained that the two feet try and “match” each other and, as the left prosthetic foot was rolling through during walking, there was a more normalised rolling through on the right also. Professor Hanspal told me that he largely agreed with Professor Saleh’s assessment of the improvement in the Claimant’s gait using the Meridium.

The Claimant also trialled an alternative prosthetic, the “Kinnex”. I need say no more about that limb given that it is not advanced by the Defendant as a realistic alternative. The Claimant did not however trial the Echelon prosthesis, notwithstanding that it had been recommended by the Defendant’s expert, Mr Sullivan. Her explanation, when questioned by Mr Audland on the topic, was that the limb had not been recommended to her by her treating prosthetist, Mr Haidar, whose clinical preference was for the Meridium. She told me that Mr Haidar’s view was that the Meridium was the better limb for her as it afforded a greater degree of ankle movement than the Echelon and would enable her to wear a wider range of shoes.

The Claimant told me that, understandably, there are occasions particularly in the summer when she wants to wear a shorter dress or skirt without attracting untoward attention to her disability. The Claimant therefore seeks the costs throughout life of two everyday limbs: the Elation and the Meridium.

The Defendant submits that the reasonable choice of everyday limb with an “intelligent ankle” is an Echelon prosthesis which differs from the Meridium in that the internal workings of the ankle joint are hydraulic. The Defendant argues the Echelon performs to the same standard as a Meridium (in conforming to different contours) and will enable the Claimant to walk safely and comfortably on uneven terrain, including going uphill. It has further advantages which the Meridium does not have: it is intrinsically lighter, it can be fitted with a silicone sleeve for cosmesis and it does not require batteries (which need to be re-charged). It is accepted by the Defendant that the down-side of the Echelon foot is that it cannot accommodate different heel heights unless the adjustment is made by the prosthetist, involving a trip to the Clinic.

I note that the significance of the dispute concerning the type of everyday limb (in quantum terms) has receded considerably in the light of the concession made by the Defendant in closing submissions. The argument advanced by the Defendant in the Counter Schedule and at trial was that the Echelon prosthesis would operate as a replacement of the Elation limb and therefore only one type of everyday limb would therefore be reasonably required. No allowance was made in the Counter Schedule for the costs associated with the ongoing provision of the Elation prosthesis. In closing however, the Defendant accepts that the Claimant has a reasonable ongoing need for the Elation in addition the Echelon. Mr Audland submits however that:

The relative pros and cons of the Meridium and Echelon prosthetics were debated at some considerable length at trial. Professor Hanspal, of all of the experts, was probably the greatest advocate of the Echelon and did not accept that the Echelon range of ankle movement was appreciably less (although said that this issue was a matter for the prosthetists). He thought that an hydraulic foot conferred all of the gait benefits of the Meridium. Both Mr Nieveen and Mr Sullivan accepted that the Meridium was the heavier prosthesis, had the disadvantage of using battery power and did not come with a silicone sleeve. Both accepted that the Echelon prosthesis would involve the Claimant in a visit to the Clinic if she wished to wear higher heeled shoes. As to their relative function, Mr Nieveen was effectively cross examined by Mr Audland that it would be expected that the Echelon would provide a similar level of comfort and stability for the Claimant.

However, although I have been invited by both parties to express a preference for one expert over the other on the basis of points scored in cross examination, in the end, my resolution of this aspect of the claim does not turn upon the expert evidence. All of the experts were in the same position in that, although each expressed marginal preferences, none were in a position to advance a positive case for the Meridium over the Echelon, or vice versa, in the absence of the Echelon prosthesis ever having been tried by the Claimant.

It was clear from the evidence overall that there exists a range of functionally good prostheses, all with slightly different pros and cons. Professor Hanspal in his evidence mentioned, almost in passing, that there was another prosthesis which was not in a UK catalogue (but available in the US) with an adjustable hydraulic foot. The point was not developed, not least because it emerged at such a late stage, but it illustrates the range of potentially suitable prosthetics and that there is no single “right” artificial limb for any particular amputee. Outside the medico-legal context the clinical experience of the prosthetist and the personal preference of the user are likely to determine which one is eventually prescribed, rather than claims made by the manufacturer as to the theoretical function of any particular model.

I accept Mr Audland’s submission that it is unsatisfactory that the Echelon prosthesis has not been tried by the Claimant given that it was recommended by Mr Sullivan in his report. However, I do not accept his further point; that the Claimant has deliberately chosen not to trial the limb in order to maximise her claim. Nor do I accept that the fact that she has not yet bought the Meridium is evidence that she will not do so in the future if funds are available. I accept the Claimant’s evidence that she did not trial the Echelon for the simple reason that it was not recommended to her by Mr Haidar whose clinical preference was for the Meridium and that she had a clear (and, I add, understandable) preference for a prosthesis which would accommodate a range of heel heights without her having to make a trip to the Clinic for an adjustment to be made to the limb. I accept her evidence that if funds become available she will purchase the Meridium prosthesis and that the reason she has not yet done so is cash flow.

Nor do I accept Mr Audland’s submission that in the absence of a trial of the Echelon and a positive recommendation by the prosthetists in the light of such a trial, the Claimant has failed to discharge the burden of making good her claim for the Meridium. The Claimant’s choice of a Meridium is largely because it affords her flexibility in footwear. This is reasonable. For this reason alone, the claim is made out. However, as Mr Arney further submits, Mr Audland’s submission that the costs of the Echelon should be allowed would lead to the unsatisfactory and illogical end-point of the Claimant being awarded by me the costs associated with a limb which she has never yet tested and which may be uncomfortable or not suit her. I therefore accept the Claimant’s case that her choice of the Meridium prosthetic is reasonable.

The Defendant’s further submission is that, if I were to conclude that the Meridium was reasonable, then I should make a downward adjustment to the overall cost on the basis that in later life the Claimant may select the Echelon over the Meridium. I do not accept this point either. I take into account the Claimant’s prognosis, including the prospect that in later years the Claimant will likely need to use a wheelchair for mobility. However, there is no basis for my concluding that there is anything other than a fanciful chance that the Claimant may in later years favour the Echelon over the Meridium either because of the weight of the prosthesis, because wearing high heels will be less important or because of technological advances. It is, I find, overwhelmingly likely that the Claimant will in her later life elect to stay with the prosthesis with which, by then, she will have long been familiar. I do not therefore make any adjustment to reflect that the Claimant will substitute the Echelon foot for the Meridium.

I therefore allow the cost of the Meridium for life. I have also been asked to rule on the cost per six year cycle of the Meridium. Although Mr Audland queries the pleaded cost (£35,260) in his closing submissions he does not appear to advance an alternative costing. Although there was evidence from Mr Nieveen that the cost of the microprocessor element of the Meridium was set to increase by 6%, I make no allowance for the increase. The evidence was vague (and appeared to relate only to the microprocessor element of the prosthetic). The cost per six year cycle is therefore as pleaded in the Schedule at £35,260.

I also accept the Claimant’s case that her reasonable needs include the provision of an Elation for life. Given my conclusion that the provision of the Meridium prosthesis is reasonable, then, terminating the claim for the Elation at age 78 would have the effect that the Claimant would be deprived of a cosmetically acceptable limb from that age. There is no logical justification for such a limitation. The Claimant is reasonably entitled to a cosmetically acceptable prosthesis for life.

