Neutral Citation Number: [2008] EWHC 369 (QB)
Case No: NG312656 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/03/2008

Before :

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.
(Sitting as a Judge of the High Court)
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Between :

	ROBERT CORNES
(By his litigation friend Julie Baird)	         
         Claimant	
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	DAVID SOUTHWOOD	       Defendant 

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David Pittaway Q.C. (instructed by Nelsons) for the Claimant
William Featherby (instructed by Greenwoods) for the Defendant 

Hearing dates: 19 February 2008
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Judgment

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.: 

Introduction
1.	The claimant, Mr. Robert Cornes, was born on 12 October 1964. Until he was discharged on 19 December 2005, he was a Sergeant in the Royal Air Force. His trade was electrical engineering. His role involved the servicing and maintenance of aircraft. I was shown his appraisal and report dated 30 May 2002 prepared by his superiors in the Royal Air Force. It was obvious from that appraisal and report that he was very highly regarded. He was based at the time of the appraisal and report at RAF Brize Norton.
2.	On 19 July 2002 at about 11.20 pm Mr. Cornes was walking along Corn Street, Witney, Oxfordshire with his girl friend, Julie Payne. As they passed a bus shelter a Rover 216 motor car driven by the defendant, Mr. David Southwood, collided with the bus shelter and caused it to collapse on Mr. Cornes. In consequence Mr. Cornes suffered a severe head injury involving fractures of the base of the skull and left parietal vault, with bifrontal cerebral contusions and multiple haemorrhages. Physically Mr. Cornes seems to have made a remarkable recovery from his injuries, but his intellectual faculties have been permanently impaired quite considerably. His expectation of life has not been affected by the accident.
3.	After periods of residential care and living with his mother, Mr. Cornes was able to purchase a flat of his own in July 2006. By the date of the trial he lived there on his own, but with the assistance of support workers and the benefit of a case manager.
4.	Mr. Cornes, by his litigation friend, his sister, Mrs. Julie Baird, claimed damages against Mr. Southwood in respect of the injuries which he sustained on 19 July 2002. The claim form in this action was issued on 3 September 2003 and was accompanied by Particulars of Claim. In his Defence served on 13 October 2003 Mr. Southwood admitted liability for the injuries which Mr. Cornes had sustained. On 6 February 2004 judgment was entered against Mr. Southwood for damages to be assessed.
5.	It took a long time for the assessment of those damages to come on for hearing. In the event that hearing was due to take place before me, starting on 19 February 2008. At the commencement of the trial I was told that in fact agreement had been reached in relation to all sums claimed on behalf of Mr. Cornes, save those relating to the cost of future care and case management. It was agreed that, subject to my approval, the other heads of damage claimed had been settled at a figure of £1,100,000.
6.	The first of the issues which remained in difference between the parties was whether a periodical payments order should be made in respect of the future costs of care and case management, as was contended on behalf of Mr. Cornes, or whether damages in respect of that element should be assessed as a lump sum. However, it was agreed that that issue could not be determined at this stage otherwise than by agreement because the requisite evidence to enable the Court to decide what periodical payments should be made, if it were appropriate to order periodical payments, was not before the Court. Consequentially it was agreed that consideration of the question of periodical payments issue be deferred pending decision on the other points in respect of which the parties were in difference.
7.	The next issue was what level of support it was appropriate to assume for the purposes of assessing the future cost of care. Miss Cathy Johnson, the expert called on behalf of Mr. Cornes, expressed the view that the appropriate allowances for support for ordinary weeks of the year should be 40 hours per week from now until the end of 2009, then 28 hours per week from the beginning of 2010 until the end of 2014, and thereafter 18 hours per week for the remainder of Mr. Cornes’s life. Mrs. Gillian Conradie, the expert called on behalf of Mr. Southwood, took the view that the appropriate support for Mr. Cornes was 26 hours per week from a support worker until the end of 2009, and 18 hours per week of such support thereafter.
8.	The third issue between the parties concerned what were described as contingencies. It had two aspects; that is to say, there were two types of so-called contingency which needed to be considered. 
