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||Neutral Citation Number:  EWHC 1036 (QB)
||Case No: HQ09X04497
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JAY
|| JACK FARRUGIA
(A Protected Party by his Mother and
Litigation Friend LORRAINE FARRUGIA)
||- and -
||(1) STEVEN BURTENSHAW
(2) THE MOTOR INSURERS BUREAU
(in substitution for ZURICH INSURANCE PLC)
(3) QUINN INSURANCE LIMITED
Nicholas Heathcote Williams QC and William Latimer-Sayer (instructed by Stewarts Law LLP) for the Claimant
Nicholas Braslavsky QC (instructed by Lyons Davidson) for the Third Defendant
Hearing dates: 18th 21st March 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE JAY:
- This is a claim for damages for personal injuries following a catastrophic road traffic accident which occurred on 7th November 2008. The Claimant, who was born on 24th August 1991, was aged 17 at the time of the accident and is now aged 22. The brief circumstances of the accident were that Jack (as I am now usually going to address him) was a front-seat passenger, wearing his seatbelt, in a car driven by the First Defendant. The driver lost control of the vehicle and a collision occurred on the wrong side of the road with a stationary van.
- The issue of liability has been resolved in Jack's favour against the Third Defendant as the relevant "road traffic insurer" under Section 151 of the Road Traffic Act 1988. Issues arise as to the future solvency of the Third Defendant, which I will be explaining later. It follows from what I have said that this is a trial on the issue of quantum only.
- In fact, the majority of the quantum issues have been resolved by agreement between the parties but the most valuable issue, that of future care and case management, has not; and there is a relatively small miscellany of other issues for me to decide. The agreed heads of claim require Court approval, and I understand that arrangements have already been made for this.
The Remaining Issues
- At this stage it is convenient to list the issues which remain for judicial determination. These are:
i) Life Expectancy. The Third Defendant has no expert evidence of its own on this issue but has sought, in cross-examination, to undermine the opinion evidence of Jack's neurologist, Dr Richard Hardie. I should explain that the life expectancy issue is only relevant should I conclude that Jack is not entitled to damages by way of periodical payments.
ii) Future Care and Case Management. The parties have compromised the claim for past care, but are considerably apart in financial terms but not in truth on issues of principle or approach as to the future. They agree that Jack needs 24-hour care but they are not agreed as to the level of daytime and night-time care. This is the most important issue in the case for me to resolve. There are other less important care-related issues which I am also obliged to address.
iii) Periodical Payments. Here, there are two issues for me to address. The first issue is whether I am satisfied that the continuity of payment of any periodical payments ordered to be paid by the Third Defendant is "reasonably secure". The second issue is whether periodical payments are appropriate and in the Claimant's best interests: Mr Heathcote Williams QC confines his submissions that they are to the issues of (i) damages for future care and case management, and (ii) damages for future Court of Protection and Deputy's Costs (as to which the parties are agreed on the amounts).
iv) Provisional Damages. The Claimant's case is that damages for future care and case management, whether awarded as a lump sum or as periodical payments, should be provisional or variable (as the case may be) to reflect the contingency that he might develop uncontrolled epilepsy.
- The parties are to be commended for having agreed the majority of the quantum issues in this case. As a result, a considerable amount of expense, of court time, and of personal stress has been spared. I should also record that the trial was conducted by Counsel with great economy, efficiency and skill such that the oral evidence and submissions occupied only 3 days of Court time. The issues which could not be resolved consensually are such that the need for judicial determination was always on the cards.
- Jack led an exemplary and admirable life before his accident. He was studying for a Level 3 BTEC Diploma in Sports Performance and Excellence at South Downs College. The Claimant's skeleton argument describes him fairly and accurately in my view as a confident, personable young man, a natural leader, and in excellent physical health and fitness. He had shown great promise as a footballer and it is probable that his career would have taken him in that direction, and/or towards sports or leisure management.
- Jack sustained severe, life-changing injuries on 7th November 2008. These have been set out in various places in the voluminous documentation before the Court, but for the present purposes I may read from paragraphs 1-12 of the Joint Statement of the expert neurologists, Dr Richard Hardie for the Claimant and Dr Oliver Foster for the Third Defendant, dated December 2013 [A/13/196-197]:
"1. On 7th November 2008 when 17 years old the Claimant suffered a very severe traumatic brain injury with skull fracture, as well as various thoracic injuries including pneumothorax, rib fracture and pulmonary contusion.
3. As a result of the index injuries, he was in a coma for more than a month and required intensive care, assisted ventilation and active measures to reduce extremely elevated ICP. He suffered recurrent epileptic seizures despite prophylactic medication. He needed a tracheotomy for more than 7 months, remained a hospital in-patient for more than 12 months, and was eventually discharged home more than three years after the index event.
4. Secondary to the index injury, the Claimant has been left with multiple neurological impairments. These include severe global cognitive impairment; generalised and partial seizures; abnormal eye movements; anarthria and aphagia, i.e. inability to speak and swallow; asymmetric spastic tetraparesis; and double incontinence. The previously identified soft tissue contractures have improved considerably and the intrathecal baclofen pump is no longer operating.
5. The Claimant still has profound communication and physical disabilities, is doubly incontinent, requires total nursing care, and remains totally dependent upon artificial PEG feeding for all his nutrition and hydration. His bladder has to be catheterised intermittently but regularly to ensure complete emptying.
6. Given the extent of his intellectual impairments, the Claimant has lacked sufficient mental capacity both to litigate and to manage his property and affairs ever since the index event. He cannot understand or retain information to any useful extent, and he has great difficulty communicating. On the strong balance of probabilities this will remain the case permanently.
7. He has continued to suffer a combination of focal post-traumatic and infrequent generalised seizures attributable to his brain injury despite taking three different anti-epileptic drugs. It is likely that he will continue to suffer lifelong epilepsy, and the probability of remission is very low indeed.
9. In addition he continues to be susceptible to complications of immobility including kidney stones and frequent chest and urinary tract infections requiring antibiotics and hospitalisation on two recent occasions.
10. There is no likelihood of any further spontaneous improvement in the Claimant's condition at this stage more than four years since the index injury. For the avoidance of doubt, the Claimant will never be capable of any remunerative work in the future.
11. It is entirely appropriate that the Claimant now has accessible accommodation with his mother and brothers, and that he is supported by a 24-hour care package. There will be a lifelong requirement for case management. He will probably always need 24-hour support to meet all his care needs and to ensure his safety.
12. Because of his significant night care needs we consider that he should have at least one waking carer, and probably a second sleep-in carer. It is possible that his night care needs might reduce slightly over time. However, the Claimant's detailed future care needs should be the subject of a separate report by an appropriate care expert. "
- I had the benefit of observing Jack first hand; he wanted to be in Court whilst his mother, Mrs Lorraine Farrugia, was giving evidence. I need to remind myself that I am not an expert in these matters, but it did appear to me that Jack has some understanding of what is going on around him. The papers refer to Jack's "great sense of humour", and I observed flashes of that from his demeanour.
- It is relevant that Jack is 195cm tall and weighs 92kgs. I have no doubt that he weighed less before his accident, but he is by no means obese now. He is, however, a large young man who must represent a considerable physical challenge to his carers. Sometimes, he lashes out when frustrated.
- The events of 7th November 2008, and their aftermath, have been a tragedy for this admirable young man and his family. Here, I am referring to his mother, Lorraine, and his father, Laurence, from whom I heard directly; and his two younger brothers Joe and Tom. These consequences have been both physical and psychological. Jack's parents - in particular Lorraine but I am certainly not overlooking Laurence - have worked tirelessly in his best interests. Fortunately for them, all the stress associated with this litigation over the past four years or so is about to come to an end.
Jack's Care Regime
- Mr Heathcote Williams for the Claimant has provided me with an extremely helpful Opening Note and Chronology. For present purposes I need to bear in mind, but not to set out, the relevant detail. I propose to summarise the position in the following manner.
- Jack remained in hospital until 12th January 2009, when he was transferred to RNHRD, Bath. He underwent rehabilitation there until 28th October 2010 when he moved to Glenside Manor, near Salisbury, where he remained until 4th January 2012. At that point he was discharged to his mother's home at 67 Stride Avenue. This property was unsuited to Jack's needs, and on 4th July 2013 the family moved to an address in Havant Road, Drayton, Portsmouth.