Water Activity Limb

The cost per five-year cycle is agreed at £13,375. I accept the Defendant’s argument that it is unlikely to be purchased in the last year of life. The appropriate adjustment to the multiplier should therefore be made.

Sports Activity Limb

Again, this is a topic in which the division between the parties has narrowed considerably during the trial. The Counter Schedule disputed the claim for a running blade in its entirety on the basis of the joint view of Professors Saleh and Hanspal that high impact sport was not recommended. However, the cost of the blade is now admitted by the Defendant, but to age 58 years only, in comparison with the claim which is made, to age 70 years. The Defendant submits that between ages 58 and 70 years it is likely that the Claimant will undertake lighter sports (rather than high impact) and seek to limit or rationalise the number of prostheses which she uses. It is argued that, from age 58, the Claimant will purchase a more versatile “sports” prosthetic such as a Rush Foot which could be used for both water and dry land activities. This costs around £5,575 more per five- year cycle than the cost of the water activity limb which has been allowed for life: the claim for the sports activity limb from age 58 years is therefore limited by the Defendant to this “additional” cost per cycle.

I accept that a number of amputees may wish, or end up, slimming down the number of prosthetics which they use and have to transport from place to place. However, I do not find that this Claimant will fall into this cohort. Sport has been and will remain central to her life. If anything, it is more important to her now given her need for, as she put it, “release”. Between age 58 and 70, as the Defendant accepts, she is likely to continue lighter sports including swimming. Although the types of activity which she undertakes may change during these later years, neither her commitment to sport nor wish to compete is likely to dwindle. She will want to use the most appropriate prosthesis for the sport in question. For these reasons, I do not find that it is either likely that she will reduce the number of prosthetics or that it is reasonable to impose a reduction upon her.

I therefore find that the Claimant’s need for a sports activity limb is as claimed to the age of 70 years. The multiplier will of course reflect that she has already purchased a blade.

The parties require me to rule on a number of items of aids and equipment. I deal with them below:

The claim covers the additional childcare, additional domestic chores and the Claimant’s personal care needs due to her disability.

I make the following preliminary points before dealing with the detail of the claim:

The first issue for me to decide is the number of children which the Claimant is likely to have. Her case is that she intends to have only one more child (in addition to Ossian who was born in June 2016). The Defendant’s case is that it is likely that the Claimant will go on to have two further children, either through choice or as an unintended consequence of IVF.

The Claimant told me that she conceived following IVF using a donated egg. She had been successful at the first attempt using this method but the process of conception had taken time as it involved going on an egg donor register, waiting to get to the top of the list and then waiting for a donor of similar hair colouring to become available. In her witness statement of May 2017, the Claimant had said that the “plan is to have at least another baby via the same method, but ideally, 3 children altogether (in addition to Malcolm’s daughter) is what I would like.. that has always been the plan”. She told me at trial however that she had changed her mind and now only intended to have one more child. She said that, by trial, she had had more experience of being a working mother and she did not now think that she had sufficient energy reserves to work and bring up three children. She told me that she was also conscious of Mr Carpenter’s age and her own age, neither are getting any younger. She recognised that there was a chance of multiple pregnancy using IVF but told me that the Lister Hospital did its best to keep the risk to a minimum.

This discrepancy between the Claimant’s witness statement and her evidence in chief was, submitted Mr Audland, a further example of the Claimant adjusting her evidence to make the most of her claim. There was, he submitted, a financial advantage to the Claimant in departing from her original case that she wished to have three children as, if accepted by the Court, it would make the Defendant’s argument that she would have moved house in any event all the stronger. I do not accept Mr Audland’s point. There was a good reason for the change in account. The Claimant had, by the time she gave evidence at trial, been back at work for four days per week for some months and had the benefit of the experience of an additional year caring for Ossian in conjunction with other commitments. This is, in itself, a sufficient and wholly credible explanation for the change in attitude to the size of her family. Furthermore, whilst I accept that the argument that the Claimant would have moved to a larger house in any event would be strengthened if she were to have three children, it also follows that, with three children, other heads of loss such as holiday costs, childcare costs and possibly transport costs would be appreciably higher. I do not accept that, in changing her mind as to how many children she will have, the Claimant has undertaken the sort of reckoning exercise which Mr Audland by implication submits she must have done. I think the answer is far simpler: she has had the benefit of the experience of an additional year as a working mother.

I therefore accept the Claimant’s evidence to me that she intends to have one further child. Mr Audland further submits that if I were to make this finding then I should take into account the risk of her having two or more (either by intention or because of the risks with using IVF) and apply a percentage chance to those risks. I accept that conception is not a certainty for the Claimant. Equally, as the Claimant accepts, given the need for assisted conception, there is a risk of a multiple pregnancy. The Claimant said that at the Lister Hospital the risk of multiple pregnancy was in the order of 9% or 10% but, other than this anecdotal evidence, there is no evidence to assist me in quantifying the risks on either side: to do so would have required expert evidence. All that I can conclude with a measure of confidence is that the risks on both sides exist. Given the absence of any evidence, I find that the risks are equal and neutral: they effectively cancel each other out. This was Mr Arney’s submission, and I accept it. I therefore analyse the competing submissions on care, including childcare, on the basis that the Claimant will go on to have one further child. As to the timing of the birth of the further child, I see no reason to depart from the submission that the Claimant’s second child will be born in around 18 months’ time, in early 2020. By this time, Ossian will be aged 3.5 years old.

Against this background, the following issues fall for my determination: the reasonable additional childcare and other care needs flowing from the disability, how such care will be delivered and the reasonable additional personal care the Claimant will require, particularly during the later years of her life.

The claim is divided into periods bookended by the age of the Claimant’s children and the predicted deterioration in her condition in later years.

I have already accepted the proposition that the Claimant’s second child is likely to be born in around 18 months’ time, that is, in early 2020. During this period the Claimant will continue to work for four days per week and Ossian will continue to attend nursery for 3 days per week. The care experts were in agreement that the Claimant’s injuries generated a need for extra childcare (particularly to carry and lift Ossian safely).

During this period the Claimant seeks 22 hours care per week comprising of 15 hours of commercial care (provided by an agency mother’s help) and 7 hours of gratuitous care. This approach compares will the allowance made by Ms Scandrett in her oral evidence (and accepted in closing submissions) that the Claimant’s reasonable childcare and domestic care needs require the provision of 20 hours additional care. Ms Scandrett’s opinion is that the Defendant is likely to shoulder the burden of the additional care during this period and therefore gratuitous care rates should be applied.

There is therefore no significant difference between the parties as to the number of hours of additional care required. I accept Dr Willson’s, slightly higher, assessment of 22 hours additional care per week given that during this period it is likely that the family will be moving house and the Claimant occupied with sourcing equipment whilst continuing to work. I also accept, for similar reasons, that it is reasonable for her to purchase commercial care for 15 hours per week at housekeeper rates with the balance of care provided by the Defendant. In summary, I therefore allow the claim as formulated by the Claimant during this period.

During the Claimant’s maternity leave (with her second child) Dr Willson proposes that the Claimant reasonably requires the services of a full-time nanny/housekeeper for weekdays (at a cost of £53,000) plus additional family help to be provided by Mr Carpenter for 14 hours per week during the first six months of maternity leave (total: 54 hours per week) and for 7 hours per week during the second six months (total: 47 hours per week). Ms Scandrett does not differentiate the period of maternity leave and allows only 31 hours per week of gratuitous care. There is therefore a considerable difference between the parties.