9.	The first of these two types was a contingency for holidays and sickness. Miss Johnson’s assessment of the hours of support required which I have already mentioned was based on such support being provided for 46 weeks per annum. She considered that it was appropriate to allow four support worker weeks in addition with the number of support hours increased to 24 per day to cover holidays. The four worker weeks could either be one worker for four weeks or two workers for two weeks. The point, according to Miss Johnson, was that when Mr. Cornes went away on holiday he would need to be accompanied by a support worker or support workers, and that individual, or those individuals, would be committed to the holiday for the whole of its duration. They could not, as it were, go home at the end of the session. If there was only one worker, he would be on duty 24 hours per day. However, if there were two, at least one of them could have some time off during the holiday. In addition to the holiday weeks Miss Johnson thought that provision should be made for enhanced levels of support for two weeks in each year in respect of sickness. The sickness which this contingency was intended to cover was that of Mr. Cornes. Miss Johnson took the view that Mr. Cornes would need support in addition to the quantities for which she had otherwise allowed if he were ill. So Miss Johnson provided in her assessments for 46 normal weeks, 4 holiday weeks and 2 sickness weeks per annum.
10.	Mrs. Conradie accepted the need for provision to be made for holiday support, and allowed an extra 22 hours per week for two weeks to cover that. However, her view was that the allowances of hours for support which she had made were sufficiently flexible to take account of any sickness on the part of Mr. Cornes.
11.	The second contingency element in issue was that which Miss Johnson made of a four week period of 80 hours per week, plus 32 hours at weekends, and sleep – in cover for seven nights in each year in case Mr. Cornes encountered a crisis and needed this additional support. Again, Mrs. Conradie took the view that such a contingency was unnecessary. She thought that the risk of a crisis was not great and that her proposed regime of support was adequate to cover any crisis which might arise.
12.	The fourth issue was whether the calculation of damages in respect of the cost of future care and case management should proceed on the basis that support would be provided by an agency or by some person or persons directly employed on behalf of Mr. Cornes.
13.	The fifth issue was whether the agreed life-time multiplier to be adopted in calculating the future cost of care claim of 24.67 should be reduced to take account of exigencies of life other than mortality and accelerated receipt, namely, as it was put in the written closing skeleton argument of Mr. William Featherby, who appeared on behalf of Mr. Southwood, those
“including:-
(a) in the light of the accident, an enhanced risk of suicide or other premature death;
(b) in any event, the risks all people run of:-
(i) serious disability before extreme old age;
(ii) the exigencies of extreme old age (dementia, the need for residential care, etc.).”
14.	Mr. David Pittaway Q.C., who appeared on behalf of Mr. Cornes, submitted that the matters for which Mr. Featherby sought a reduction in the otherwise agreed multiplier were either taken into account in fixing the multiplier or immaterial.
15.	The sixth issue was whether it was appropriate to allow a contingency in assessing the costs of case management to cover the sorts of contingency to which I have already referred.
16.	The last issue was what provision should be made in respect of the expenses of support workers in engaging in activities with Mr. Cornes and in going on holiday with him. In her report dated 23 August 2006, at paragraph 10.3.2, Miss Johnson dealt with these matters in this way:-
“There would also need to be an allowance for activities and transport to fund the support workers involvement in activities with Mr. Cornes. The support workers companionship on holiday would also need to be paid for in terms of subsistence, ie accommodation, travel and meals. I would allow £2,000 per year for this. I would also allow £40 per week for activities over the next 18 months reducing to £30 per week for 2010 to 2014.”
17.	Mrs. Conradie did not, I think, address specifically the travel, accommodation and meals costs of support workers on holiday with Mr. Cornes. She did, however, allow £25 per week for expenses on activities until the end of 2009, and £20 per week thereafter.
18.	This judgment is concerned only with the issues which I have identified, other than the question of whether there should be an order for periodical payments.
The joint statement of Miss Johnson and Mrs. Conradie dated 6 February 2008
19.	The resolution of the issues which remain in dispute in this action really depended upon the views which I took of the evidence of Miss Johnson, on the one hand, and of Mrs. Conradie, on the other, as to each of the points which I had to decide. These ladies did in fact prepare two joint statements setting out the matters concerning which they were agreed and those concerning which they disagreed, and the reasons for such disagreements. The first such joint statement was dated 18 July 2007. The second was dated 6 February 2008. In the latter their respective reasons for the positions which they adopted were conveniently set out. The material part of the joint statement dated 6 February 2008 was:-
“2. Both experts recognise that Mr. Cornes needs structure, routine, clear guidelines and consistency of approach and this will be best achieved by case management and mature male support worker input.
3. Support Work
3.1 Both experts agree that he needs support across 6 days a week, initially in order to establish a routine of structure with one day each week free of support to spend time with his mother.
3.2 Both experts acknowledge that Mr. Cornes has never had care to the level which CJ [Miss Johnson] has recommended.
CJ believes that this level of input i.e. 40 hours per week is needed to develop the strategies and systems which will enable support to be reduced in the future. She notes the variability of Mr. Cornes behaviour and the problems of managing such behaviour safely in the community. CJ recommends that support can then reduce between 2010 and 2014 to 28 hours per week.
