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Cite as: [2018] EWHC 2060 (QB)

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Neutral Citation Number: [2018] EWHC 2060 (QB)

Case No: HQ16P03718

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION


Royal Courts of Justice

Strand, London, WC2A 2LL


Date: 6/07/2018

 

Before:


THE HONOURABLE MRS JUSTICE LAMBERT DBE

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Between:

 

 

CHARLOTTE SWIFT

Claimant

 

- and -

 

 

MALCOLM CARPENTER

Defendant

 

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Mr James Arney (instructed by Leigh Day) for the Claimant

Mr William Audland QC (instructed by Weightmans) for the Defendant


Hearing dates: 25, 26, 27, 30 April 2018 and 1, 2, 3, 9 May 2018

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Judgment Approved

 

 

.............................

 

MRS JUSTICE LAMBERT

 

 


Mrs Justice Lambert:


1.                  The Claimant was born on 25th September 1974 and is now aged 43.  In October 2013 she suffered serious lower limb injuries in a road traffic accident on the M5 motorway when travelling as a front seat passenger.  The driver of the vehicle was the Defendant, Malcolm Carpenter.  At the time of the accident he was the Claimant’s partner; they have since married. Liability in respect of the accident has been admitted and this action for personal injury and consequential financial losses therefore came before me on the issue of quantum only. 

2.                  Mr James Arney appeared on behalf of the Claimant and Mr William Audland QC on behalf of the Defendant. 

The Claimant’s Injuries, Condition and Prognosis

3.                  The Claimant suffered crushing injuries to both feet and lower legs.  On the left side, an open fracture and crush injury compromised the blood supply to the ankle and foot.  The limb could not be salvaged and the Claimant underwent a left sided trans-tibial (below knee) amputation in early November 2013.  The right foot was also badly crushed causing a dislocation of the great toe and a number of fracture dislocations of the bones in the midfoot.  These injuries were treated by the insertion of a metal plate in the midfoot and by fixation of the broken toes with wires and screws.  She suffered a fractured sternum and a relatively minor closed head injury, neither of which have caused any significant ongoing functional disability.  The Claimant was in hospital in Birmingham for a month and then transferred to Charing Cross Hospital in London where the amputation stump was revised and shortened due to poor healing of the wound.  She was eventually discharged home on 18th December 2013.

4.                  The Claimant remained under the care of the out-patient clinical teams at Charing Cross Hospital during 2014.  In many respects her rehabilitation was, relatively speaking, uneventful.  She suffered from some stump oozing and irritation but this appears to have quickly resolved.  She was fitted with a lower limb prosthesis in early January 2014 and discharged by the physiotherapy team on 19th February 2014 when it was noted that she had taken to walking with the prosthesis well and was able to walk unaided, including on public transport.  The team expressed the hope that the Claimant’s progress should continue to normal, or near normal, walking over greater distances and with more confidence. In November 2014, Dr Shipway, the rehabilitation consultant noted that she was “doing extremely well” from her left amputation and that she was keen to increase her physical activity, such as walking and rambling, and even playing tennis.  He noted that she was keen to receive a limb with an articulated ankle for this purpose, a request which he considered to be entirely reasonable.

5.                  However, during the same period, the clinical notes also record the development of two serious complications: phantom limb pain originating from the missing left foot and pain and stiffness, particularly in the midfoot, on the right side.  In January 2014, the Claimant was seen by a Consultant in Pain Medicine in connection with her neuropathic phantom limb pain.  At that stage the pain was responding well to medication.  The good response did not continue.  The Claimant was prescribed a different drug regime, with little effect, and in 2015 she underwent radiofrequency ablation of the nerve to alleviate the pain and subcutaneous injections of sodium salicylate.  Neither treatment, as I set out below, was curative.  Likewise, her problems with pain and stiffness of the right ankle and foot emerged in 2014 and consideration was given to removing the metal plate.  In November 2014 it was recorded that her main symptoms related to the right foot which was painful.  Although the pain has, to a large extent, resolved the Claimant continues to suffer from stiffness of the right ankle and stiffness of the midfoot.    