I make the following observations:

Both parties are in agreement that the next period under consideration extends from the end of maternity leave until the Claimant’s youngest child reaches secondary school age. During this period, the Claimant seeks 35 hours per week of additional help (30 via a mother’s help and 5 hours of gratuitous care). The Defendant submits that 31 hours of gratuitous care constitutes reasonable provision.

Again, there is no great difference in terms of the number of hours claimed. I accept Mr Audland’s submission that, as Dr Willson had initially allowed only 7 hours per week for the period between the youngest child reaching primary school until secondary school age, Ms Scandrett’s assessment is overall to be preferred. The point made by Mr Audland is that to seek precision as to the number of hours claimed per week is artificial: there may be times when the Claimant needs more hours per week of care, other times when she needs less. I agree with him. What I should seek to do when considering the matter is to ensure that there is reasonable provision overall. I therefore allow 31 hours of care during this period.

As to the split, if any, between gratuitous care and commercial care, I accept that some agency care is reasonable and that the cost will be incurred as a fact. I do not accept however that only one seventh of the care will be gratuitous. Although I did not hear from Mr Carpenter I have no doubt that he will wish to provide more care than Dr Willson allows, in spite of his age and the agreement between the couple that he should keep a life of his own. I allow 20 hours of commercial care during this period, using the mother’s help rates (£16.50 per hour) and 11 hours per week gratuitous care.

During this lengthy period, the Claimant seeks 7 hours of commercial care, the Defendant submits that 5 hours of gratuitous care is reasonable.

I make the following observations:

The Claimant seeks commercial care of 14 hours per week, Ms Scandrett allows 7 hours of commercial care. The competing multiplicands are £15,750 and £6,264 reflecting not only the difference in the number of hours which are claimed but differing rates (Dr Willson having for example allowed for double-time over bank holidays). I allow the higher number of hours and the higher rates formulated by Dr Willson. I bear in mind that during this period the Claimant will be increasingly reliant upon wheelchair use for both mobility indoors and outdoors. Her ability for example to go shopping, to clean and to carry things is likely to be considerably reduced. Two hours of care per day to provide assistance is reasonable. Dr Willson’s costings (reflecting as they do the differing weekend and bank holiday rates) is the more accurate. I therefore allow the claim as pleaded.

Given the Claimant’s prognosis, both experts agreed that an enhanced level of care was required. Dr Willson’s opinion is that the Claimant’s reasonable care needs should be met by way of a single live-in care at a weekly cost of £1,500. Ms Scandrett considers that the Claimant’s care needs can be met via 4 hours of agency care per day only.

I find that live-in care will be required during this last period of the Claimant’s life. It is likely that the Claimant will need assistance with transfers, with toileting and with some aspects of her bedtime routine. It is not reasonable to suggest, as the Defendant does, that the time of the Claimant’s toileting, bathing or bed-time needs should be prescribed by the carer’s schedule. Live-in care is reasonably required during this period.

In her report Dr Willson gave a single figure and reference for her proposed costings for live-in care but acknowledged in cross examination that there was a range of costings for live in care from around £900 per week to £1,500 per week. She provided little justification for her top of the range figure. Equally, Ms Scandrett provided little support for her claim that, if live in care were to be needed, the weekly rate would be £820. I bear in mind that London agency costs are likely to be high but also the Claimant’s needs in later life which will not be of the most arduous. For example, there is no evidence that the Claimant will not be able to assist in transfers – only that she will need help to do so. On this basis I find that the weekly rate for live in care is likely to fall towards the top end of the range, but not right at the top. I allow £1,250 per week.

Finally, in respect of care, I have been asked to rule upon the appropriate rate of payment for gratuitous care. The competing figures are the NJC recommended Local Authority aggregate rates for home helps (the Claimant) or the basic rate (the Defendant). I find the appropriate rate to be the basic rate as the bulk of the care provided by the Defendant will not be during unsocial hours, nor is it in the nature of an “on call” duty, nor can any of his care be described as in any sense technical or of a quasi-nursing nature. The parties have agreed that, whether aggregate or basic rates, there should be a discount of 25% for the non-commercial element of the care provided. The rate to be applied for the calculation of gratuitous care is therefore the basic rate minus 25%.

The Claimant seeks an additional sum for case management. She claims 30 hours for initial “start-up” recommendations and thereafter an annual allowance of between 10 and 15 hours plus provision for contingencies and crisis management. When questioned on the need for case management, the Claimant explained that, thus far, she has had the support of her solicitors in making arrangements but after the litigation this help will obviously melt away. She told me that she would use a case manager to help her make her childcare and other arrangements in accordance with Dr Willson’s provision. The Defendant disputes the need for case management in its entirety.

In considering the claim I have borne in mind the following points:

This is the one, miscellaneous, item of therapy which remains in dispute. The claim is valued at £72,626 over the course of the Claimant’s life. This loss was claimed in the Schedule and supporting invoices for past sports massage costs were disclosed (as I understand) at the appropriate time. Mr Arney accepted however the topic had not been addressed in the Claimant’s witness statement as it should have been. Upon Mr Audland’s objection to the Claimant making good the deficiency in her oral evidence, I indicated that I would hear the evidence and permit the parties to consider whether any further expert evidence (from physiotherapists) was needed before ruling. In the event, neither party chose to deploy further evidence and Mr Audland indicated that he was content to deal with the matter in his closing submissions.

The Claimant told me that she has had sports massage on a regular basis over the course of the past years. It is a painful therapy, intended to support the upper body musculature which comes under strain when using crutches. She had found it to be effective in relieving pain in her shoulders and neck and has therefore persisted with the therapy even though it was not pleasant. Professor Saleh supported sports massage as a complement to physiotherapy (which was intended to target acute and specific problems rather than support muscles and joint movement generally).

Mr Audland submits that the claim should be rejected: the physiotherapists (from whom I did not hear, as there was no point of disagreement between them) had made annual provision for physiotherapy and there was no reasonable need for any additional musculoskeletal therapy. He reminded me of Professor Saleh’s evidence that the benefits of sports massage could also be obtained from physiotherapy and that physiotherapists could provide both physiotherapy and sports massage.

I accept that the sports therapy is reasonably needed in addition to the claim for physiotherapy: the agreed physiotherapy provision is intended to address acute soft tissue injuries rather than maintain muscle condition generally. The Claimant finds the sports massage therapy helpful and I accept that she would not persist with the therapy if she did not perceive a benefit. I therefore find that there is a reasonable need for the sports massage and accept the claim as pleaded.

The claim for additional holiday costs is just over £747,000. It is therefore an unusually valuable component of the claim. Every element is in dispute. I deal with each in turn:

The Claimant seeks the additional costs associated with two long haul flights and 5 short haul flights per annum. Even taking into account the Claimant’s passion for travel, this is excessive. With a young family, I doubt that the Claimant will undertake two long haul holidays every year, particularly when she is limited to travelling with them only during school holidays. I find that it is reasonable to allow the additional costs of one long haul trip per year only. As for short haul flights, the claim for five such trips is overstated, particularly given that some of those trips are likely to be for skiing, or local European destinations. I allow the additional disability related costs of two short haul flights per year.