- Jack's initial care regime at 67 Stride Avenue was unsatisfactory. He started with an employed care team which included his mother, brothers and several family friends. Given that there was insufficient room for a second, sleeping carer to stay, the regime operated on the basis of one waking carer and Lorraine Farrugia being called on to assist, whenever necessary. I shall be explaining the nature and extent of Lorraine Farrugia's assistance when I come to summarise her evidence.
- In December 2013 a specialist care agency, Team Brain Injury Services ("TBIS") was recruited. I imagine that Lorraine Farrugia was at her wits' end by then. The TBIS regime, which is still in place, comprises:-
i) Two daytime carers working 15 hours, from 7am to 10pm (first shift, 7am to 2.30pm; second shift, 2.30pm to 10pm).
ii) Two night-time carers working 9 hours, from 10pm to 7am (of these, 1 carer is designated as "waking carer", the other a "sleeping carer").
iii) An independently-appointed Case Manager, Mrs Mary-Ann Darlow.
- This is the status quo but issues have arisen as to how long it will or should last; whether a directly-employed regime would be preferable; and, in any event, what is reasonably required. It should be explained that under a directly-employed regime the daytime carers would be working for 14 hours and the night-time carers for 10 hours.
The Lay Evidence
- I heard live evidence from Mrs Lorraine Farrugia, Mr Laurence Farrugia, Mrs Jane Bennett, and Mrs Mary-Ann Darlow.
- I should say at the outset that I was impressed by all these witnesses. My admiration for the Farrugias has already been conveyed, but I should also record that I was grateful for the careful and measured way in which Mrs Bennett and Mrs Darlow gave their evidence. None of the witnesses made any attempt deliberately to exaggerate or to mislead, and all of the witnesses seemed to me to be reliable historians, subject always to the inevitable frailties of human recollection.
- Ultimately though, few issues in this case turn on the credibility or reliability of the lay witnesses.
- I should also record the Ruling which I gave on the first day of the trial to the effect that, to the extent that witnesses expressed opinions as to what was desirable or reasonably required, I should give little or no weight to those matters. Whereas I might be prepared to draw inferences of my own that because a witness whose evidence I was prepared to accept did something, there may be well have been a good reason for it (on the basis that reasonable people tend not to do unreasonable things), I could not be swayed by a witness' opinion that what she or he did was reasonably required. Some portions of the Claimant's witness statements trespassed outside the proper bounds of admissibility of evidence, although I understand and appreciate how and why it is that witnesses strive to give the court as full a picture as possible.
- Given the relatively narrow ambit of the issues in dispute, I intend to focus only on the evidence which genuinely assists me in that regard. In line with this approach, I will be paying much greater attention to the present position rather than to what happened at various times in the past.
- Mrs Lorraine Farrugia gave me an insight into Jack's "typical day", insofar as any day is truly "typical". Jack wakes up at any time between 4-7am, although this can be dictated by the movement of his bowels. Jack's toilet habits have improved in recent times such that he almost always voids his bowels between 6-7.30am. The day carers arrive, or are supposed to arrive, at 7am, relieving the team of night carers; and whoever is on duty assumes responsibility for managing Jack's bowel movements, which ideally involves the use of the Clos-o-Mat toilet. Lorraine Farrugia explained that she and TBIS are trying to get Jack into a routine where he uses this toilet rather than empties his bowels in bed.
- If the latter happens, and on my understanding it still happens occasionally, a considerable amount of work is required. Lorraine Farrugia explained the position at paragraph 26 of her fourth witness statement dated July 2013 [C1/4/342-3]:-
I am woken up probably 3-4 times a week during the night to deal with Jack's bowel movements; they tend to happen between 4am and 5.30am. If I am on a night shift, I deal with it myself but it is very difficult. I do not like waking Joe or Tom to help me. If I work on my own it takes me in excess of an hour to clean Jack up, maybe longer if I have to change the bed sheets as well. Sometimes I have just cut his clothes off of him it has been such a mess. It is back-breaking work. If there are two of us then it takes no more than 15 minutes."
- As I have already pointed out, the timing of the bowel movements has improved since July 2013. Paragraph 22 of Lorraine Farrugia's fifth witness statement dated 24th February 2014 makes clear that the foregoing pattern continued throughout the autumn of 2013, but I infer that her personal involvement largely ceased when TBIS took over in December 2013. Mrs Farrugia points out that the care logs for the autumn of 2013 do not properly reflect the level of her involvement at that stage, but in my view nothing turns on this.
- Once awake, Jack needs to be got up and showered. It is common ground between the parties that it takes two support workers to roll him over and get him out of bed and into a Sara Arjo Plus for transfer to his shower chair. All transfers, for whatever reason, require two support workers. At the moment, Jack likes to occupy his mornings on parallel bars, on a machine known as a plinth, using gym balls, using his Quest 88 standing frame; or just some of these. By way of example only, it takes two carers 30 minutes to get Jack into the standing frame; he tolerates the frame for about 45 minutes before tiring; it then takes 30 minutes to get him back into his chair. All of this equipment is designed to boost muscle strength and tone, and to facilitate a degree of recreation.
- Jack goes twice a week to LB Healthcare for physiotherapy and sports management sessions. He also likes to go on outings during the day. I was told about bowling, visits to a sports facility enabling Jack to undertake rock-climbing and archery, and visits to the Beneficial Centre where he indulges in gardening and other activities. Jack also enjoys visits to the local beach. On all these occasions, Jack is always accompanied by two carers: one driving the motor vehicle, the other being on hand to cope with Jack's drooling, any choking hazards; any seizures; and if necessary, to carry out suction of phlegm and/or saliva from the throat.
- Jack also needs a nap or bed rest in the middle of the day. The times vary but, insofar as there is any pattern, these take place between 1.30-3.30pm. It all depends on Jack. Sometimes he sleeps, sometimes he lies down and watches the TV. He likes to have a carer with him for company.
- In the evening Jack's activities vary. On some occasions he stays at home and enjoys family time with his brothers. On other occasions he goes out to concerts, the cinema, pantomimes, or nights out with friends at the pub. Jack's carers use a whiteboard and offer up options to him, using the technique of asking closed questions. Jack supports Portsmouth FC and likes to go to matches with his father, subject always to the availability of places at pitch-side. Obviously, Jack will be going to the football whenever Portsmouth are playing at home (on Saturdays or mid-week). Laurence Farrugia told me that tickets are made available for Jack and one carer (i.e. Laurence), leaving the other carer outside with the van. Laurence Farrugia emphasised that he is still able to enjoy quality time with his son, but there are no occasions at least since Jack lived at 67 Stride Avenue when the two of them are alone together without a carer.
- The range of Jack's evening activities must vary according to the seasons. During the trial particular attention was paid to what happened last December (although the Claimant's Appendix 2 takes the story forward into this March), and this was Christmas time with two visits to the pantomime and one Christmas party. The precise activities undertaken will obviously vary in the summer months, but nothing really turns on this.
- Jack is put to bed when he is tired, usually by 9pm. Occasionally, he watches the football with his brothers until somewhat later. Lorraine Farrugia explained that once in bed Jack is attached to a RIG for medication and food. There is a PEG attached to Jack's abdominal region which leads the medication and food directly into the stomach. The first bag of food is attached at approximately 9pm and it takes 3 hours 20 minutes to empty. A night carer then attaches a second bag, this time containing 15mls of magnesium (for bowel management) and 100mls of water. The second bag takes 6 hours 40 minutes to drain. At night, Jack's conveen is attached to a leg-bag, allowing urine to drain into it.
- At the moment, a TBIS waking carer monitors Jack at 30 minute intervals. Both experts agree that this is undesirable.
- Jack suffers from post-traumatic epilepsy which Dr Hardie describes as drug-resistant but not "uncontrolled". I have seen the seizure charts and the Claimant's summary of them. These show 2-4 fits per month with most being of short duration. Dr Hardie described these as focal, not generalised. However, there have been longer fits in the past, and very recently on 10th March 2014, there was a fit lasting 10 minutes. This started at 08.45 and an ambulance had to be called, although in the end Jack was not taken to hospital. Jack's bowels opened on that occasion, as they did on one other fairly recent occasion, namely on 19th February 2013.