Phantom Pain

6.                  In her witness statement of May 2017 the Claimant provided a graphic description of the neuropathic pain originating from the missing left foot.  The pain was, she said, the most consuming feature of her condition; like a “cutting pain in my non-existent foot underneath the toes, like someone is digging something sharp like fingernails into the skin under my toes and scraping it across the width of my foot.  Sometimes it’s a squashing or crushing feeling, as if the toes are being squeezed in a vice.  It is also painful underneath the ball of the foot and into the ankle”.  She said that on a scale of 1 to 10, 10 being the worst possible pain imaginable, the pain usually scored around 6 to 8, although it could be as great as 10.  She said that the pain was present all the time and that, although her medication regime would usually keep the pain within manageable levels, she would feel the effect of the medication wearing off.  She had random good and bad days and described being trapped in a cycle of pain, which made her tired, with the tiredness then making the pain worse.  Exercise would sometimes be helpful; removing the prosthesis and rubbing the stump would also sometimes help, but this required privacy.  She said she tried to distract herself from the pain as much as possible.

7.                  The Claimant has undergone a large number of different techniques for pain relief; some highly intrusive and intrinsically painful (e.g. the radiofrequency ablation), other more conservative strategies (e.g. mindfulness; mirror therapy) and many on the spectrum between (e.g neuromodulation, acupuncture).  She is waiting to enlist on a pain management plan.  It was not disputed at trial however that there is no cure for the condition and no treatment which guarantees relief.  Ongoing pain, tiredness and, what Mr Arney described as resulting “finite reserves”, were features of her condition which, he asserted, permeated all aspects of her life including her ability to care for her child, to work and her leisure activities.  She told me that her pain made her all the more determined to lead an active sporting life for distraction and relief.

The Right Foot

8.                  The Claimant’s right foot, although salvaged, was nonetheless badly damaged.  A recent attempt to remove the metal work has been unsuccessful and, although a further removal attempt may be made, the Claimant currently has a “dorsal hump”: a slightly prominent and tender area on the top of the foot over the plate which limits the range of footwear which she can wear comfortably.  Of more functional significance is the stiffness in the ankle and midfoot and the reduced range of upward and downward movement of the ankle joint and the midfoot which limits her power to “push off” from the ground and prevents normal heel to toe “roll over” during walking.  Whereas a normal right ankle and foot would have served to compensate for the asymmetrical gait caused by the prosthesis, the absence of normal joint mobility and strength on the right side just compounds the problem.  Again, these residual problems affecting the right foot are likely to continue.

The Expert Evidence on Prognosis

9.                  The Claimant was assessed for the purposes of the litigation by two medical experts. For the Claimant, by Professor Michael Saleh, an orthopaedic surgeon specialising in trauma and limb reconstruction and, for the Defendant, by Professor Rajiv Hanspal, a physician specialising in rehabilitation medicine formerly based at the Prosthetic Rehabilitation Unit at Stanmore.  Both gave evidence at trial although, in fact, it did not seem to me that there was any real difference between their respective opinions concerning the Claimant’s prognosis.  They made the following points relevant to the quantification of the claim:

i)                   as with any amputee, the Claimant will be prone to back pain in the future due to the altered mechanics of gait;

ii)                 she is at higher risk of degenerative changes in the major lower limb joints which will need to be managed by physiotherapy and by anti-inflammatory medication;

iii)               she will continue to be fit for sedentary work until normal retirement age;

iv)               her physical activity level will reduce in later life (as with many able-bodied people);

v) style='font:7.0pt "Times New Roman"'>                 either in her mid to late 60s or early 70s, the Claimant will probably  need to use a wheelchair: initially this will be for longer distances outdoors but gradually she will need to use a wheelchair more, including indoors;