The claim includes the costs of the flight upgrades for all of the Claimant’s family. The Claimant told me that the journey is part of the holiday and that it would seem odd to her not to sit with the rest of her family; also that it would not be practical for the Defendant to travel separately with two young children. Mr Audland submitted that the Claimant could always walk along the cabin to see her children who would be sitting with the Defendant anyway. I accept the Claimant’s submissions. The Claimant would in her uninjured state have travelled with her husband and children and it is reasonable to permit her to do so in her injured condition. Mr Audland further submits that if I were to allow the additional costs of the whole family being upgraded, then I should impose a cut off of the children reaching the age of 5 years. I reject this submission for the same reasons as I do the challenge in principle. The costs should include the additional costs of the children’s upgrade to their age 18. From that age, if the children do holiday with their parents it would be reasonable to expect them to sit separately; some children may even chose to do so.

The claim includes the additional cost of taking a nanny on holiday. Dr Willson justifies the additional cost on the basis that the nanny would assist in managing childcare, juggling traveI arrangements, caring for the children and managing the large volume of luggage. The Claimant supported the claim on the basis that holidays were for relaxation and given her fatigue level she would need childcare support in order to relax. I do not accept that the Claimant will in fact choose to take a nanny on holiday or that it is a reasonable expense. I take into account that given her busy life the Claimant is likely to wish to spend time with her family including her children on holiday. No doubt, like other families, holiday destinations will be chosen with children, including entertainment and associated childcare, in mind. The presence of a nanny would be intrusive. Nor do I find it plausible given my impression of the Claimant that she will involve the nanny in making travel arrangements. She will make arrangements, or the Defendant will do so. Nor is it reasonable to take a nanny on holiday to perform the function of a glorified luggage carrier.

The costs proposed by Dr Willson in her report and as reflected in the Schedule assume an additional upgrade cost for a long-haul flight of £2,000 per person and £250 for each short haul flight. On my assessment that it is reasonable to allow for the claim in respect of one long haul flight per annum and 2 short haul flights, then the cost per annum would be £2,500 per person. Ms Scandrett offered a global figure of £2,000 per annum for additional flight costs.

There are a number of difficulties with both sets of costings. First, neither of the care experts (who purported to give expert evidence on the topic of additional flight costings) provided any reliable evidence to underpin their proposed figures. Nor from a common sense viewpoint could there be. All will depend on the destination, the deal being offered by the airline at the time of booking and the time of year of travel. Second, Mr Audland submits with considerable force that neither care expert is qualified to give expert evidence as to the additional flight costs. I accept this point. Neither Dr Willson nor Ms Scandrett are in any better position to advise the Court on holiday costs than a lay-person. I therefore put the Willson/Scandrett costings to one side.

The only evidential basis upon which I can approach the quantification of the additional flight costs is the travel costs which have, in fact, been incurred by the Claimant over the course of the past 3 years. The Claimant has during that time travelled to Japan, South Africa, Mauritius and Los Angeles using premium economy or world traveller plus. The evidence discloses that the average additional cost per person per trip is in the order of around £700, including baggage allowance. Even taking into account that the Claimant may have enjoyed some discount as a consequence of her father having been a BA pilot, the figures produced are far lower than those advanced on her behalf in the Schedule.

Given the limited state of the evidence, my valuation of the additional flight costs must necessarily be impressionistic. Mr Audland advanced an annual figure of £600 per person per annum. Given that the additional costs are to include one long haul and two short haul flights, the figure is too low. I allow the additional average cost of flights at £1,250 per person per annum. I accept Mr Audland’s point that children under two years typically travel free, and the final costings should reflect this.

The Claimant seeks £3,000 per annum in respect of additional accommodation costs associated with the Claimant’s disability. The claim is supported by Dr Willson on the basis that it is reasonable for the Claimant to have a ground floor room at an additional cost of £500 per week. Ms Scandrett for her part allows £2,000 per annum. Both appear to have simply plucked figures from the air and their evidence is vulnerable to the same challenge made in respect of additional flight costs. Neither of them is an expert on the topic. I have not therefore found their evidence to be helpful. The Claimant herself considered £1,500 an appropriate additional annual cost for holiday accommodation.

In fact, there is no evidence that, thus far, any additional accommodation costs have been incurred by the Claimant on her holidays. However, I accept that, particularly in her later years, the Claimant will probably incur some such additional costs due to her need for ground floor accommodation. I therefore allow some additional costs from the age of 70 years (when on the agreed Saleh/Hanspal evidence, the Claimant will be using a wheelchair for some outdoor mobility). From this age, I allow the annual sum of £2,000.

The final point that I am asked to rule upon in connection with holiday costs is the additional costs of taxis and car hire, additional baggage costs and equipment hire. Dr Willson’s figure is £2,600 per annum and Ms Scandrett’s figure is £1,000 per annum. I bear in mind that it is likely that in any event the Claimant would have used taxis to get to the airport or to get to an airport rail link and that some taxi travel at the destination would have been used. Equally, I accept that some additional taxi costs will be incurred on the holiday and that there will be some additional baggage charges also. I therefore allow the claim in the lower figure advanced by Ms Scandrett of £1,000 per annum.

The claim for additional transport and travel costs is £399,965. Again, it is a high claim with many elements in issue.

The claim is advanced on the basis of the immediate need for a car which is (a) larger than that which she would otherwise have owned and (b) has a higher chassis to make it easier for her to get in and out. In her report, Dr Willson supports the immediate need for a car with a higher chassis to facilitate and maintain independent transfers and, in later years when she becomes more reliant upon a wheelchair, a car which is also larger (to accommodate wheelchair and prosthetics). She also supports the need for a vehicle with automatic transmission. Dr Willson does not advocate the need for any particular model, or provide costings, as, she reports, the Claimant’s needs are complex and there exists a range of potentially suitable vehicles. She therefore has recommended a needs assessment to be undertaken at a specialist mobility centre.

In fact, no needs assessment has taken place. It appears that the Claimant dispensed with the assessment having purchased an Audi Q5 which she considered suited her immediate and medium term needs. The additional costs associated with the purchase of the Audi Q5 are pleaded at £9,000 per purchase representing the difference in price between the Audi Q5 and the price of an Audi Avant, or similar, which the Claimant would have purchased in any event. In later years, the claim is formulated on the basis of the difference in cost between a VW Caravelle and an Audi Avant, a difference of just under £20,000 per purchase.

Mr Audland rejects the claim for any additional medium term capital costs. As to the claim for a larger car, he points out that, in the medium term, the need is not supported by Dr Willson; that the Claimant accepted that she would have bought a reasonably sized vehicle anyway because of the baby equipment; and any additional space needed for prostheses could be accommodated by a roof stowage system. As for need for a higher chassis vehicle, he reminds me that the psychiatrists accepted that a further course of cognitive therapy would be likely to lead to a good recovery; that the medical experts supported the need for automatic transmission but not a higher chassis; and that when Dr Willson met with the Claimant for the purposes of the report, the Claimant was still driving her Golf and she reported no difficulties. As for the proposed purchase of a VW Caravelle in the long term he observes that this claim has no evidential underpinning whatsoever.