- As regards the most recent fit, Lorraine Farrugia told me that it took her and two carers to hoist Jack off the toilet and to call an ambulance. It is clear that all daytime fits require two carers, or at the very least two knowledgeable persons present, to deal with the situation safely.
- Lorraine Farrugia's intentions have evolved over time. At one stage it was clear that she did not want to be involved in Jack's care on a daily basis (see paragraph 68 of her witness statement dated 29th November 2011, [C1/2/34]). Paragraph 26 of her witness statement dated July 2013 [C1/4/342] stated that she wanted to reduce her role but that she still wished to be involved to some extent. That remained the position in February 2014 (see paragraph 27 of her witness statement dated 24th February 2014, [C1/5/369]). The current position is that discussions have been taking place with TBIS for the agency to relax its protocol that family members should not be engaged in client care. Lorraine Farrugia's understanding is that, should TBIS be agreeable, she would provide relief or "floating" cover, and be engaged either daytime or night-time as circumstances dictated. Ms Jane Bennett told me that it was her understanding that it was quite likely that Lorraine Farrugia would be engaged on this basis.
- There is also some doubt as to the future of TBIS' role. On my understanding of the Claimant's formal position in these proceedings, the intention was and is to replace TBIS after 12 months with a directly-employed care regime. But Lorraine Farrugia's evidence was equivocal on this issue she is now adopting a "wait and see" approach and Ms Bennett explained that no effective decision had as yet been made.
- Lorraine Farrugia agreed under cross-examination that there were occasions when Jack preferred to have his mother help him and/or made clear that he did not want the second night-time carer to be woken up. Jack does not "bond" with a number of TBIS personnel. She denied that Jack's daytime activities followed any predictable pattern. She agreed that the domestic routine was predictable "to a certain degree", but did not agree that the later Jack went to bed the later he tended to wake up. In cross-examination, Lorraine Farrugia was reminded that before December 2013 there was only one carer available at night. However, in re-examination she told me that this carer could not manage without her assistance and that this was not just a matter of managing bowel movements; sometimes Jack is chesty and coughs, sometimes he is in need of suction, sometimes he needs to be moved to make him more comfortable.
- I also heard from Mrs Mary-Ann Darlow who I considered was an impressive and careful witness. She is a qualified nurse with considerable experience of cases of this nature. She also has good personal knowledge of Jack's case and of his circumstances. Her role is to ensure that the current care plan is carried into effect. I indicated during the course of my Ruling given on the first day of this trial that I would be treating paragraphs 22-23 of Mrs Darlow's witness statement with appropriate caution, and that remains the position. Mrs Darlow agreed in cross-examination that her information was largely second-hand, gathered from a variety of sources, including her scrutiny of the logs, her talking to the support workers, and her talking to Lorraine and other people involved in this case.
- Mrs Darlow told me that the "going rate" for senior support workers in this geographical location is £12 per hour during the week and £14 per hour at weekends.
- Mr Heathcote Williams deployed Mrs Darlow as the vehicle to introduce the "Moving and Handling Assessment and Handling Plan" prepared by Pam Simpson on 11th February 2014 [F21/42-49]. Mr Braslavksy QC objected to that course, but I ruled against him. This assessment provides some helpful material for the court, but I do pay appropriate regard to the fact that Pam Simpson is not giving oral evidence. This document is not that easy to interpret but my approach to it is that one carer is sufficient for certain manual operations (for example, assisting Jack rolling on his bed), but not others (for example, assisting Jack into a sitting position on the side of the bed, preparatory to getting him into the hoist). All transfers and significant re-positionings require two people ([F21/43] and [F21/46]). Frankly, all of this is no more than ordinary common sense.
The Expert Evidence
- I heard from Dr Richard Hardie (on the life expectancy issue alone, because the rest of the neurological evidence is agreed), Mrs Maggie Sargent and Mrs Gillian Conradie. Given the nature of the dispute in relation to Dr Hardie's contribution, I propose to deal with his evidence as a self-contained unit later in this judgment.
- It is right that I set out my assessment of Mrs Sargent and Mrs Conradie. Both are extremely experienced, although I must conclude that Mrs Sargent's relevant experience is even greater than Mrs Conradie's. Both have done a considerable amount of work on this case, reading the voluminous care records and undertaking internet research at the margins in relation to the subsidiary issues. Both displayed the same slight tendency to be parti pris and to advocate their respective positions.
- To be fair to these experts, much is common ground between them, and it is right that I start with that. Both Mrs Sargent and Mrs Conradie now agree that it would be preferable for Jack to move back to a regime of directly-employed support workers. Both agree that all transfers require two carers. Both agree that at least one carer is required 24/7.
- Mrs Sargent's favoured approach as set out in the Joint Report entails the perpetuation of the status quo with two teams of day carers (working two shifts between 7am and 10pm) and, as regards night-time care, one waking carer and one sleeping carer now "with the proviso for two sleep-ins should he become more settled" [A/14/203]. On that hypothesis allowance should be made for 2-4 weeks' waking care per annum to reflect the occasions on which Jack may be ill and a sleeping carer has to undertake ad hoc waking care for the relevant nights. It was explained to me that a sleeping carer (paid on the basis of 6 hours, not 10) transmutes into a waking carer (paid on the basis of the full 10 hours) if she or he is awoken more than twice a night. At present, the TBIS night team works for 9 hours (although they may be paid for more), and so this explanation must relate to the directly-employed model.
- Gillian Conradie's position as set out in the Joint Report is that a modest adjustment should be achieved in relation to the day care provision, so as to reflect considerations of reasonableness and proportionality. Furthermore, it is undesirable and de-motivating that carers should be under-employed, which represents the current state of affairs. In Gillian Conradie's view, Jack is in a regular and predictable routine of activity, and there are several periods during each day when he does not require two carers simultaneously. On my understanding of the Joint Report [A/14/201], Gillian Conradie's proposal as regards day care is that there should be one carer working for 14 hours a day (in reality, s/he will be two carers working over two shifts), and a second carer "for 7 hours, with the time divided into 3 or 4 shorter periods so that Jack is assisted with personal care at the beginning and end of each day and for a transfer on and off the bed for rest in the middle of the day". My understanding of her oral evidence was that there should be an allowance for 8 hours on this basis, with Lorraine Farrugia providing an additional 2 hours of second carer input.
- As for night-time care, Gillian Conradie's position is that there is a need for only one such carer, not two. She or he should be treated as a sleeping carer. On those occasions when Jack's requirements may be greater, this night-time carer may be converted into an ad hoc waking carer.
- Mrs Sargent's main report was given on 14th November 2013 [D1/11]. By that stage TBIS had not arrived on the scene. Her opinion was encapsulated in the following passage [D1/11/93]:-
"I assess that two carers continue to be necessary in this case because Jack is leading an active programme and is keen to do more such as being toileted during the day and getting out more. Unfortunately it is very difficult to recruit enough carers and Jack is not having the private therapy that he needs. He needs two carers at night because of having a bowel action at 4am or 5am. I understand that because of the problems with recruiting carers, Team Brain Injury have assessed him and have put together a costing for future care that will not account for the family in part of it."
- Mrs Sargent reviewed the position on 14th February 2014 [D1/12]. She endorsed the change back to a directly-employed model after 12 months. Her opinion on that occasion was encapsulated in the following passage [D1/12/103-104]:-
"Jack needs two carers for all personal care, transfers, to provide spontaneity and flexibility for all activities, and exercise, and it is envisaged that in future he will be given the opportunity of being toilet trained. I note the risk assessment of Pamela Simpson, which confirms the need for two carers for positioning Jack in bed. I also note that the Team Brain Injury risk assessments allowed for two carers both in and out of bed.
I therefore continue to assess the need for two carers during the day and at night. At present I note that the neurologists agree that Jack will need one waking night-carer and one sleep-in carer. There is a need for ongoing waking night care at this stage, as carers need to check on him throughout the night because of his epilepsy, feeding, his medication and his continence. However in my experience it may be possible to reduce in future to two sleep-in carers if he is more active during the day."
- Mrs Sargent agreed in cross-examination that Jack did not need monitoring every 30 minutes and that Jack's needs could be met by two sleep-in carers "really quite soon" (enhanced by the provision of 2-4 weeks' of ad hoc waking care as necessary). An appropriate alarm system would obviate the need for a waking carer to deal with the risk of an epileptic fit at night. Further, she agreed that suction could be carried out by one carer. Mrs Sargent accepted that before the advent of TBIS Jack was repositioned by one night carer, and Lorraine was available to deal with bowel emergencies.