GC [Mrs. Conradie] notes that since moving to live in his own accommodation in June 2006 up to (and including) the end of May 2007, Mr. Cornes received an average of 20 hours input per week from support workers. He then had no support worker input for two months and from August 2007 has received an average of 26 hours input per week. GC notes that Mr. Cornes has consistently indicated that he does not want and/or will not accept a level of support which he considers to be intrusive. She considers it important that he continues to have a balance of time spent alone so that he can pursue his own home-based activities, and to go out to the local shops independently (which he has done for approximately 2 years), and that support worker input should be provided at planned times for assistance with his achieving his objectives. GC has recommended support for 26 hours per week to 2010 reducing to 18 hours per week thereafter.
3.3 Both CJ and GC have recommended 18 hours per week as the appropriate level of care in the long term. CJ has recommended that this be supplemented by a contingency of support (see below).
3.4 CJ recommends a first contingency of 6 weeks of 24 hours support for holidays and sickness. She notes that Mr. Cornes has travelled to see his sister in Canada on an annual basis usually accompanied by his mother. This cannot be guaranteed to continue, Mr. Cornes’ relationship with his mother has been difficult in the past and he has described problems in his behaviour towards his sister. Mr. Cornes will need to be accompanied on holiday in the future and to be supervised whilst on holiday. A support worker would be on duty whilst on holiday with Mr. Cornes, even if given time off, they would be on call and responsible for him should he get into difficulty. They would not be considered to be on holiday themselves, therefore CJ has costed for 4 weeks of 24 hour car[e] for holiday periods. 
GC agrees that whilst Mr. Cornes has elected in the past to take holidays with his mother to visit his sister in Canada, he should have the option of being accompanied by a support worker in the future (although at interview he stated he hoped to continue to go with his mother in the short term). GC has made provision for a support worker input in addition to the 26 or 18 hours provided on a regular basis (with costs for the holiday); this allows for the support worker to be paid for 40 or 48 hours. GC considers that a support worker will spend time pursuing his/her own activities when away with Mr. Cornes, and in her experience, it is not usual to pay support workers for every hour when they are away on holiday. GC considers that a two week holiday per annum is realistic given the range of day to day recreational activities available, and that he would not require or accept 24 hour care during periods of illness.
3.5 CJ recommends a second contingency of 4 weeks per annum (to accrue yearly if not used). She believes that there will be times in the future when Mr. Cornes behaviour deteriorates when additional support will be needed over and above the regular 18 hours per week which was recommended. This was clearly the case in mid 2007 and she expects that such a deterioration will occur from time to time. In such an instance the availability of additional support worker input for a short period should limit the deterioration and return Mr. Cornes to a stable and acceptable level of behaviour. She has costed for 4 weeks of live in care as a contingency per year but would expect the case manager to use the hours flexibly as needed and for the hours to accrue annually if not used.
GC does not agree that a contingency for support workers is required; she understands that the changes in Mr. Cornes’ behaviour in the middle of 2007 following a change in medication were managed well by the case manager and support workers (who were providing an average of 20 hours input at this time); in fact, GC notes that he had no support worker input for two months between the end of May and August which was during the time when his behaviour had been noted to be problematic. In her view, a sleep-in carer will not be required by Mr. Cornes in the future, and she has seen no other evidence supporting this.
3.6 GC considers that direct recruitment is appropriate and that this would benefit Mr. Cornes by providing higher levels of continuity when compared with using agencies. GC has calculated care costs at an average of £9.50 per hour (noting that the hourly rate of £8.50 had been paid from September 2005 to May 2007) plus 27% for employment costs, with additional allowances for carers liability insurance and training.
CJ has costed for care using the current agency rates. She notes the difficulty the case manager had in recruiting directly when using HomeCare Direct to administer employment. VP Forensics are an agency well experienced in providing support workers for individuals with challenging behaviour such as that exhibited by Mr. Cornes. It is clear that the introduction of their support workers (male) that Mr. Cornes behaviour has been more appropriately managed.
3.7 Case Management
3.7.1 Both experts believe that case management is essential and that the case manager will have a key role in recruiting, training and supervising the support workers. Both experts agree that the case management time currently being provided is excessive and should be reduced. CJ notes that this is explained in part by the case manager, of necessity, supplementing support worker time and in part by the use of a supervising case manager and two other case managers who will need to keep each other informed and debriefed. We broadly agree the number of case management hours, CJ has recommended 8 hours per month whilst GC has recommended 7.5 hours per month. We note the difference in our rates and accept that case management rates vary nationally from £60 per hour to £104 per hour. We would accept a mid point of £9,476.00 for case management from now until 2011.