There are a number of problems with the claim for additional disability related vehicle needs in the medium term. The Claimant accepted that she would have needed to buy a larger vehicle in any event to transport children and their paraphernalia (although I accept that she said that she did not think that the family would have bought a car as large as an Audi Q5). The claim for a larger car is vulnerable to the challenge that any disability related equipment could reasonably be contained in a roof stowage system. As for the need for a car with a higher chassis, I accept Mr Audland’s point that both Dr Mallett and Dr Baggeley considered that a further course of therapy would produce a good response. Mr Arney argues that this conclusion does not mean that all of the Claimant’s symptoms will resolve. I accept this, but note that neither Dr Baggeley nor Dr Mallett suggested that such residual anxiety symptoms would be alleviated by her using a car of particular size or specification. I therefore do not find that there is a reasonable disability related need for a larger car or a car with a higher chassis.

Even if I had found otherwise, there remains the fundamental problem that the associated additional claimed costs are just not substantiated. Dr Willson made clear in her report that there exists a range of potentially suitable cars, hence her proposal that there should be a specialist assessment. It does not follow that, had an assessment been undertaken, a car costing more than an Audi Avant would have been recommended. I do not find that the Claimant’s personal selection of a vehicle is an adequate or reasonable substitute for a specialist assessment. Nor is this a topic where judicial nous or common sense can be legitimately used to plug the gap in the evidence. Research, or specialist knowledge, is required: hence Dr Willson’s proposal that an assessment be undertaken.

For all of the above reasons I therefore reject the claim for additional vehicle costs in the medium term.

As for the claim for the additional capital costs associated with the purchase of a “people carrier” such as a VW Caravelle, I accept Mr Audland’s submission that there is no rationale for this vehicle (rather than any other) being advanced in the Schedule. It is not based on any specialist assessment. Mr Arney sought to provide the evidential basis for the claim by drawing my attention to the Claimant’s statement of truth in the Schedule and her confirmation that the document was a fair representation of her claim for future losses. This does not answer the point, any more than in respect of the claim for the Audi Q5, that there will be a range of suitable vehicles, no doubt with a range of costings. The claim for the Caravelle therefore founders for the same reason as the claim for the Audi Q5 and I reject it.

The Claimant claims that, because of her disability, she will need to drive a reliable car and will therefore need to replace her car at more frequent intervals. She told me that she would, before her accident, have replaced her car relatively infrequently perhaps every 6 or 7 years or so, but will now need to replace her car every 3 years. Dr Willson supported the claim on the basis that the Claimant would find it more difficult to manage because of her mobility problems if she were to break down at the side of the road with the children in the car. Mr Audland rejects the claim on the basis that the Claimant would have wanted to drive a reliable family car anyway and she will benefit from AA or RAC roadside cover anyway in the event of breakdown.

I do not find that the need for more frequent replacement of vehicles is made out on the evidence. I accept the Defendant’s submission that the Claimant would, now that she has a family, want a reliable car in order to minimise the risk of roadside breakdowns. Nor do I find that the Claimant is at any greater risk, in the event of the breakdown at the side of the road, than any other person, with or without children. Dr Willson’s scenario of the Claimant struggling along the hard shoulder, children in tow, to find help at the nearest service station did not ring true to me. The Claimant will doubtless use her phone to call for help from the AA or RAC. I do not see her as being in any way disadvantaged in this respect by reason of her disability. I reject the claim for more frequent replacement vehicles.

I allow the claim for additional transport and travel costs in the following respects:

The Claimant seeks £766,168 for lost earnings from her career in travel marketing. The claim is formulated using the Ogden 7 methodology in the following way:

The Defendant challenges both the assumptions upon which the Claimant’s case is founded and the methodology.

I have already set out my views of the Claimant’s character. She is dynamic and ambitious. Her CV demonstrates that this extends to her work also. She has worked virtuously continuously since leaving university. She clearly enjoyed her work. Her enthusiasm is illustrated by her email to her employer of December 2013 (before she had even been discharged from hospital) in which she said “ I am hoping to return to work in some capacity before six months is up. Whether it is from home or doing just a few days a week in the office, I think I will find it hard to stay away for too long!... I understand the team has been working very well without me – hopefully not too well so I have a job to do when I eventually return..”.

Given her enthusiasm, I have no doubt that the Claimant would have continued working throughout her life and that having a family would not have diluted this resolve. I also find that she would have continued to work until age 67 years. Although the Defendant fairly points out that the Claimant would have wanted to spend as much time as she could with her husband, she told me that, on the basis of his family history, she expects him to continue to be an active travelling companion well into his eighties. I also take into account that the Claimant will wish to continue working in order to fund her children to the greatest extent possible and, at age 67 years, her youngest child will have only just finished college.

I accept that over the course of her working life to age 67 years, it is likely that the Claimant would have been promoted and increased her annual income. She is clearly dynamic and had enjoyed an increase in her earnings during the 3 years which she had been at Cedar from £52,000 - £60,000 gross. For these reasons I do not accept that, in general terms, the proposition that her earnings would have increased is so speculative as to lead me to ignore it. There is however no evidence to support an uplift of the magnitude advanced by the Claimant. The Claimant herself did not give evidence, save in the most general terms, concerning her uninjured career growth. There is no evidence of the range of jobs for which the Claimant would have been suitably qualified; the sort of competition she would have faced; whether earnings for editorial and marketing work tend to plateau and if so at what level.

An expert may have been able to assist the Court. Certainly, a senior colleague or comparator would have been able to do so. Although Ms Huxley, the work colleague from whom I heard, spoke of the Claimant’s competence, notwithstanding her injuries, she did not address the Claimant’s uninjured earnings trajectory.

In her witness statement, the Claimant referred to her colleague, Kerry Smith, as a comparator (of similar experience and seniority). She said that Kerry Smith had recently been promoted to the post of Editor in Chief, a post which she thought she would have had an 80% chance of getting but for her injury. However, it was clear from the documents which were put to her in cross examination that Kerry Smith had not been promoted either in status or salary; nor would the job have been open to the Claimant as it amounted to no more than a small extension to Kerry Smith’s existing role. The Kerry Smith “promotion” was therefore something of a red herring as a comparative exercise. It certainly does not help me form a view on the Claimant’s uninjured earnings capacity.

Nor do I have reliable evidence of the Claimant’s earnings over the course of the years before she joined Cedar in 2010. Although I note a consistent working track record, I have not been told of the level of her income from job to job from which I might extrapolate the graph of her earnings going forward from 2013.

I take into account that the Claimant’s salary had increased from starting at £52,000 to £60,000 over the course of 3 years. This is a healthy increase in salary for the timescale involved (even bearing in mind that the Claimant may have been started on a low salary which was then increased to the market level as she proved herself). It demonstrates that the Claimant was good at the job and valued. It is likely that one way or another her earnings would have gone up. I also bear in mind the Claimant’s drive and ambition. However, given the limited evidence available to me my judgment on the Claimant’s future uninjured earnings trajectory must necessarily be conservative. I find the Claimant’s uninjured average net salary over the course of the next 24 years to be in the order of £49,000. This grosses up to around £70,000.

The Claimant is currently earning £33,360 net from her working four days per week and I accept this figure as the appropriate multiplicand. There was evidence given to me by Ms Huxley (a work colleague) that the Claimant was continuing to work effectively and to a consistent high standard. However, given her pain, fatigue and the other demands on her finite resources I consider that her earnings will now plateau at that level. I do not accept that she will return to work for five days per week or that there is even a chance that she will do so, particularly given my finding that she will have another child.

The real disputes in respect of her mitigating earnings are whether I should apply an Ogden 7 reduction factor to the multiplier and, if so, what the appropriate reduction factor should be.