vi) style='font:7.0pt "Times New Roman"'>               she will remain self-caring until her late 70s and early 80s when she will start to need more help;

vii) style='font:7.0pt "Times New Roman"'>             during the last two years of her life she will need assistance with transfers and help from a single carer: Professor Saleh gave evidence that during these last two years she will need help to get out of a low chair, help with toileting, bathing and with her bed-time routine; 

viii) style='font:7.0pt "Times New Roman"'>           both experts agreed that she was currently compromised in terms of performing heavier aspects of housework, lifting, carrying, and working at ground level (e.g cleaning a floor) but as to the level of assistance required they deferred to the care experts.

10.              The experts also commented upon the risks associated with the Claimant undertaking high impact sports, such as running.  In their joint report they had agreed that the Claimant would find high impact sport difficult and neither recommended such activity.  In his evidence to me, Professor Saleh clarified that the risk was not to the stump, as a running blade would act as a shock absorber; the risk was to the right foot which did not have an effective shock absorber given the bony damage to the midfoot.  He said that it would be logical to suppose that, given the midfoot damage, the right knee and ankle might be at risk of earlier degenerative changes if the Claimant were to pursue high impact sports.  He would therefore advise against high impact sports although he said that he recognised there were significant cardiovascular and muscular benefits.  Professor Hanspal gave evidence in very much a similar vein.  He said that running was “relatively contra-indicated” because of the possibility of earlier degenerative changes.  He recognised the psychological benefits of sport but recommended other forms of sport, such as swimming.  I pick up this point later when I consider the claim for a sports activity prosthesis.

11.              Finally, and on a positive note, the Clamant did not suffer either enduring or particularly severe psychological sequelae.  Reports from two psychiatrists were available to me, from Dr Baggaley for the Claimant and from Dr Mallett for the Defendant.  Neither gave evidence at trial as there was no point of difference between them.  They reported that, at its highest, the Claimant experienced a range of symptoms typical of an adjustment disorder.  Dr Baggaley’s opinion was that the condition had largely remitted by the summer of 2014 and that her residual symptoms (travel anxiety and some problems with self-image) did not constitute a recognisable psychiatric disorder.  Dr Mallett considered that the Claimant had suffered some depressive symptoms for the first year.  Both experts commented upon the Claimant’s robust personality.  They considered that her residual symptoms would respond well to a course of therapy.

The Issues

12.              There are a number of preliminary points to make.

13.              First, there is no issue concerning the form of the award.  Both parties have invited me to consider the reasonable valuation on the basis of a capitalised “lump sum” and, having considered the appropriate form of the award, I find no good reason to interfere with this approach.  There is no dispute over the Claimant’s life expectation which has been considered by appropriate experts for each side and agreed to be normal.  The claim for care and case management (typically the element awarded in the form of a Periodical Payments Order), although substantial, is not the most significant element of the claim in money terms.  A lump sum will also give the Claimant a degree of flexibility in her choice of allocation of damages in the future.  The life multiplier for future loss has been agreed to be 55.02 (using the current -0.75% discount rate). 

14.              Following the evidence, I gave the parties time to discuss the claims further and directed they set out in an agreed document a list of the issues which remained for my determination.  At the outset of the trial, both parties had been standing behind the approaches taken in the Schedule and Counter Schedule.  Those documents demonstrated a large difference between the parties across the whole swathe of claims, the Schedule generating a figure of just over £7 million and the Counter Schedule a figure just under £2 million.  The trial was hard fought by both sides.  By the time of closing submissions however, and following the further discussion, some significant narrowing of the chasm between the parties had been achieved.  However there remained a large number of points still in dispute.  Save for noting that general damages and past losses including interest were agreed between the parties at £290,000, this judgment does not otherwise set out the agreed losses but deals only with the points remaining in issue.  I deal with those points as issues of principle with the parties to then undertake the mathematical exercise of quantification. 