- Mrs Sargent did not accept that Jack's needs could be met by one sleeping night carer. She said this:-
"He is 6 foot 5 inches. He weighs 92 kilograms. He has an ability to hit out. I would be concerned with [just] one person"
- However, Mrs Sargent also agreed that major repositionings were only rarely required at night. On the other hand, my understanding of Mrs Sargent's evidence was that two carers would be required at night to deal with any of the following: bowel management; vomiting (there is at least one record of this in the care log, possibly two); and epileptic fits. The seizure chart contains no record of a night-time fit in February or March 2014, but as Mr Heathcote Williams has pointed out, there are a number of examples of such fits last year.
- It was put to Mrs Sargent that there was no reference in the care log to the second carer being awoken at night, but here again Mr Heathcote Williams was able to draw Mrs Sargent's attention in re-examination to a number of occasions on which that happened (see later). There are other occasions on which Jack spurned the possibility of a second carer and wanted his mother.
- As for the issue of bowel management, Mrs Sargent pointed to the fact that there had been some incidents of bowel actions occurring between 6-7am. If that happens, Jack is either disposed to wait until the arrival of the day carers (it is acceptable that he do so but for no more than about 20 minutes), but on other occasions the second carer helps out.
- As for the daytime, it was put to Mrs Sargent that there are periods of time during the morning and evening when the second carer is unnecessary. Mr Braslavsky was clear as to the second period (6-8pm) but he was less specific about the first save that it should be in the morning. In any event, Mrs Sargent rejected this proposition however it was being put. Her contention was that Jack's lifestyle and activities were not sufficiently predictable to cater for Mrs Conradie's recommendation.
- In his careful and well-researched re-examination, Mr Heathcote Williams took Mrs Sargent to a number of entries in the care log to support his contention that (i) Jack's routine was not sufficiently predictable during the day to permit the one-carer option at certain times (in particular, there is a degree of variability as to the timing of the afternoon bed rest, and the evening activities varied according to Jack's wishes), and (ii) there are some nights when a single carer could not have managed. At this stage, I do not propose to set out the relevant citations from bundles from F11 and F12 in particular, but I do take Mr Heathcote Williams' point, as accepted by Mrs Sargent.
- As for the night-time interventions, most of these date from December/January when the new regime was bedding down, but I have noted a number of relevant entries for February.
- Finally, and in answer to the point that Jack should be encouraged to go to bed later and to get up later, Mrs Sargent pointed out that it would be very difficult to start the night shift after 10pm; and if it did start later, the tail end of the night shift would routinely have to deal with his bowel movements.
- As already discussed, Mrs Conradie's thesis was that, during the day, Jack's routine could be modified with little difficulty so as to free up two periods of 2 hours each in which only one carer would be necessary, and during the night only sleeping carers were appropriate. She did not dispute that during daytime activities two carers were required. However, her assessment of Jack's daytime routine was that activities were planned on a regular basis during the week, and to the extent that there was an element of fluidity Jack could be gently persuaded into accepting a tighter regime.
- Mr Heathcote Williams explored the issue of predictability with Mrs Conradie in a number of ways. As for epileptic fits, which usually occur during the day in Jack's case but have been known to occur at night, Mrs Conradie accepted that two people need to be available, but that this did not mean at all times. If only one person were available, a family member or another support worker could come and assist. I agree that in such circumstances a family member would usually be present, but not always Mrs Conradie's 1-3pm slot (which I noticed differed from Mrs Farrugia's by 30 minutes) would at least on weekdays - be likely to correspond with a period when only the single carer was available. I do not understand how another support worker could be found to assist at such short notice. Mrs Conradie's also pointed out that there are 440,000 epileptics in the UK who are not cared for by two persons. The obvious riposte is that most of these are not in Jack's position.
- On the same theme of unpredictability, Mr Heathcote Williams asked Mrs Conradie about bowel movements. She agreed that if transfers were consequentially required, so were two support workers. She pointed out that unpredictable bowel movements rarely occur during the day, and contended that it was unrealistic to cater for that contingency in this way. As for the management of night-time bowel movements, Mrs Conradie was firmly of the view that Jack could safely be manoeuvred around his bed by one person even if removal of the sheets was required. The profiling bed assists. In any event, this was the regime which applied pre-December 2013, and Jack has often been known to eschew the second carer.
- Mr Heathcote Williams also explored the issue of feasibility. Could the second daytime carer be engaged with the appropriate measure of flexibility? Mrs Conradie stated that any care regime needs time to "bed down" and assume a regular pattern. She reverted to her point that the care log revealed "a small amount of variability". As she emphasised in re-examination, it was common for support workers to be engaged for periods of time within the day and, provided that appropriate notice was given, these periods could be adjusted to reflect specific plans and contingencies. Mr Heathcote Williams asked Mrs Conradie why Jack should not be allowed to choose what he wanted to do on a daily basis, using the white board. Mrs Conradie's answer was that there are or should be ample opportunities in a well-settled, predictable regime for him to make choices. Furthermore, the care records show that Jack needs to be encouraged to go out. It was important that periods of "family time" are identified where Jack's life is not overburdened by the presence of an almost certainly redundant second carer.
- Mr Heathcote Williams took Mrs Conradie to the support worker logs in order to show that Jack's afternoon bed rest did not take place in any regimented way, whether it be between 1-3pm or 1.30-3.30pm. There was considerable variability as to the start and finish times. Mrs Conradie's answer was that the evidence for December was very clear, and that it showed little variation. But my assessment is that the care logs do not bear Mrs Conradie out on this. Unsurprisingly perhaps, Jack is not as biddable as Mrs Conradie's advice to me would predicate.
- Upon further exploration it was, I believe, apparent that Mrs Conradie was working on the premise that Lorraine Farrugia would be available to help out as an ad hoc second carer at night, should the need arise. That would not be so if the recently-conceived plan for Lorraine Farrugia to be engaged by TBIS came to fruition. In any event, I do not believe that it is reasonable to expect Lorraine Farrugia to have to do this. She has dedicated so much of her life over the last five plus years to the care of her son, and needs a greater degree of freedom. If, on the other hand, she wishes to undertake a support worker role on a commercial basis that is entirely a matter for her.
- As regards the night-time care, the debate between Mr Heathcote Williams and Mrs Conradie revolved around the need for a second pair of hands to deal with "bad" nights, as well as nights where the number of interventions was considerable. Mr Heathcote Williams referred to: suctioning; bowel-opening; the need for medication such as paracetamol; leaking of the conveen; various repositionings, sometimes major ones; temperature adjustments; turning the TV off; offering company. Clearly, most of these interventions would and could be carried out only by one person, but Mr Heathcote Williams' point was that too many of them in one night created the demand for a second carer.
- Mrs Conradie's answer was that all these interventions could be done by one person, and that the interventions requiring two persons were few and far between. I have already examined the issue of bowel movements and the need to get Jack out of bed. There are examples in the care log of two carers dealing with significant night-time bowel movements (e.g. [F12/52], 23rd December 2013; [F12/96], 29th December 2013; [F12/111], 31st December 2013). Mrs Conradie's point was that two support workers assisted because two were there, not because two were reasonably required. As for the epileptic fits, Mrs Conradie's evidence is that a short fit would only require one person safely to deal with. There is a degree of flexibility inherent in Mrs Conradie's regime because more than two interventions at night mean that the sleeping carer is entitled to the waking rate.
- Having summarised the evidence given by the lay and expert witnesses, I am now in a position to turn to the issues I identified towards the start of this judgment.
- As previously indicated, this issue is of no consequence unless I were to reject the Claimant's case that periodical payments are appropriate. For the reasons I will be setting out in due course, I have accepted the Claimant's case on that issue. It follows that the life expectancy issue is of academic interest only, but with the agreement of the parties I propose to deal with it quite shortly, out of deference to the evidence which was given and the submissions which I have heard.