3.7.2 Thereafter we each have recommended 60 hours of case management time per year as the basic requirement. Costs differ as above and CJ has included a contingency of 10 hours for unforeseen crises which in her experience of working with individuals such as Mr. Cornes will happen. GC disagrees that a contingency for case management will be required, as she considers that by 2011, Mr. Cornes will feel more settled, be able to maintain a regular routine of domestic and recreational activities, and will have formed an effective working relationship with his case manager.”
The reasons why Mr. Cornes needs support
20.	The reasons why Mr. Cornes needs support are not really related to any inability on his part to care for himself in his own home, but rather to the fact that his personality has been altered as a result of the injuries to his head. That change in personality has had two consequences which are of relevance. The first is that he is prone to manifest anti-social and disinhibited behaviour. The second is that he finds it difficult to devise ways of occupying his time constructively. It was common ground that Mr. Cornes is not capable of undertaking gainful employment. A convenient summary of the consequences of the alteration in Mr. Cornes’s personality was set out at paragraph 15 of the Claimant’s Revised Schedule of  Loss and Damage:-
“The Claimant has suffered an alteration in his personality whose effects have been significantly more serious recently as a result of cessation of medication by Olanzapine at the end of 2006 (Dr. Sumners report 14.12.07 at p.5 and 26 and second Joint Memorandum of Professor Oddy and Dr. Parker on 12.1.08 at para. 3.0):
(a) He is aggressive and there are outbursts of temper with foul language and aggressive body language.
(b) He issues verbal threats which are specific and strong. He intimates an intention to exact revenge on the Defendant (though he does not know the Defendant’s identity or whereabouts). See letter 2.11.06 of Dr. El-Nimr referred to above;
(c) The Claimant intimates intentions of potential self-harm (see for example Prof. Oddy report of 16.11.06 para. 6.10 p.10, letter 11.9.07 of Dr. Yusuf within medical records and report of Cathy Johnson 21.1.08 para. 4.2) though he has taken no steps in that regard. The Claimant suffered depression particularly in early 2006 (local psychiatric care team involved) when his inability ever to return to the RAF sank in;
(d) He finds crowded places or those with much noise difficult, due to “cognitive overload”. Travel by public transport is a particular trigger of frustration and anger;
(e) He can be tactless and invasive of others’ space;
(f) During 2007 the Claimant began to manifest serious sexually inappropriate behaviour and language. He threatened with a knife a female support worker who declined his advances. This continues to such an extent that the experts are strongly of the view that the Claimant’s support workers will have to be male (Dr. Sumners report 14.12.07 at p.27 and second Joint Memorandum of Professor Oddy and Dr. Parker on 12.1.08 at para. 5.0). His female Case Managers rotate their supervision of him to avoid his forming a fixation;
(g) There is a risk of altercations with others arising from the Claimant’s personality change. He has made threats against his neighbours. He is abusive to shop workers and has been barred from shops and asked to leave a restaurant.
(h) The Claimant has shown a tendency to spend idle hours drinking alcohol to excessive levels. This increases his vulnerability. He recently had his wallet stolen from him when out drinking.
(i) There is a loss of self-motivation in that there is no initiation of fresh activity without prompting.
(j) Without the presence of a Support Worker or Case Manager the Claimant is socially isolated. Dr. Sumners concludes (ibid. p.28) that the Claimant will be “an isolated and lonely individual in the future”;
(k) The effects of the Claimant’s aggressive behaviour are ruining his relationships with his family. A holiday with his mother at his sister’s family’s home in Canada in August 2007 was beset by problems arising from his aggression and use of inappropriate language. When he returns to Canada he will have to stay elsewhere. He is no longer welcome at his Uncle and Aunt’s home near his own after an incident in August 2007 when he was verbally and physically aggressive because he did not like his cousin’s baby’s crying.
(l) The Claimant spends impulsively and irrationally.”
21.	In essence the summary of Mr. Cornes’s condition set out in that passage was not in dispute, although there was some difference of emphasis in relation to the actual manifestation of violence by Mr. Cornes. On behalf of Mr. Southwood Mr. Featherby contended that the evidence showed that, while he was inclined to threaten violence, with the possible exception of the occasion when he brandished a knife at a female support worker to whom he had become attracted, but who rejected his advances, there was no real evidence of him offering violence to anyone since leaving residential care. I think that that is probably right. The other objection to the accuracy of the summary which I have quoted which Mr. Featherby took was to challenge the suggestion that Mr. Cornes had been barred from shops. It seemed that, at least according to Mr. Cornes, he had been banned from a particular shop after he propositioned an assistant in that shop. Other than that it did not appear that he had been banned from any premises. According to Mr. Cornes, he had banned himself from his local public house following him making an approach to a barmaid.