15.              The issues that need to be dealt with in this judgment fall under the following headings:

i)                   Prosthetics

ii)                 Care and case management

iii)               Aids and equipment

iv)               Holidays

v) style='font:7.0pt "Times New Roman"'>                 Transport costs

vi) style='font:7.0pt "Times New Roman"'>               Loss of earnings

vii) style='font:7.0pt "Times New Roman"'>             Accommodation.

16.              Under some of those heads of loss, elements of agreement had been reached by the point of closing submissions, but each include some residual dispute.  As to the general legal principles which I should apply when considering the heads of loss, there was no difference between the parties.  It was common ground that the overall aim of compensatory damages in tort is to place the Claimant, so far as money can do so, in the same position as she would have been in if she had not suffered the wrong for which she was liable to be compensated, the object being “full compensation” for both financial and non-financial losses (see Wells v Wells [1999] AC 345 at 382).  The Claimant is entitled to damages sufficient to meet her reasonable needs arising from her injuries and, in deciding whether a head of loss is recoverable in the amount claimed or at all, the Court should assess the reasonableness of the head of loss and its amount (Sowdon v Lodge [2004] EWCA Civ 1370).  The parties also accepted that proportionality was relevant, in the sense that the Court should have regard to the extent to which, in respect of any claim, the same or substantially the same result could be achieved by other less expensive means (Whiten v St George’s Healthcare Trust [2011] EWHC 2066 and A v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 266).

The Claimant

17.              There were only two factual witnesses, the Claimant and a work colleague, Ms Karen Huxley.  I set out below some aspects of the Claimant’s evidence and my impression of her generally to the extent relevant to my approach and findings across the individual heads of loss in dispute.

18.              The Defendant submits that I should treat the Claimant’s evidence with caution and that, in a number of key respects, her evidence was unreliable and demonstrated a tendency towards trimming.  I pick up below some specific points made by Mr Audland where relevant to particular heads of loss in question.  However, I pause to note at this stage that I do not accept his submission that, in any respect, the Claimant’s evidence was expedient and tailored to maximise her claim.  The Claimant appeared to me to give her evidence in a straightforward and matter-of-fact way.  I formed the impression that both in her witness statement and in her oral evidence she was honest and doing her best to answer, inevitably very difficult, questions concerning the course her life would have taken but for the accident and how her life, post-trial, may yet unfold.   Although there were inconsistencies between matters recorded in her witness statement and her oral evidence, none of those differences have led me to the conclusion that her evidence was contrived.  The Claimant explained the differences by saying that she had had the best part of a year to think about things more closely and review aspects of her earlier account in the light of the further experience.  I find her explanation to be credible and I accept it. 

19.              The Claimant gave evidence that, before her accident, she had enjoyed a full and active life.  Work, sport and travel were all equally important to her.  The Claimant’s CV (supplied to her current employer in 2010 when she applied for her job) documented that she had worked, virtually continuously, since leaving Newcastle University.  Her love of travel had led her to find her niche in the field of travel journalism and marketing and at the time of her accident in 2013 she had been working for Cedar Communications, a content marketing agency, based in Central London for three years.  The company holds accounts for a number of travel and hospitality organisations, the Claimant working principally on the British Airways account editing the various magazines for in house and customer consumption.  The Claimant was fit and very active.  She enjoyed sport: tennis, water skiing, cross-country skiing and snow-boarding.  She would pursue some form of exercise on most days: either swimming or cycling or going to the gym.  Travel was an important part of her life, both for work and for pleasure.  When she was single she had enjoyed travelling alone or with friends to remote, far flung, destinations; having met the Defendant she had travelled with him to Europe and long-haul destinations.  The lifestyle which she depicted, both in her witness statement and in her oral evidence, was of an energetic woman who had been living her life to the full.