- Dr Richard Hardie's opinion, which I interpret to be an amalgam of an evaluation of the epidemiological evidence and clinical judgment, is that the Claimant's life expectancy has been reduced to about 45-50% of normal [D1/3/26/paragraph 94]. There is a paucity of epidemiological evidence relating to the reduction in life expectancy following traumatic brain injury, but experts agree that the best studies have been those conducted by Professor Shavelle and his team on a Californian cohort. Looking therefore at Table 17.3 in the book chapter by Shavelle et al (2007) [D1/3/26al], it may be seen that a male aged 20 who cannot walk and is fed by others has a life expectancy of 26 years against the general population of 54.7 years. Given that the best available evidence indicates that the average life expectancy in the United Kingdom for a 20 year old male is 66, applying the same ratio as that generated by Table 17.3 (i.e. 26 divided by 54.7 equals 48%) yields a presumptive life expectancy in Jack's case of 30-33.
- It should be emphasised that Dr Hardie has not just looked at the relevant epidemiological evidence. He has weighed what he regards as the favourable factors in Jack's case against the unfavourable ones to arrive at a more nuanced conclusion. The favourable factors include: Jack was, and is, a non-smoker; Jack's excellent physical health; his living in the South of England; excellent care and good family support. The unfavourable factors include: severe global cognitive impairment; an inability to communicate his problems; impaired mobility and ability to exercise; drug-resistant epilepsy; urinary problems; and an inability to swallow. Dr Hardie also takes into account Jack's likely compensation in these proceedings, his good housing and material provision, and the overall quality of his life. Overall, these factors more or less cancel one another out.
- Mr Braslavsky sought to assail Dr Hardie's approach. First, the Californian cohort is not representative of the UK population because the pre-morbid life expectancy for the general population is quite low (namely, for young men aged 20, only 74.7). It is common ground between the parties that this is an atypical cohort, but the fact remains that no more representative evidence is available. Dr Hardie's methodology is crude but no better approach has been suggested. Secondly, inadequate regard has been paid to Jack's epilepsy which is an independent and important adverse risk factor. Thirdly, the "fed by others" sub-group in Table 17.3 does not single out those, including Jack, who are tube fed. The Strauss et al paper, Long-term survival of Children and Adolescents after Traumatic Brain Injury, does single out this sub-cohort (see Table 2 at [D1/3/26av]): this adverse risk factor appears to be important. I do not accept Mr Latimer-Sayer's submission that any significance may be drawn from the fact this paper is looking at children and adolescents: it clearly is in the short-term, but the issue of life expectation takes the story forward into adulthood. Fourthly, Mr Braslavsky points out that Dr Hardie has placed in the favourable side of the scales a number of "soft" risk factors which have no statistical support in Shavelle, whereas epilepsy is a "hard" risk factor which needs to be given specific independent weight. Dr Hardie of course referred to epilepsy at paragraph 94 of his report, but the issue is whether he has given sufficient weight to it.
- I propose to apply the approach obligated by the Court of Appeal in Royal Victoria Infirmary v Associated Hospitals NHS Trust  PIQR Q137, which on my understanding entails an appropriate unison of epidemiological and clinical assessments. Mr Heathcote Williams' Opening Note proceeds on the premise that, since Jack will be aged 22.59 years at the assumed conclusion of this trial, his life expectation to the mid-point age of 53.5 is a further 30.91 years, resulting in a life multiplier of 21.62 under Ogden Table 28.
- In my judgment, and essentially for the reasons advanced by Mr Braslavsky in his skilful questioning as well as his oral submissions, Dr Hardie has not given sufficient negative weight to the PEG tube and to Jack's epilepsy. I would therefore reduce the life multiplier from 21.62 to 20.5, based on a life expectation at date of trial of somewhere in the region of 28.5 years.
The Rival Contentions
- Mr Braslavsky urged me to approach some of the evidence which the Claimant sought to adduce with circumspection, if not a disposition for rejection, because (a) it is very late, (b) matters of opinion evidence have not been tested (for example, the report of Pam Simpson), and (c) the seizure chart arrived on the final day of evidence and cannot therefore be deemed to be reliable.
- Overall, I welcome the Third Defendant's pragmatic approach to the late reception of evidence in this case, and in my Ruling given on the first morning of the trial I set out my views about certain aspects of that. I appreciate that Mr Braslavsky has not had the opportunity to cross-examine Ms Simpson, but ultimately I do not believe that much turns on what she says. The issue between the parties is not - "can Jack be safely lifted and transferred by one carer alone?" plainly, he cannot; but rather, "what are the circumstances in which Jack needs 2 carers to lift or transfer him, and at what times of the day or night?". As for the seizure chart to which objection was taken, this is independently supported by the care logs.
- Mr Braslavsky invited me to accept Mrs Conradie's evidence and to reject Mrs Sargent's where it conflicted, particularly on the basis of what he called the latter's unexplained abandonment of the waking night-carer option, coupled with a sleeping carer. Mrs Sargent is now of the view that Jack can properly be looked after by two sleeping carers, "really quite soon".
- Having regard to the leading authority in this area, namely Sowden v Lodge  1WLR 2129, Mr Braslavsky formulated the legal test in this manner:-
"In approaching that task the Court should be mindful that whilst the compensation should be full it has to be proportionate which in the context of this case means that the compensation should provide care that meets all reasonable needs including foreseeable exigency
That does not extend to speculative and/or unlikely possibility. Achieving that balance is to be determined by the Court on all the relevant evidence received but not by reference to theoretical constructs."
- Mr Braslavsky also makes the point, which I accept, that I should not too readily deduce from the fact that because two carers are available and currently assist in a given instance, it follows that two carers are reasonably required. This is the fallacy of deriving an ought from an is. This fallacy is doubly capable of applying in this sort of situation because TBIS have a commercial interest in prolonging a given state of affairs, and it is human nature that carers who are present will want to intervene to help Jack, even if that may not be reasonably necessary. I bear these points in mind, but they only travel a certain distance.
- Mr Braslavsky contended that the pattern of the last three months or so has been that Jack has settled to a more predictable routine. There was understandable turmoil in December and January associated with the advent of TBIS. The inference from Mrs Sargent's concession ("really quite soon") is that the situation will continue to improve.
- Alive to the point that I had expressed an interest during the course of the oral evidence of how far one need go as regards accommodating Jack's expressed wishes, Mr Braslavsky accepted that Jack should feel "empowered" to make his own choices, but it should continue to be borne in mind that the options presented to him on the white board are coupled with closed questions, and in reality a measure of restriction of freedom of choice applies to all of us.
- As for daytime care, Mr Braslavsky's key point was that it is commonplace for a care package to include part-time and flexible hours, and this flexibility can be built into the arrangements to meet Jack's social activities and outings. Events can properly be planned ahead by the team leader without unreasonably impinging on Jack's autonomy. Furthermore, Jack's routine has become more predictable of late, and "the possible confounding events requiring two carers in the four hours when only one is present are few and far between". Here, Mr Braslavsky was referring to seizures and bowel actions. Overall, the chance of occurrence is low, and the consequent risk is also very low. As for night-time care, "there are only a few events which could theoretically occur during the night hours which would require two carers. In practice, particularly now, those events either do not occur at all or are rare". In February and March 2014 (to date) there have been no night-time seizures, and fits of short duration can be handled by one carer. Major repositioning does not occur at night. Most of the activities enumerated by the Claimant's team are one-person activities, and many can be carried out fairly quickly and/or on the same occasion: for example, turning the TV and lights off; regulating Jack's temperature; attaching the food bag etc. It is bowel management which lies at the heart of the issue, and "now there are very few bowel movements which demand action before the arrival of the day carer at 7am and/or cannot be dealt with by one carer safely and appropriately". Having regard to reasonableness, proportionality and the quantum of risk, Jack's night-time care needs can be addressed by one sleeping carer.
- Mr Braslavsky also invites me to factor into the calculations a figure for gratuitous care to reflect Lorraine Farrugia's continued input. Mrs Conradie assessed that at 2 hours per day.
- Finally, Mr Braslavsky submitted that the provision of one sleeper should also be considered by reference to (a) the provision by Mrs Conradie for 4 weeks per annum additional night care for periods of illness (calculated on a waking carer basis), and/or (b) the ability of a sleeping carer to convert to a waking carer when necessary.
- Mr Heathcote Williams invited me to prefer Mrs Sargent's evidence over Mrs Conradie's, and relied on her greater level of relevant experience. I have already expressed my view on this last point. Mrs Conradie's approach is a "public sector" approach which curtails choice, autonomy and enjoyment; Mrs Sargent's is enabling and facilitative. Further, the Third Defendant's approach entails placing an unfair burden on Jack's family and is unrealistic: the brothers will be leaving home in due course; Mr and Mrs Farrugia need to convert themselves from being de facto carers into being parents, as was of course the position before the accident.