22.	Dr. David Sumners was instructed as a single joint expert in neuro-psychiatry in this action. He prepared a lengthy and thorough report dated 14 December 2007. The “Summary and Conclusions” section of his report included:-
“… Whilst on Olanzapine there was sporadic aggressive behaviour but no significant sexual disinhibition. Following the cessation of the Olanzapine there was probably an increase in the aggressive behaviour but a marked increase in his sexual disinhibition. It is perhaps unfortunate that the Olanzapine was stopped at all by the local service who were assessing him for the first time. Mr. Cornes reports that he feels better off the Olanzapine and I have no doubt that because he now feels less sedated this is subjectively the case. Unfortunately he is adamant that he will not go back on Olanzapine or any other antipsychotic so the only alternative strategy is to increase the mood stabiliser. Time will tell whether this is going to be successful. The other important issue to be considered is of course whether he will continue to comply with the mood stabiliser although at present I see no indication that he will not.
My own examination showed him to be incongruous in his mood (or affect), disinhibited in his comments and mildly over-familiar. There was however no fundamental alteration of mood such as hypomania. As described above the sexual comments were only in evidence with the female support worker and so I am not surprised that he did not make such comments to me. None the less his attitude to them when I asked him about it indicated that he did not really see that there was any problem. He felt the same way about the aggression. This reflects back to Professor Oddy’s concerns expressed several years ago that there is a lack of insight into the nature of his condition. It is my impression that his insight has improved with the passage of time but none the less he does not perceive the effect he has on others. This is also likely to be related to frontal lobe damage because those parts of the brain are also responsible for perception of the emotions of others and our effect upon them.
With regard to the future it is my opinion that Mr. Cornes’s condition should now be regarded as essentially static. It is encouraging that he values his sessions with the psychologist and the use of what I believe to be cognitive techniques by her will probably help him to improve his behavioural difficulties to an extent. I would hope that when taken together with the appropriate use of medication i.e. an increased dose of a mood stabiliser or reintroduction of an antipsychotic, if he agrees to it, or both, then his overall level of antisocial behaviour will decrease to an extent. This will of course have huge implications for his continuing interaction with the community and the ability of his carers to manage him. In my opinion he will probably be able to continue to reside in the community subject to having adequate support. Naturally it is also my opinion that his support workers should be male. It is not at all difficult to see how a relatively young man like Mr. Cornes must get frustrated and wish to have relationships with females. If he is in close contact with female support workers he is bound to develop feelings for them. Unfortunately due to his personality problems and lack of inhibition he tries to form relationships inappropriately, for example with his support workers. It is doubtful in my opinion whether he would be able to form relationships in a social context given his overall behaviour. I suspect therefore that he will be an isolated and lonely individual in the future.”
23.	The purposes of providing a support worker for Mr. Cornes, it was common ground, were to put in place a structure and routine which would enable him to function reasonably satisfactorily, that is to say, keeping under control his tendencies to manifest anti-social and disinhibiting behaviour, and to use his time in useful ways which he would find satisfying. The differences between Miss Johnson and Mrs. Conradie in relation to the number of hours per week for which support should be provided and what contingencies, if any, should be made, were a reflection of their differing assessments of what was needed to produce the common goal. There was also, perhaps, a difference in emphasis between Miss Johnson and Mrs. Conradie concerning allowing Mr. Cornes free time when he was not under supervision from a support worker. It appeared from the evidence which they gave during the trial that each had been given a different view by Mr. Cornes of his own wishes. Miss Johnson understood from him that he would welcome more support than he had been having. Mrs. Conradie, on the other hand, was told that he dislikes people being around him when he wants to be doing something on his own. Both Miss Johnson and Mrs. Conradie agreed that Mr. Cornes is intolerant of individuals and easily becomes fed up with the same people if they are always around him.
Past support
24.	Although Mr. Cornes has had the benefit of support workers since about the summer of 2005, only for a very limited period of about two months did he have the level of support which Miss Johnson envisages as being necessary in the period from now until the end of 2009. That was from about October 2005 when Mr. Cornes was living with his mother in Newcastle-under-Lyme. The support in question was provided by Mr. Cornes’s former brother-in-law, Mr. Gareth Henshaw. As I understand it, Mr. Henshaw remains essentially Mr. Cornes’s only friend. Mr. Cornes’s view of the 40 hours of support each week which Mr. Henshaw provided he shared both with Mrs. Conradie, and with Mrs. Helen Ainsworth, his case manager.