I reject Mr Audland’s submission that the application of a reduction factor would amount to double recovery given the differential between the Claimant’s injured and uninjured multiplicand. Although this was the approach taken by Owen J in Clarke v Maltby [2010] EWHC 1201, his approach was fact specific. More generally, the purpose of the Ogden 7 reduction factor is to reflect that, by reason of a disability, a claimant is more likely to experience periods of time when he or she is not working at all and that periods of unemployment may be longer because of the disability. As the text of Ogden 7 sets out at paragraph 33 “under this method, multipliers for loss of earnings obtained from Tables 3 – 14 are multiplied by factors to allow for the risk of periods of non-employment and absence from the workforce because of sickness”. I therefore find that a reduction factor should be applied to the multiplier. It does not amount to double recovery.

As to the methodology, the text of Ogden 7 sets out that the reduction factors in Tables A to D take into account employment status, disability and educational attainment as the key factors (demonstrated by the Verrall/Wass research) affecting a person’s future working life but that those factors are intended to be used as a “ready reckoner” to produce an initial broad adjustment to the multipliers. It is then legitimate to adjust the factors upwards or downwards to reflect features of the particular case. Such adjustment is not impermissible judicial tinkering. Given that there is no dispute but that the Claimant is properly categorised as “disabled” such as to come within the Ogden 7 approach, the question for me is whether I should adjust the reduction factor of 0.6 upwards or downwards to reflect the Claimant’s particular circumstances.

In this context I note the following features which would justify a deviation from a reduction factor of 0.6:

Taking these factors into account, I find that an uplift to the reduction factor is appropriate in the Claimant’s particular circumstances. I am not however persuaded by Mr Audland’s submission that I should increase it above the mid-point between Table C and Table D (non-disabled and disabled). I find that the appropriate reduction factor is 0.7. Applying this reduction factor to the multiplier for the Claimant’s residual earnings capacity produces a multiplier of 0.7 x 24.89 = 17.42.

From the final figure to be produced by the parties on this loss should be deducted the travel costs saved by the Claimant receiving a Freedom Pass. The annual figure is £1,300 per annum.

The final topic which I deal with is the claim for special accommodation and associated expenses.

The Claimant and her family live in Cardross Street in Brackenbury Village in West London. The property is in her sole name, although the Defendant funds half of the mortgage. Mr Carpenter’s flat, also in West London, is rented out. Brackenbury Village is an attractive area and was chosen with children in mind, being in the catchment area of a good school. The house is Victorian, mid-terraced, with three bedrooms and set over three floors. The ground floor has been converted by the Claimant with a kitchen/diner and living space, two bedrooms on the first floor (with the family bathroom on the half landing) and third bedroom and en-suite shower room on the second floor. To the front of the house is a small garden and at the back a small enclosed space which includes a patio and small area of artificial grass. It is common ground between the parties that the house is not suitable for the Claimant in her injured state and it is reasonable that she move. This is the extent of the agreement between the parties under this head of loss. I heard evidence from Mr Tom Wethers (for the Claimant) and Mr Paul Vipond (for the Defendant) on the various points in issue.

Surprisingly, the parties were unable to agree the current value of the property. The contending figures are £1.5 million, £1.4 million or £1.45 million. The Claimant told the Court that a local estate agent had recently valued the property at £1.5 million. Mr Vipond thought that the value of the property was £1.4 million (and this figure was then adopted by Mr Wethers in his evidence) but the experts had then agreed the value of the property in their joint meeting at £1.45 million. Neither expert is an expert in valuation, let alone in valuation of properties in London. Equally, I take their point that estate agents will frequently inflate the value of the property to capture the chance to market the property only to then recommend accepting a lower offer. With this in mind, I find that the current value of Cardross Street is £1.45 million.

A good deal of time was spent at trial examining whether the Claimant would have moved anyway, notwithstanding her injuries. This topic underpinned Mr Audland’s interest in the number of children which the Claimant is likely to have; how often and for how long Mr Carpenter’s daughter, Autumn, would have stayed at the house and the many different ways in which Cardross Street could be extended or carved up to provide sleeping accommodation and sufficient storage for its inhabitants if the family had intended remaining living there.

The Claimant stated that she would have remained living in Cardross Street. Even if she had gone on to have two further children she would have remained there given the potential to build a small bedroom on top of the existing bathroom. Now that she intends only to have one further child, that extension would not be necessary unless she had decided she needed a study/spare bedroom. She told me that she bought the house because of its location which is attractive and generally regarded as being desirable; it was conveniently located for work (including at Heathrow) and it was in the catchment area for good schools. She told me that, although in her witness statement she had said that Mr Carpenter’s young adult daughter might come to live with them for a period of time, this had not happened as she had gone abroad instead. There were no current plans for Autumn to live with the couple. She also said that she did not think that her financial situation would have been sufficient to have allowed a move to anywhere substantially larger.

I do not accept that the Claimant would have moved house in any event. I did not get the impression from her that the house had been bought with a view to re-modelling it and then trading up: the location of the house had been selected with care, with a view to local schools and it had evidently been re-furbished to a high standard. I accept Mr Audland’s submission that, if she had intended to have two further children (in addition to Ossian), it would have been a tight squeeze; the extension over the bathroom would provide an extremely small bedroom with space for little more than a single bed and a cupboard. The alternative proposal of bisecting the master bedroom would also produce two small rooms when access was taken into account. However, the trade-off of a house with small bedrooms and limited space for storage of children’s clutter is a house in a desirable, green and accessible part of London. The Claimant said that she would have put up with the small bedrooms (as others in the street have done) and I accept her evidence. In any event, I have already found that the Claimant is likely to have only one further child.

I add that I do not accept Mr Audland’s submission that the Claimant has been disingenuous in her various accounts concerning Autumn living with the couple. I recognise that at various times in the past, the Claimant has stated that Autumn was to come to live in Cardross Street but I accept that at the time when made those various statements were genuine. However, Autumn’s plans have changed and she has gone to Australia for a year. These things happen. Even if Autumn had, or would have in the future, spent an extended period of time living with the Claimant and Mr Carpenter, I do not find that this would have led to the Claimant moving to a larger house. It may have prompted the outrigger bedroom being constructed on top of the bathroom or the bisecting of the master bedroom but not a house move. The real attraction of Cardross Street is its location and I find the Claimant would have remained living there.

The parties are some distance apart on the value of the house which is now needed by reason of the Claimant’s injury. The Claimant submits that a suitable property cannot be purchased for less than £2.5 million; the Defendant submits that a suitable house can be bought for £2 million.

There is, at least, some common ground as to the necessary attributes of the new property. The property must replicate the accommodation at Cardross Street in the number of bedrooms and include an en suite bathroom for the Claimant. Given however that bungalow accommodation is impossible to find in West London, both experts have accepted that a lift will need to be installed and that this will involve sacrificing one room per floor. A four to six bedroomed property is therefore needed, depending on the number of storeys. It was also agreed that there must be sufficient storage for the prosthetics and equipment including a wheelchair and scooter in due course. The location of the new property is relevant in two respects: first, the house must be reasonably close to public transport, preferably the tube, to enable the Claimant to walk there and back and, second, the area must be attractive and pleasant, similar to Brackenbury Village. The Claimant submits also that the house must be aesthetically pleasing although this is not necessarily accepted by the Defendant. There are other points of difference: Mr Wethers has factored into his size assessment the need for a therapy/activity room for the Claimant and a guest bedroom on the basis that the Claimant will because of her disabilities have more frequent visitors to her home, rather than travelling to see friends. Mr Vipond has not done so.