- As for day care provision, Mr Heathcote Williams submitted that Jack's needs are not predictable; that many outings are not pre-planned; that bed-rest times vary according to choice and need.
- Mr Heathcote Williams provided a number of tables which I append to this Judgment. Appendix 1 shows that bed-rest times fluctuate. It is hardly surprising that they do, and I do not find that Jack could reasonably be persuaded to take to his bed on a premise which meets someone else's convenience rather than his wishes. Appendix 2 shows the evening activities occurring between 6pm and 8pm. These have varied in nature and duration, and on most occasions two carers have been present. But that is not always the case, and I have already said that on football afternoons and evenings only one carer accompanies Laurence Farrugia and his son to Fratton Park. Appendix 3 summarises the seizure chart, and I have already examined what this shows. Mr Heathcote Williams added that the first carer's role is to support and reassure Jack when an epileptic fit occurs, whereas the second carer assembles the medication and is on hand to call the ambulance if necessary. If a transfer is required to deal with a bowel motion, a leaking conveen or vomiting then the second carer must be there to assist. Jack cannot be expected to sit in his faeces or urine for up to 2 hours: that would be very demeaning and unhealthy.
- Mr Heathcote Williams further submitted that the Conradie regime would require Jack to remain in his bed, chair or wheelchair for up to 2 hours before the second carer returned. To the extent that Jack's family, in particular his father, takes him out at evenings and weekends, they should be able to do so at will and not be compelled to.
- As for night-time care, Mr Heathcote Williams submitted that I should pay proper respect to the joint neurological opinion that Jack requires one waking carer, probably one sleeping carer, with his needs possibly diminishing over time. Appendix 4 lists the occasions on which more than two night-time interventions have been required. Looking at Appendix 5, it is apparent that a number of these interventions would require two carers, not a single carer who may have been converted into a waking carer on any particular night. Mr Heathcote Williams listed the reasons for Jack requiring two night-carers: (1) cleaning Jack and/or his bedding after opening his bowels (and examples are given of occasions on which this has happened before the day shift arrived: see in particular [G/177], 27th February 2014); (2) the occurrence of seizures (I have already addressed this issue); (3) conveen leaks; and (4) major repositionings in bed. However, I tend to agree with Mr Braslavsky that bowel management is the principal issue, because there are few examples elsewhere. Having said that, epilepsy does not respect the 24-hour clock, and Mr Heathcote Williams was able to point to occasions when fits of short duration have taken place when the night team was on duty. I also agree with Mr Heathcote Williams that, in accordance with common sense, the duration of a fit could only be measured after the event.
- Mr Heathcote Williams reminded me that Mrs Conradie's report [E/4/81] was predicated on there being a waking carer when Jack was ill, and he contended there was a mismatch between that assertion and her oral evidence. However, I regard this as a semantic point because there is no difference in substance between a carer who is hired from time to time to act out as a waking carer, and the same individual who becomes a de facto waking carer having exceeded the threshold of two interventions in any one nightly period.
- Mr Heathcote Williams invited me to place weight on Mrs Darlow's evidence. As I have said, Mrs Darlow told me that she intends to follow Ms Simpson's advice in relation to manual handling. In answer to Mrs Conradie's point, that there are occasions when the second carer may be doing little or nothing, Mr Heathcote Williams relied on Wakeling v McDonagh  EWHC 1(QB), paragraph 46, in support of the proposition that care which is reasonably provided does not have to be used at full capacity.
- Finally, Mr Heathcote Williams submitted that I should in any event be applying the TBIS costings until 31st November 2014 because that agency was engaged on a fixed-term basis for one year, which was an entirely reasonable course of action. There was some mention in the evidence of a three-month notice period but this was not explored further in submissions. I should also budget, it was submitted, for a modest amount of gratuitous family care in addition to the professional care team, and allow an uplift to reflect likely deterioration in the final 1-2 years of Jack's life.
Conclusions on the Future Care Issue
- The relevant legal test is clear: see paragraphs 10-11 of Sowden v Lodge  1 WLR 2129, at page 2137:-
"10. The basis on which damages are awarded at common law is not seriously in issue. Its history was traced by Stephenson LJ in Rialas v Mitchell  128 SJ 704, beginning with the statement of Lord Blackburn in Livingstone v Rawyards Co  5 App Cas 25, 39:
"Where any injuries is to be compensated by damages, in settling the sum of money to be given for reparational damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."
11. The relevance of the Rialas case is that the issue was whether the tortfeasor was required to pay for a 12-year old boy to be cared for at home or whether he should live in an institution. That is a question similar to those in the present cases. On the facts of that case, the cost of caring for him in an institution was lower. Stephenson LJ stated that "what has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable". O'Connor LJ stated:
"There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home, but I am quite satisfied that this is not such a case, and once it is concluded that it is reasonable for the infant plaintiff to remain at home then I can find no acceptable grounds for saying that the Defendant should not pay the reasonable cost of caring for him at home, but pay only a lesser sum which would be appropriate only if it was reasonable for him to live at home and reasonable for him to be in an institution."
Sir Dennis Buckley agreed with both the judgments and added a postscript as to the criteria by which reasonableness should be assessed."
- As previously indicated, I do not consider that the manual handling evidence has much impact on the issues between the parties. Nor, on reflection, does paragraph 12 of the Joint Report of the neurological experts (see paragraph 7 above) carry much weight, because in my view it is insufficiently sensitive or precise to discriminate between the detail of the parties' respective cases.
- As for daytime care, I accept the overall tenor of the Claimant's case that Jack's routine contains at present a considerable amount of unpredictability and fluidity. This is particularly important in relation to his afternoon bed-rest, which occurs at times during the working week when family members either are away from home or ought to be in a position to enjoy the choice to decide, subject always to Mrs Lorraine Farrugia electing to be at home on an employed basis looking after her son. I do not consider that it would be either reasonable or safe to leave Jack in bed with only one carer in the house; there is a range of convergent evidence on this issue, including the evidence relating to manual handling. The chances of a bowel motion occurring at that time are very low; the risk of an epileptic fit is low, but the consequences of the latter are potentially so serious that they should not be regarded as acceptable. Moreover, there is the issue of feasibility or practicality. The second carer would need to be extremely flexible or indulgent to deal with the variability manifested in Appendix 1, and I do not consider that there is any realistic possibility of persuading Jack to be more accommodating or biddable to the needs and conveniences of any carer.
- It is also noteworthy that the Third Defendant has modified its position on this issue. Mrs Conradie's main report was unclear as to when the first "one-carer only" period might present itself, but Mr Braslavsky cross-examined on the basis that it should occur during the morning. As already pointed out, Mrs Conradie's oral evidence latched onto the early afternoon period of bed rest.
- I consider that the evening period, 6-8pm is more difficult. I find that Jack needs to be accompanied by two able-bodied and knowledgeable persons (in terms of his prospective needs in the event of an epileptic fit) should he wish to go out at night. But if he goes out at night with a member of his family, any of whom I would categorise as sufficiently knowledgeable in terms of assembling the medication and calling the emergency services if necessary, I do not accept that two support workers are required. This is not what happens at football matches at the moment, and in the future I would expect family members to want to take Jack to the cinema, to concerts or to wherever, at least from time to time. On such occasions, I find that only one support worker is reasonably required. There will also be nights during the week when Jack does not go out at all. On such occasions it may be unreasonable to require another family member to stay at home to look after Jack under sufferance, but in practice another family member will often be at home on an elective basis.
- In my judgment, this is a difficult and sensitive balance between respecting the personal autonomy of Jack and other members of his family, paying proper regard to what is likely to happen in practice, and avoiding the presence of a supernumerary carer to the extent appropriate. I do not accept Mrs Sargent's evidence that Jack should, in effect, be free to do whatever he wishes at the spur of the moment. I do not consider that Jack's personal autonomy is overridden, or the dictates of spontaneity are unreasonably quelled, by providing for a regime which presupposes a modest degree of pre-planning and organisation. This, after all, reflects the realities of ordinary life.