25.	In her report dated December 2006 at section 11 Mrs. Conradie noted:-
“In October 2005, Mr. Cornes moved from the Voyage Unit to live with his mother in Newcastle-under-Lyme; his ex-brother-in-law Gareth was initially employed as a support worker for up to 40 hours per week, but Mr. Cornes found this exhausting and intrusive and this was later reduced at his request to 20 hours a week.”
	Earlier in that report, at section 2, Mrs. Conradie had recorded Mr. Cornes’s view more graphically:-
“Whilst living with his mother, his ex brother-in-law, Gareth Henshaw, was employed as his enabler for 40 hours a week; Mr. Cornes stated that the level of input “drove me nuts” and was later reduced to 20 hours.”
26.	In a report dated 30 September 2007 Mrs. Ainsworth wrote, at  paragraph 1.11:-
“Mr. Cornes received commercially funded support for 40 hours per week when he first relocated to Newcastle-under-Lyme. He reported that he found this to be intrusive and it was reduced. Without this level of support he became lonely, increased his alcohol intake, got into risky situations, made impulsive purchases and formed an undesirable relationship with a pregnant woman. Mr. Cornes requested assistance to deal with this matter when she began ‘stalking’ him and he informed me at that time that she also had an acquired brain injury.”
27.	Over the last year the average number of hours of support which have been provided to Mr. Cornes have been:-
Month						Average weekly hours
		February 2007							24.25
		March 2007							24.5
		April 2007								17.9
		May 2007								8.3
		June 2007								7.64
		July 2007								6.4
		August 2007							24.56
		September 2007							25.02
		October 2007							26.42
		November 2007							15.96
		December 2007							26.59
		January 2008							24.56
28.	One of those who provided support to Mr. Cornes during this period was Mr. Paul Chriscolli, a former police officer. At that time Mr. Cornes’s case manager was Sinead Fallon and he had a support worker at weekends called Nigel Clarke. At section 10 of her report dated November 2007 Mrs. Conradie recorded what Mr. Cornes had said to Sinead Fallon about his dealings with Mr. Chriscolli:-
“During a phone conversation with Ms Fallon on 7.11.07, she stated that ex-policeman Paul Chriscolli had been appointed and was due to start the following week. 8 hours per day of support worker input was considered to be putting too much strain on Mr. Cornes (he had stated that he liked spending time alone, had found the level of input “oppressive” and “I got along better with him when I was not spending so much time with him”) and therefore Mr. Chriscolli was due to work for 6 hours on 4 days per week. Nigel was to continue to work a total of 8 hours each weekend (although he had indicated that he may be moving in January 2008).”
29.	In total Mr. Cornes had had eight support workers over the period since he had moved into his own home.
30.	It was common ground that the reasons for the amount of support being as it had been in the year February 2007 to January 2008 were not related to the availability of funds. It appeared to be related to the availability of appropriate support workers.
31.	While there was some evidence of an increase in the involvement of Mr. Cornes’s case manager in the period May to July 2007, it was during this period that the problems experienced by Mr. Cornes as a result of the withdrawal of Olanzapine were at their most acute. That is material because in the view of Miss Johnson it is the risk of an event of that nature in the future which justifies the inclusion of her second contingency. In her oral evidence she described the sort of matters for which the contingency was intended to provide as “life events” or “the bumps and scrapes of day to day life”. There had been, on the evidence, other such events in Mr. Cornes’s life since the accident which had brought about a crisis. One was when he was discharged from the Royal Air Force. Another concerned his relationship with a lady called Celia, the one described by Mrs. Ainsworth as the person with whom Mr. Cornes formed an undesirable relationship. However, there was no real evidence of the actual provision of additional support at the times of these events.
Holidays
32.	The only evidence which was put before me in relation to Mr. Cornes’s past holidays or future holiday plans concerned the trips which he had made with his mother to see his sister in Canada. It seems that Mr. Cornes had visited Canada on a number of occasions before his accident and that he liked going there. He had visited his sister in Canada since his accident, but, as I have already recorded, the effect of the last visit was that he was no longer welcome to stay with his sister. Nonetheless, it seemed that it was likely that he would make future trips to Canada, probably in the company of his mother for at least the next few years.
33.	There was no real evidence about the length of the trips to Canada in the past or those intended for the future. There was some suggestion that Mr. Cornes had expressed an interest in visiting Italy, but no steps seem to have been taken to carry into effect any such visit.
34.	Mrs. Conradie told me in cross-examination that if one needed to take a support worker on a holiday with a client it was possible to negotiate a lump sum rate for the holiday. However, there was no evidence of what that rate might be or on what basis it might be agreed. I imagine that, if a lump sum rate for a holiday was agreed, it would include appropriate allowances in respect of travel, accommodation and meals.