Both experts have endeavoured to provide the Court with a guide as to the minimum floor area of the new property. Mr Wethers’ opinion is that a property of a size no less than 200 square metres is reasonably needed. Mr Vipond considers that the minimum floor area reasonably required would be 147.5 square metres but that this figure should be increased by 10% to “better those standards and to allow for plan inefficiencies”. He accepted that some architects would allow 20% over the minimum if there was evidence that the Claimant’s wheelchair use would be more frequent, but remain intermittent. He also said that there would be some architects who would acknowledge the difficulties in finding a suitable property which exactly matched the floor area required; in these circumstances it would be reasonable to allow for up to 25% overprovision (in addition to the 10% or 20% allowance to minimum standards). If the full 25% allowance was made to the base figures derived from a 10% or 20% uplift, then the range of floor space would increase to between 203 and 221 square metres.

For the purpose of estimating the cost of a reasonable property, Mr Wethers and Mr Vipond undertook a review of estate agent particulars:

There is no particularly scientific means by which I can resolve the difference between the parties on the reasonable cost of a suitable property. Review of estate agent particulars (whether by the Court, the experts or the Claimant and her property finder) can never be comprehensive and intrinsically involves an element of “self-selection”. Such a review, even accompanied by a preliminary inspection, is capable of weeding out unsuitable properties but it does not follow that those which remain in the shortlist are suitable. I take Mr Audland’s point that, simply on the basis of the particulars, there are properties which would appear to fulfil the criteria and are valued at under £2million. One such property is the house of 191 square metres on South Side (in Hammersmith), with off street parking, a garage which could be converted and, in its current layout, 4 bedrooms. It was on the market at £1.95 million and sold for £1.8 million. It had been viewed by the Claimant who described it as having great potential, with lapsed planning permission for a side return extension. Equally, I accept Mr Arney’s point that there is a larger number of potentially suitable properties towards the higher end of the bracket of £2 - £2.5 million or indeed over the bracket. Whether any of these properties though, at the low or high end of the bracket, would be deemed by an architect to be suitable to meet the Claimant’s needs involves something of a leap of faith.

My starting point therefore is the reasonable size of the Claimant’s new house. I find this to be around 190 square metres. I accept that Mr Wethers arrived at this figure of 200 square metres on the basis of an allowance for a therapy room which I do not find to be justified on the evidence available to me. The Claimant is an active gym member. He also made an overly generous assessment of the space required for the en suite bathroom and allowed for a guest bedroom without any apparent reasonable justification. On these bases, it might seem that Mr Wethers’ analysis of floor space is grossly exaggerated. However, Mr Vipond’s analysis produced a range within which 190 square metres falls comfortably (from 147 square metres, which is “rock bottom” to 221 square metres as the absolute maximum).

The various estate agent particulars suggest that a property of around 190 square metres might be found in an acceptable West London location for around £2 million. However, I also accept Mr Arney’s argument that the search for a suitable property will be a “difficult brief” and that it may therefore be necessary to look at houses rather larger than 190 square metres in different areas and that properties close to public transport links will always attract a premium and may be snapped up quickly. Taking all these factors into account, I find that the cost of suitable accommodation is likely to be in the order of £2.35 million.

Mr Vipond suggested in his report using the price per square metre of Cardross Street as a cross reference. It was a point taken up with some gusto by Mr Arney. I recognise the value of such an approach as a cross check as, in very broad terms, the price per square metre of a house will reflect something of the quality of the area and proximity to local transport, both of which are legitimate factors for me to take into account in my assessment of the value of the new property. Mr Arney informs me that the price per square metre of Cardross Street is £12,389 (although this was based on a valuation of £1.4 million, rather than the value which I ascribe to Cardross Street of £1.45 million). Using this price and applying it to a property of 190 square metres would produce a figure of £2.354 million. It does therefore reinforce my view that £2.35 million is about the right figure for the Claimant’s special accommodation.

The parties have not been able to agree the removal and other costs of relocation. However, the various sub-heads of loss can now be calculated in the light of my finding that the Claimant would not have moved but for her injury and my finding as to the purchase price of the property now needed.

Given the current negative discount rate to be applied for the purpose of calculating multipliers for future losses, the Claimant would, adopting the Roberts v Johnstone [1989] Q.B 878 formulation, recover a nil award in respect of the £900,000 additional capital cost of special accommodation. The Defendant contends that I am bound by Roberts v Johnstone. Unsurprisingly, Mr Arney submits that I am not bound by the decision and invites me to adopt a different approach and formulation, consistent with the principle of full restitution.

The Schedule of Loss proposed four alternative formulae, none of which link the calculation of the multiplicand to the current discount rate:

This claim appears to be only the second occasion that this issue has engaged the Court since the negative interest rate came into force in March 2017. In JR (a protected party by his mother and litigation friend) v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB), William Davis J was also invited by the Claimant to depart from the Roberts v Johnstone approach. It appears that there were two alternatives urged upon the Court in that case: either an award of a lump sum reflecting the full difference in value between the two properties or an award reflecting the difference subject to the deduction of the award made by way of general damages. There was discussion of other formulae, including the cost of borrowing the money necessary to fund the purchase of the special accommodation. William Davis J expressed no view on the merits of any of the approaches proposed. He considered himself to be bound by the Roberts v Johnstone. Further, he considered that he did not have expert evidence of current or projected mortgage interest rates nor evidence of future trends in net returns from low risk investments. He granted leave but the appeal was compromised very shortly before the hearing.

The Personal Injury Bar Association intervened in the appeal in JR and thought-provoking submissions were filed on behalf of the Association, drafted by Robert Weir QC and Darryl Allen QC. Mr Arney made those submissions available to me, together with an article which Mr Weir had written for the Journal of Personal Injury Litigation (which substantially replicates his written submissions). Indeed, somewhat unusually, Mr Arney relied upon those submissions, notwithstanding that the particular course which he urged upon me (to use the traditional Roberts methodology but substitute an alternative discount rate of 2%) was not one canvassed by Mr Weir either in his submissions to the Court of Appeal nor in the JPIL article. Mr Weir’s submissions focussed upon: a PPO to fund an interest-only mortgage; the payment of a loan to meet the additional capital cost with a charge over the property; making rental arrangements; or paying a capital sum to meet mortgage interest costs. I note in passing that Mr Weir did not endorse the approach urged on the Court of Appeal by the Claimant in JR of a payment of a lump sum minus the general damages figure, an approach which he considered to be unprincipled and arbitrary “in the extreme”.

The first question for me is whether I am bound by the Court of Appeal’s judgment in Roberts v Johnstone. If so then, whatever the perceived iniquities of the Roberts v Johnstone formula given the current discount rate, this is the end of the matter so far as I am concerned. I address this point below. I can do so relatively succinctly.