20.              At the time of the accident, the Claimant was in a relationship with the Defendant, they had not yet married but were committed to each other and living together.  The Defendant is older than the Claimant (by 16 years).  He retired early from his job in IT in his mid-fifties.  Although he had already had a family (a grown-up daughter, Autumn) and had undergone a vasectomy, there was an understanding between the Claimant and Defendant that their marriage would include children.  The couple married in 2015 and Ossian, their son, was born in 2016 by IVF following egg donation. Equally, it was understood between the couple that, although the marriage would include children, the Defendant would be permitted to maintain something of the life which he had intended for himself in his retirement; this included travelling to Europe mid-week (to take advantage of cheaper travel costs), staying in touch with friends and enjoying sport.  The Claimant had, at the time of the accident, recently bought a home in Brackenbury Village, a leafy and attractive part of West London. The house was, and remains, in her sole name, although the Defendant contributes 50% of the mortgage.  It was bought as a “project” requiring extensive renovation and remodelling which was already underway at the time of the accident.   

21.              The Claimant told me that it is her intention to re-claim as much of her busy work and sporting pre-accident lifestyle as may now be possible and pursue as many of her pre-accident ambitions as are now realistic given her functional disability.  I have no reason to doubt her intention to do so.  She has had a baby; already enrolled in an entry level triathlon for para-athletes during the summer of 2018 which involves swimming for 100 metres, a 1 kilometre run and a 3 kilometre bike ride; she has returned to work (working four days per week, one day from home) which involves travel into Central London and to Heathrow (BA headquarters). 

22.              The Claimant’s description of her life both before and after the accident demonstrates resolve and determination.  I agree with the psychiatrists’ view of her as someone with a robust personality.  Mr Arney referred to her as stoical; he cautioned me against minimising the impact of her injuries on her because of her calm and practical response.  This is a valid point which I bear in mind.   The Claimant also struck me as organised and capable.  She has demonstrated considerable independence of mind.  Notwithstanding advice (which she accepted she had received) as to the risks associated with high-impact sport, including running, she was determined to pursue those activities, her rationale being that the experts had painted “a pretty bleak” picture of her long-term future in any event and so she intended to make the most of her capacity for physical activity now. 

The Experts

23.              I heard evidence from four pairs of experts:

i)                   Professor Saleh and Professor Hanspal (see above)

ii)                 Mr Nieveen and Mr Sullivan (prosthetics)

iii)               Dr Catherine Willson and Ms Barbara Scandrett (care)

iv)               Mr Tom Wethers and Mr Paul Vipond (accommodation)

The experts were skilfully cross examined by Mr Arney and Mr Audland. Both, at various times, however sought to exploit inconsistencies and perceived exaggerations or under-valuations by the experts to demonstrate the inherent unreliability of the witnesses’ opinions generally.  I did not find the approach to be helpful and at times it seemed to be little more than point scoring.  None of the experts’ views were so extreme or so out of kilter with the underlying material that I would be prepared to disregard their evidence as a whole.  My view is that all of the experts were doing their best to help the Court and in reaching my conclusions below I have taken their evidence into account. 

Prosthetics

24.              Given its direct bearing upon the Claimant’s independence, the logical starting point is the dispute concerning the prosthetics.  I heard evidence on the topic from the Claimant, Professor Saleh, Professor Hanspal and from the prosthetists, Mr Nieveen and Mr Sullivan.

i)The daily activity limb or “everyday” limb

The Claimant’s Case

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

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

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

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

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

The Defendant’s Case

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

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

i)                   I should award the costs of the Elation prosthesis only to the Claimant’s age 78.58 (therefore over a period of 35 years) on the basis that cosmesis and the wish to wear higher heels will reduce in later years, particularly given the prognosis for the right foot and the possibility of accelerated degeneration in the event of the Claimant undertaking high impact sport. 

ii)                 He maintains his primary case that I should allow the costs of the Echelon prosthesis (in addition to the Elation) but that in the alternative I should make an adjustment to the capitalised cost of the Meridium over the course of the Claimant’s life to reflect the possibility that there is a real prospect that the Claimant may in later life adopt the Echelon. He proposes a deduction of 10% to reflect this chance.