- Focussing therefore on the 6-8pm slot, and considering weekdays first of all, I would allow for three evenings at the full rate (i.e. two support workers) and two evenings at the gratuitous care rate (i.e. the second carer, the family member, receiving the discounted rate being 75% of the commercial rate). As for weekends, one evening will be at the full rate and another at the gratuitous care rate. However, in my Judgment weekends should be treated in a slightly different way from weekdays because there will be periods "family time", which for these purposes I am treating as lasting for two hours, enjoyed during the day in all sorts of ways and forms: at football matches with Laurence Farrugia; other time spent with Laurence Farrugia and his family; ordinary family outings etc. In my view, these too will require a modicum of anticipation and pre-planning, and may not necessarily correspond with any pre-ordained period on any Saturday or Sunday. However, there is no need that they should, because particularly at weekends the second carer could be engaged on a reasonably flexible basis to accommodate what I am proposing. In my judgment, the gratuitous care rate will apply over a period of two hours on both Saturdays and Sundays to reflect these considerations.
- For the avoidance of doubt, as from 1st December 2014 (see further below) the claim in respect of daytime care must be calculated on the following basis. There will be one carer working notionally full-time over the relevant 14 hour period, and for seven days a week. In relation to weekdays, for three days a week the second carer will also be working full-time, but for two days a week the second carer will be notionally working for 12 hours with the balance of two hours being catered for by family members who fall to be paid at the gratuitous care rate. As for weekends, the first carer continues to be engaged full-time and the second carer is notionally working for 10 hours on one of the days (with the balance of four hours being met by family members at the gratuitous care rate), and for 12 hours on the other day. Finally, I should make clear that this regime shall operate for 48 weeks a year allowing four weeks' holiday for the family. Over that holiday period I am budgeting for two support workers over the full 14-hour period 7 days a week.
- I should also explain that in making these admittedly modest adjustments to the Claimant's pleaded case I have to take a view as to what is likely to happen in the future, save for the last two years of Jack's life which I am going to deal with in a different way. In my judgment, Jack's care needs will continue reduce to a modest extent over the next year or so as the care regime beds down and matters become more predictable. These factors will serve to reduce Jack's care needs over the short to medium term. However, as Jack's family begins to get older, and in particular the brothers move away from home, I can see that his care needs may begin to increase. Both of these factors, favourable and unfavourable, cannot be taken into account in triggering an award of variable periodical payments. However, it seems to me that I can properly take them into account in ascertaining the appropriate care multiplicand, and I do so. I should make clear that, approaching this issue in a necessarily rough-and-ready way, it seems to me that these factors rather cancel each other out.
- As for night-time care, I find for the Claimant on this issue. The merits of the parties' respective cases are quite finely balanced, but ultimately I have been persuaded by Mrs Sargent's evidence (see paragraphs 48-49 above), the Claimant's Appendix 5, the consequences of early bowel movements so graphically described by Mrs Lorraine Farrugia (the chance of which cannot be discounted), and the admittedly low risk of an epileptic fit occurring before the day-team might arrive. These last two contingencies are perceptible and real; they are not in Mr Braslavsky's "speculative" category. I also take Mr Heathcote Williams point that if the directly employed night-care team is working a 10-hour shift after 1st December 2014, this will either start at 9pm (in which case two carers are necessary to put Jack to bed), or at 10pm (in which case two carers are necessary to deal with routine bowel movements).
- The Claimant's draft Schedule proposes a contingent sum for waking night care based on an extra four hours per night three weeks per annum. In my view, this is reasonable. As previously discussed, a third intervention in any nightly period converts the sleep-in carer into a waking carer for that particular night (in which circumstances the entitlement to the additional four hours is triggered), and the three week figure represents a reasonable best estimate of the position.
- The draft Schedule also calculates the multiplicand on the basis of 60, not 52, weeks per annum. This is standard practice and was not put in issue by the Third Defendant.
Case Management and Subsidiary Care Issues
- I describe these as subsidiary issues although a lot of money turns on them. I indicated to the parties during oral argument that the nature of these issues did not require a particularly elaborate or expansive approach in this Judgment. I will not be addressing those matters which have now been conceded or agreed.
- Hourly Rates. I set these at £11.50 per hour for weekdays and £14.00 per hour at weekends. Mrs Sargent did not in fact quite concede the lower weekday rate, but in my view this is a reasonable figure. I have taken into account Mrs Darlow's evidence but this is not determinative. My figure will maintain calibre.
- Team Manager's Additional Hours. On this occasion I prefer Mrs Conradie's evidence. I simply cannot accept that a full week's work is required for this combination of tasks, notwithstanding a good team leader's potential to reduce case management time. The claim should therefore be calculated on the basis of 22 hours per week.
- Team Leader's Additional Hourly Rate. I prefer Mrs Sargent's evidence on this issue, as I have done as regards hourly rates in general. I take the point that a good team leader will also reduce case management costs. The figure to be adopted in the calculations must be one of an additional £5.00 per hour for the Team Leader.
- Miscellaneous Items. I prefer Mrs Sargent's evidence in relation to these issues. Food and other expenses shall be £100 a week; advertising costs £1,800 per annum; training, £1,400 per annum; pay roll, £1,000 per annum; and the figure for insurance is now agreed at £135. I have to say that I agree with Mr Heathcote Williams that Mrs Conradie should have agreed that sum at the outset.
- Case Management Hours. Both experts were quite convincing on this issue, and it is difficult for me to choose between them. I note that the schedule produced by Mr Heathcote Williams on the last day of the trial is based on 120 hours per annum plus travel, which is well below Mrs Darlow's figures. Overall, the weight of evidence disfavours Mrs Conradie, and the claim should be calculated on the basis of Mr Heathcote Williams' draft schedule.
- Case Management Hourly Rates. The charge for Mrs Darlow's services is £97.80 per hour. Again, I prefer Mrs Sargent's evidence on this issue, and the case management claim should be calculated on the basis of an hourly rate of £95.00.
- As for the other matters of principle I have mentioned, my findings are as follows. TBIS rates will continue until 30th November 2014, but thereafter direct-employed rates will apply (as per my previous findings). I make no additional allowance for gratuitous, family care as urged on me by Mr Heathcote Williams. But I do allow a contingency for the likelihood of deterioration in the last two years of Jack's life. The parties will need to give thought as to exactly how that finding is to be accommodated in the calculations, but in my judgment during this period Jack will need one waking and one sleeping night-time carer with no additional element to reflect further contingencies. Rightly in my view, Mr Heathcote Williams does not contend that the Variable Periodical Payments Order should be worded so as to entitle the Claimant to apply for a variation to his periodical payments during his lifetime in the event that his condition deteriorates on this basis: this is likely to happen, rather than subsists as a risk or contingency for the purposes of the relevant regime (considered in further detail below).
- I have invited counsel to recalculate the claim for future care and case management on the basis of the principles and figures I have set out.
- The first issue is whether I can be satisfied that the continuity of payment under any Order I make for periodical payments is "reasonably secure": see section 2(3) of the Damages Act 1996, as amended. Although the Third Defendant formally opposes the making of an Order for periodical payments, Mr Braslavsky advanced only limited submissions on this issue. However, he did draw my attention to evidence which shows that the Third Defendant is likely to enter into liquidation by the end of 2016, at which point it will no longer be in a position to meet its obligations under any Order for periodical payments made in these proceedings.
- Mr Heathcote Williams does not dispute the evidence in relation to the solvency of the Third Defendant. Quinn Insurance Ltd is and has been at all material times a company registered in Eire and is currently in administration in that country. The issue, therefore, is really whether the continuity of payments is automatically deemed to be reasonably secure, being "protected by a scheme under Section 213 of the Financial Services and Markets 2000" (see section 2(4)(b) of the 1996 Act). The Financial Services Compensation Scheme ("FSCS") is such a scheme.
- Given the obvious importance of this issue to his client, Mr Heathcote Williams took me with punctilious care to the relevant provisions of the FSCS Scheme known as COMP [B/10/214-266]. It is unnecessary for me to set out all the relevant stages. I am satisfied that: (a) Jack is an "eligible claimant" (he is both an individual and a claimant in respect of a liability subject to compulsory motor insurance); (b) this is a "protected claim", being a claim under a "protected contract of insurance", because (i) COMP 5.4.7 requires the FSCS to treat claims by persons entitled to the benefit of a Section 151 Road Traffic Act judgment as if they were claims under such a protected contract, and (ii) the insurance contract in question was issued by the Third Defendant through its office in Northern Ireland (it would have made no difference had it been in Eire) in respect of a vehicle registered in the UK; and (c) the Third Defendant is a "relevant person" because it is an "authorised person", namely an "incoming EEA firm" principally registered in Eire but exercising passported rights to carry out a "regulated activity", namely issuing compulsory motor insurance in the UK in accordance with Schedule 3 of the 2000 Act.