35.	In his closing submissions Mr. Pittaway accepted that it could not be right to suppose, as Miss Johnson had, that if two support workers went on holiday with Mr. Cornes for two weeks, each support worker would be paid for each and every hour of the holiday. He was disposed to agree that one should proceed on the basis that each of the two support workers would only be paid for the hours actually spent on duty.
36.	Mr. Featherby, in his written closing submissions, adopted this position in relation to the issue of holidays and the possible sickness of Mr. Cornes:-
“4(g) … The fair and reasonable approach would be to award damages for the basic regime for 48 w.p.a. [weeks per annum] and then to allow, say, another four weeks for sickness and/or holiday cover. For those four weeks the cover could be doubled [to 52 hours per week until the end of 2009, and thereafter to 36 hours per week].
…
6(a)(ii) … The basic regime should run for 48 w.p.a.; supplemented by double that provision for the remaining 4 w.p.a. (though this is not a concession that if the Court finds that more than Mrs. Conradie’s basic regime is justified, that ought to be doubled for contingencies and holidays).”
Agency or directly employed support workers
37.	The difference between Miss Johnson and Mrs. Conradie in relation to whether it should be assumed for the purposes of assessing damages that support workers for Mr. Cornes would be provided through an agency or be directly employed had cost consequences – it was cheaper to employ support workers directly – but was more related to the difference between them as to what would be best for Mr. Cornes. Mrs. Conradie considered that a major benefit of direct employment would be continuity in the provision of support. Miss Johnson, to the contrary, considered that what Mr. Cornes really needed was a combination of continuity and difference, that is to say, a regime in which a team of people – she suggested three – provided support on a rotational basis. The particular reason for that was to avoid Mr. Cornes seeing the same face the whole time and becoming intolerant of it.
38.	It was in fact the case that, save during the period when Mr. Henshaw had been Mr. Cornes’s support worker, support workers had been engaged through an agency.
Conclusions in relation to hours, contingencies and manner of employing support workers
39.	I was impressed by both Miss Johnson and Mrs. Conradie. I am quite satisfied that each was doing her best to assist the Court on the difficult issues which remain to be decided in this case. 
40.	That said, it seemed to me that Miss Johnson, in relation to the question of the hours of support needed, was looking to a counsel of perfection, that is to say, a regime which would eliminate any possibility of lack of necessary future support, however likely or unlikely it was that such support would prove to be necessary or beneficial. Both Miss Johnson and Mrs. Conradie emphasised the need for the regime to be put in place for Mr. Cornes to be flexible. Neither suggested that the same number of hours of support should be provided on each day, regardless of what activities Mr. Cornes was undertaking. Miss Johnson, with her 40 hours per week until the end of 2009, was focusing on a degree of support which had, in her view, the best chance of producing a regime which, at the end of the period, had the highest prospect of continuing satisfactorily with a lower degree of support into the next period. What, she told me, justified the degree of support to the end of 2009 for which she contended was Mr. Cornes’s anti-social behaviour. However, she accepted that the evidence of Dr. Sumners was that Mr. Cornes’s condition is now static.
41.	I have come to the conclusion that Miss Johnson in her assessments substantially over-provided what is necessary for Mr. Cornes and what, in my judgment, he is likely in fact to receive, in terms of support. In this context it is particularly important, as it seems to me, to have regard to Mr. Cornes’s reaction when he did have 40 hours of support each week. At the same time, it seemed to me that the provision for which Mrs. Conradie contended was on the parsimonious side, possibly influenced by the level of support which Mr. Cornes in fact received over the last year. In her cross-examination Mrs. Conradie explained to me that she was envisaging support workers providing assistance on five days per week, although in the second joint statement, from which I have quoted, she agreed that support was necessary on six days per week. Moreover, she accepted in the second joint statement that that level of support was needed “in order to establish a routine of structure”, so implicitly she recognised that there was no such routine currently in place. In fact, of course, her allowance of 26 hours per week for support to the end of 2009, and 18 hours per week thereafter, also implicitly proceeded on the basis that there was no routine in place. Doing the best I can, I find that the allowance to be made for normal (that is to say, not holiday or sickness) weeks in the period up to the end of 2009 is 33 hours.
42.	I am not persuaded that it is necessary or appropriate to move from a provision of 33 hours per normal week up to the end of 2009 to the level of 18 hours per week via an intermediate stage. The whole purpose of an increased level of provision at the start is to establish a routine which, once established, should continue relatively smoothly. Once the routine is established essentially what will be happening is monitoring. Thus I find that the appropriate number of hours of support in a normal week after the end of 2009 is 18.