As William Davis J set out in JR, the underlying rationale for the Court’s approach in Roberts v Johnstone was that it was wrong, as a matter of principle, to award the Claimant the full capital cost of special accommodation. Such an approach would not lead to full restitution, but would result in overcompensation as, upon the claimant’s death, his or her estate would benefit from an asset which had enhanced, rather than diminished, in value. In Roberts v Johnstone, the effect of a formula based upon the notional cost of a mortgage necessary to meet the additional sum required to fund the purchase exceeded the net total difference between the two properties. In the late 1980s mortgage interest rates were running at between 9% and 10% per annum. Not only therefore would the capital asset remain intact but an immediate cash surplus, or “even larger windfall” would be produced.

The Court of Appeal found the answer to the conundrum in the notional cost, or “going rate” of temporarily foregoing the use of the money required to fund the purchase of special accommodation. Stocker LJ found the “going rate” to be 2% per annum on the basis of the analysis of Lord Diplock in Wright v British Railways Board [1983] 2AC 773 of the appropriate interest rate to be applied for non-economic loss. Expert evidence available to the House in Wright had demonstrated that the real return from investments which conferred a risk element were, in times of inflation, “no better than 2%”. Stocker LJ recognised that the interest rate to be applied for non-economic loss may not be thought to be appropriate to economic loss, such as the notional cost of mortgage interest on acquired property; however he reasoned that, where the capital asset in respect of which the cost is incurred consists of house property, the inflation and risk element were secured by the rising value of such a property as bricks and mortar will maintain their value. Lord Lloyd in Wells vWells, saw no reason to regard the figure of 2% as sacrosanct and, in the light of the expert evidence on the average net return on low risk Index-Linked Government Stock in the conjoined appeals before him increased the figure to 3%, thus bringing it in line with the discount rate to be applied for the calculation of multipliers for future loss. The figure has been subsequently “kept up to date” by the Lord Chancellor when exercising powers under s 1 of the Damages Act 1996 decreasing to 2.5% in 2001 and still further to -0.75% in March 2017.

If Mr Arney had seriously intended that I depart from the Roberts v Johnstone formulation, then I would have expected to receive, either in writing or in oral submissions, a reasoned justification for the departure. However, no fully realised arguments were deployed. Mr Arney tentatively advanced that I was not bound by Roberts because, on the facts of that case, the Claimant had already purchased the special accommodation; no practical funding problems therefore arose and there was a legitimate basis for assessing the loss by reference to the notional loss of use of the capital. I accept that the Court of Appeal recognised that the purchase had been financed by a capital sum paid on account on behalf of the defendants by way of interim payments. It was acknowledged by the Court that this “reinforced” their approach. However, it was not suggested in Roberts, (nor has it been suggested in any of the many cases since 1989), that a different method and/or a different discount rate should be adopted to calculate the loss in circumstances where the property has not already been bought by the date of trial. I do not therefore find this to be a sufficient basis for distinguishing Roberts.

The real point which Mr Arney was making to me, both in the Schedule and in his oral submissions, is that the Roberts v Johnstone formula is no longer fit for purpose in the modern context of a negative discount rate. It leads to unfairness and a result which is not consistent with the principle of full restitution. He submits that it could never have been the intention of the Court of Appeal to have devised a formula which resulted in a nil award. However, I note that the problems, or anomalies, which the application of the formula can produce have been present since 1989: the need to fund the property purchase by scavenging from damages allocated to other losses is intrinsic to the Roberts formula itself. As Tomlinson LJ observed in Manna v Central University Hospitals NHSFoundation Trust [2017] EWCA Civ 12, the “robbing Peter to pay Paul” effect of the formula leads to particularly anomalous (and problematic) results in a number of different contexts: in catastrophic injury/short life cases; in cases in which there has been a discount for contributory negligence or a compromise has been reached; in cases in which damages for care needs are to be met by a Periodical Payments Order thus drastically reducing “surplus” income which might be used to fund a property purchase. In these situations, as the Court of Appeal observed in Manna, the extent of the shortfall between the sum needed to fund the property and that recovered may be so great that the property cannot be purchased. The effect of the negative discount rate is to create a further (albeit larger and more extreme) category of anomaly.

But, as the Court observed in Manna the formula is the product of “imperfect principles which have held sway since George v Pinnock.” and I have no doubt that I am bound by Roberts v Johnstone. It cannot be sensibly argued otherwise. Each alternative formulation advanced by the Claimant in this case would produce, if capitalised, a final figure greater than the loss which the formula is intended to address. Each formulation would produce the “windfall” which the Court in Roberts considered to amount to over-compensation. As I have said, so far as I am concerned, that must be the end of the matter. In the circumstances, I make no award in respect of the additional costs associated with the purchase of special accommodation. I note, only in passing, that the basis in principle for Mr Arney’s selection of a 2% discount rate remains unexplained. Further I, for my part, doubt that, if it were to be contended that mortgage interest rates were to be the basis for the loss calculation, it would be sufficient to rely upon the current interest-only mortgage rate: expert evidence on the trajectory of such rates in the future would be required. Such evidence is not currently deployed by the Claimant. Further, although Mr Arney’s alternative formulations included a Periodical Payment Order in respect of the annual costs of an interest only mortgage, this was not the course which he advanced as his primary case. In any event, however, as I have already said, if capitalised even this approach would produce a figure higher than the loss which the Claimant seeks to recover.

Both Mr Wethers and Mr Vipond acknowledge that any property will need to be altered and updated on purchase. The costs are not dependent upon the size or value of the property. On the Claimant’s behalf, the figure of £300,000 is advanced (reflecting the sum of £261,777 which features in Mr Wethers’ report together with additional sums for the lift installation and the installation of a sprinkler system which are harvested from Mr Vipond’s evidence). Mr Vipond proposes a figure of £218,187. I did not receive detailed submissions either in writing or orally on each individual item under this head of loss. Nor did I expect to, given that both of these sets of figures and the costings are, of course, speculative and only broadly approximate in the absence of a suitable property having been identified.

Both experts have allowed for some general alterations to provide level access and replace and widen internal doors. Both allow for refitting of the kitchen and bathroom to a greater or lesser extent, the installation of the lift and general decorative work. I note that Mr Wethers has included:

I also accept that it is reasonable for the Claimant to include within her claim those items which are advocated by Mr Vipond but which did not feature in Mr Wethers’ report, nor incorporated following the joint expert meeting. Those items are the domestic sprinkler system (£18,670) and the higher costs associated with the lift installation (per Mr Vipond £35,500). I find that those costs are reasonable and I allow them (subject to the appropriate adjustment to reflect the costings included by Mr Wethers for the smoke alarm and his alternative lift installation costs).

Taking these matters into account, I allow a global figure of £260,000 in respect of adaptations and alterations.

The additional running and maintenance costs associated with the larger property also remain in dispute. The competing figures are £12,902 per annum (Claimant) and £9,015 (Defendant). It is not clear to me how the Claimant arrives at her pleaded figure: although Mr Arney submits that the figure is derived from Mr Wethers’ first report at pages 543 to 548 of my bundle, the combined total of the additional annual costs for heating, electricity, water charges, housing maintenance, house insurance, council tax and equipment maintenance is in the order of only £8,500 pa. Although a further claim for additional curtains is made, this comprises an immediate capital outlay of £4,000 with annual replacement costs of £486. Given that, on this analysis, the Claimant’s annual figure is similar to that the Defendant, I allow the claim at £9,100 pa.

This disposes of all the matters which are set out in the Issues List provided by the parties. At my direction the parties have drawn up a Schedule of Loss giving effect to my ruling on the final damages award. I append the document to this judgment.

Summary