- Given that these conditions have been satisfied, if the Third Defendant should be in default in meeting this claim under the relevant contract of insurance, the FSCS will meet the ongoing liability to satisfy the Periodical Payments Order as and when it falls due. As the FSCS's letter dated 7th February 2014 makes clear [B/5/129], the FSCS may require the Claimant to have recourse in the first instance to the Irish Insurance Compensation Fund and/or (possibly) the MIB, pursuant to the principle in Bennett v Stephens  EWHC 2194 (QB), but in the last resort will have to meet the claim.
- Accordingly, I am satisfied that the continuity of payment under any Order for Periodical Payments is reasonably secure. I note that Irwin J reached the same conclusion, on very similar facts, in Kotula v Eastern Power Networks PLC (unreported) 9th November 2012.
- The second issue is whether it is appropriate to order that there be damages by way of periodical payments in respect of (1) damages for future care and case management, and (2) damages for future Court of Protection and Deputy Costs. This Judgment has determined the quantum of the claim in respect of item (1), and the figures relevant to item (2) are agreed.
- The governing legal test is a simple one: my aim must be to make whatever Order best meets Jack's needs: see Thompstone v Tameside  EWCA Civ 5.
- Again, the Third Defendant does not advance detailed, specific submissions on this issue but it does have a preference for an Order for traditional, lump sum compensation. I am required to have regard to that preference. The Third Defendant is understandably concerned about the uncertainty inherent in the making of a Periodical Payments Order the advantage, from its perspective, of a capital sum is that, subject to the making of a provisional damages Order (which it also opposes), its liability is fixed and crystallised and Mr Braslavsky submits that this is an unusual case.
- Mr Richard Cropper [B/1] has clearly explained how and why, subject to the ascertainment of the exact figures, the making of a Periodical Payments Order in respect of the foregoing heads of claim best meets Jack's needs. Jack's immediate capital needs will obviously be addressed out of the agreed heads of claim, once I have approved the settlement figures. The periodical payments Order is intended to cover Jack's ongoing needs in line with the amounts I have determined are appropriate, or have been agreed. It is plain and obvious that Jack's interests are best served by the making of a Periodical Payment Order in those respects. Not merely will Jack be avoiding all the risks inherent in having to invest and manage a substantial capital sum, he may outlive his predicted life expectancy.
- It follows that I have absolutely no hesitation in determining that the Claimant's best interests are served by the making of a Periodical Payments Order to cover the two heads of claim in question. ASHE SOC 6115 gross hourly pay for all employees will be the index for periodical payments for future care and case management in line with Mr Cropper's evidence and standard practice, and the Guideline Hourly Rates for Solicitors will be the index for periodical payments for future Court of Protection and Deputy's costs as recommended by Mr Cropper since the majority of Court of Protection and Deputy's costs will be the Deputy's fees which are calculated and assessed by reference to the Guideline Hourly Rates.
Variable Periodical Payments
- Under section 32A(1) of the Senior Court Act 1981, the Court has power to award provisional damages to reflect the risk that at some definite or indefinite time in the future the Claimant "will develop some serious disease or suffer some serious deterioration in his physical or mental condition". The Damages (Variation of Periodical Payments) Order 2005 [2005 SI No 841] confers on the Court the power to order variable periodical payments in the same circumstances.
- I refer to the letter from Dr Richard Hardie dated 14th January 2014 [D1/4/27]. In his opinion:
"Finally I have been asked to comment upon the risk of him developing uncontrolled epilepsy. As I outlined in my recent report, his epilepsy already fulfils the criteria for drug-resistant epilepsy, and there must be about a 10% chance of control deteriorating further. However, with the appropriate provision of private neurological input and advice, I consider the risk would be reduced to no more than 2%. In most cases the development of uncontrolled epilepsy would require closer supervision and additional special needs."
- Mrs Sargent's evidence, which I accept, is that Jack's needs would likely increase to a significant extent should this 2% risk materialise.
- In my judgment, it is entirely appropriate that I make a Variable Periodical Payments Order in this case. In Kotula v EDF & Others  EWHC 1546 (QB) Irwin J held that provisional damages and variable periodical payments were appropriate in a case involving a paraplegic who faced a risk, assessed at approximately 1%, of developing a syrinx with significant clinical features. Furthermore, in Loughlin v Singh and Others  EWHC 1641 (QB) Kenneth Parker J held that it was appropriate for a provisional damages award and Periodical Payments Order to be made in a brain injury case where there was an accepted risk that the Claimant would develop epilepsy in the future such that his care needs significantly increased. I accept Mr Latimer-Sayer's submission that there is no difference in principle between (a) epilepsy developing in the first place, and (b) epilepsy worsening, such that a Claimant's care needs significantly increase.
- The Periodical Payments Order should be worded so as to entitle the Claimant to apply for a variation to his periodical payments during his lifetime in the event of his developing uncontrolled epilepsy, and to permit his personal representatives to make such an application, to cover any relevant shortfall, within one year of his death.
- I invite the parties to complete the necessary calculations in line with my Judgment, to agree the form of Order, and to cause this case to be re-listed as soon as possible for a formal Approval Hearing and the finalisation of all outstanding matters.
- The parties have been able to agree virtually all outstanding matters but remain in disagreement as to the form of award for future care and case management in the last two years of the Claimant's life. In those circumstances, I am required to resolve that issue on the basis of the written submissions I have received.
- The Claimant's case is that the correct approach in these circumstances is for the Court to provide for "stepped-up" periodical payments which should commence in 26.5 years time in line with my ruling that his life expectancy is 28.5 years from trial, and the objective is to cover the final two years of his life. The cost of the care regime for one waking and one sleeping carer would be £277,878.14 p.a.. Mr Heathcote Williams submits that this approach has been adopted in other cases, and best corresponds with the principles laid down in Thompstone v Tameside  1 WLR 2207, at paragraphs 107-8. The chance of the Claimant dying before 2040 is exactly the same as the chance of his bettering his life expectancy, so (a) the justice of the situation is met in statistical or actuarial terms, and (b) the Claimant's prospective needs (as opposed to the interests of his estate) are furthered by this approach.
- The Third Defendant submits that the justice of the situation is best met by my awarding a capitalised sum to reflect this contingency. Mr Braslavsky submits that I have power to do this under CPR Part 41 and the Practice Direction, and that the problem with the Claimant's approach is that it fails to achieve what I have already stated to be the desideratum, namely that the Claimant should be compensated on this enhanced basis over the last two years of his life. In reality, no one can predict when that period will begin, and I have not made any finding to the effect that the Claimant's enhanced needs will begin at a certain point in time.
- I prefer the Claimant's submissions on this issue. I fully accept and understand that in practice one probably will not know when Jack's final two years will begin. This is because there are a range of possibilities across the statistical spectrum. These span from sudden death at one end to Jack well "beating" his life expectancy (as found by me) at the other, with all sorts of intervening and supervening possibilities in relation to the need for greater night-time care and its duration. Thus, the prediction which holds that Jack will need enhanced care over the final two years of his life may well have a less than 50% chance of coming about (just is the prediction that he will in fact die in 28.5 years time); it should therefore be understood as representing the statistical mid-point of a range of predictions, and as being more likely to materialise than any other competing prediction. The finding I made under paragraph 108 above is a short-hand way of expressing this conclusion. Capitalising the value of the claim may achieve a form of statistical justice, but (a) so does the Claimant's approach (because the chance of "stepped-up" periodical payments costing the Third Defendant more is exactly the same as the chance of costing it less), and (b) the Claimant's needs are undoubtedly favoured by his Counsel's submission.
- It follows that the Periodical Payments Order shall provide that the annual amount for care and case management shall be the sum of £277,878.14 p.a. as from 15th December 2040.
- Annexed to this Judgment is a Schedule of Variable Periodical Payments which will be reflected in the form of Order which I will be making in line with my findings.
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