43.	In the light of the unsatisfactory state of the evidence in relation to holidays, and the facts that there was no evidence that Mr. Cornes had been ill and had received or required additional support as a result, in my judgment the appropriate means of addressing the issue of provision for holidays and sickness is that suggested by Mr. Featherby in his written closing submissions. I therefore find that the number of normal weeks to be included in the evaluation of the future cost of care is 48, with 4 weeks at an enhanced rate in respect of holidays and the risk of sickness. Whilst recognising that, in the light of my finding as to the number of hours to be allowed for normal weeks up to the end of 2009, Mr. Featherby did not concede that such was the proper enhancement of the number of hours to be allowed for holiday and sickness weeks, I find that for such weeks, up to the end of 2009 the number of hours to be allowed should be 66 per week, and 36 hours per week thereafter.
44.	I am wholly unsatisfied that it is appropriate to make any allowance whatever in respect of Miss Johnson’s second contingency. Given Mr. Cornes’s static condition, there is no particular reason to suppose that a crisis will occur which will benefit from increased support, and certainly no reason to suppose that such will occur each year and necessitate 4 weeks of provision of support of 80 hours per week for weekdays, 32 hours per week for weekends, and 7 days sleep-in cover per week. I think that Miss Johnson herself recognised that that was a generous and speculative provision, for in the second joint statement she envisaged that this allowance should “accrue yearly if not used”. I am not concerned to speculate about a contingency which may or may not be required. My task is to assess what Mr. Cornes reasonably needs and to what expense he is likely to be put in meeting that need. 
45.	I am, however, satisfied that it is appropriate to meet the need of Mr. Cornes for support workers by obtaining such staff from appropriate agencies. I accept the desirability of Mr. Cornes having a team of support workers which can provide consistency, but at the same time minimise the risk of Mr. Cornes becoming disenchanted with a particular support worker because he sees him so often and spends so much time with him. I am not satisfied that the needs of Mr. Cornes could readily be met in any event by directly employed support workers. While Mrs. Conradie envisaged that fathers looking after their children might be prepared to take on support work part-time, or that postmen, after completing the day’s work for Royal Mail, might be interested in such work, she did not seem to have undertaken any research to demonstrate that this method of proceeding was possible in Newcastle-under-Lyme. Moreover, she appeared not to have taken account of the fact that non-working fathers would probably only be available during school hours, and not during school holidays, whilst postmen would presumably have to perform the tasks of their respective employments by Royal Mail at least during the earlier part of the working day. Any employment of persons from either of these groups would inevitably limit support to Mr. Cornes in terms of the hours which could be made available for support and the times of day at which support could be provided.
Conclusions as to support workers’ expenses
46.	The allowance appropriate to be made in respect of the expenses of support workers in engaging in activities with Mr. Cornes is, in my judgment, essentially a function of the amount of the support to be provided, although logically there is no direct link. There was no investigation at trial of the reasons for the differences between Miss Johnson and Mrs. Conradie in the sums which each had included in her assessment. Doing the best I can, I find that the allowance for support workers’ expenses until the end of 2009 should be £30 per week, and the allowance thereafter £22.50 per week.
47.	There was really no evidence as to the terms upon which the expenses of support workers accompanying Mr. Cornes on holiday would be covered. As I have remarked, if a lump sum rate were agreed, I imagine that the rate would include the expenses. If a lump sum were not agreed, then the cost would depend upon the location of the holiday, the length of the holiday, the quality of the accommodation and the local cost of food. No evidence of travel costs to any destination, the costs of accommodation in any particular place, or the local cost of food anywhere was put before me. If Mr. Cornes wished to pursue this element of claim, it was, in my judgment, for him to lead appropriate evidence on the basis of which I could reach an informed conclusion. With, essentially, no evidence I am just being invited to guess. Consequently I find that the claim for the costs of support workers accompanying Mr. Cornes on holiday fails for want of proof.
Conclusion as to multiplier
48.	The remaining issue for determination at this stage is whether the agreed multiplier of 24.67 should be reduced as Mr. Featherby contended. I reject his submission on this point. I am satisfied that the answer to it put forward by Mr. Pittaway disposes of the issue.
The way forward
49.	It was agreed at the conclusion of the trial that Counsel would be able to undertake appropriate calculations in the light of the findings which I have made on the issues before me. I therefore leave it to them to do so.
50.	Unless agreement is reached between the parties in relation to the question of whether there should be an order for periodical payments, this action will need to be restored for a hearing on that issue.