Meridium v Echelon: Discussion

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

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

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

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

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

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

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

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

ii) Water Activity Limb  

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

iii) Sports Activity Limb

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

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

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

Aids and Equipment

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

i)                   Raised garden beds: the Defendant admits the claim as a “one off”, single, purchase and disputes the need to rebuild the raised garden beds every 10 years.  I accept the Defendant’s point.  I see no reason why the raised beds will need to be rebuilt every ten years.  I note that no explanation is advanced by Dr Willson in this regard.  Therefore I allow the claim as a single purchase.

ii)                 Computer chair: this item is denied on the basis that the Claimant would have purchased a special chair for computer use in any event.  Alternatively, it is contended by the Defendant that a suitable chair can be provided at a fraction of the cost claimed (£850).  I accept that the Claimant’s disabilities make provision of a computer chair a reasonable need and that she would probably not have bought a chair specifically for that purpose, but for her injuries.  Taking into account that Dr Willson accepted that there exists a range of suitable chairs I allow the sum of £400 (with a replacement cycle of 5 years) for the purchase of a computer chair.

iii)               Shower seat: the claim is admitted in principle but the cost is disputed.  Apparently the Claimant has purchased a shower seat at a capital cost of £870.  I accept that the cost of this item is unreasonably high.  Accepting that there exists a range of such items from the basic to the luxury, I allow £450 for this item with a replacement cycle of 10 years.

iv)               Riser/Recliner chair:  again the item is accepted to be reasonably needed from the Claimant’s age 70 years but the cost is stated to be excessive.  I accept again that there exists a range of such items but allow a mid-point figure between Ms Scandrett’s figure of £950 and Dr Willson’s figure of £1,500, £1,225.  I accept Ms. Scandrett’s evidence that the maintenance contract is included in the price and make no separate allowance for that element.

v) style='font:7.0pt "Times New Roman"'>                 Profiling Bed from the age of 70 years:  the need for a profiling bed is admitted by the Defendant, but the cost claimed to be excessive.  The competing figures for the bed and mattress are £4,545 and £3,300.  Again, Dr Willson accepts that there is a range of beds and prices vary.  I therefore allow the sum of £4,000 for the bed with replacement every 15 years and maintenance and servicing as costed by Dr Willson at £120 per annum.  I agree with Mr Audland that the claim for repeat purchases of the mattress should not be allowed given the absence of any tissue viability issues and that a mattress would have had to have been purchased in any event.

vi) style='font:7.0pt "Times New Roman"'>               Hoist and Maintenance: there are differences between the parties as to the age at which the Claimant will need a hoist and the type of hoist needed.  Guided by the evidence of Professor Saleh and Professor Hanspal, I find that the hoist will only be needed during the last two years of life.  I also note that Professor Saleh stated that the Claimant would need “assistance” with transfers.  This is not a case in which the Claimant will be unable to weight bear.  On this basis I allow the claim for the Stand Aid (with costings advanced by Ms Scandrett).

vii) style='font:7.0pt "Times New Roman"'>             E-motion wheels: these are fitted to a manual wheelchair to provide power assistance.  They are claimed by Dr Willson from the Claimant’s age 70 on the basis that it will be essential to protect the Claimant’s upper body.  The Defendant disputes the item and allows instead the cost of a scooter (which is also claimed by Dr Willson).  I accept that the choice is between the E-motion wheels, or the scooter, but not both.  This approach would be consistent with the approach taken by Professor Saleh who recommends either a powered wheelchair or E-motion wheels or a scooter, but not all three.  I find that it is more likely that the Claimant will use a scooter for longer distances, rather than a wheelchair with power assistance.  However, contrary to Mr Audland’s submissions I allow the cost of the “all-terrain” scooter rather than the basic/lightweight model which he allows.  A more robust scooter will enable the Claimant to take trips into the countryside, an activity which she enjoys.  I therefore allow the capital costs of a scooter (at £2,000), from age 75 years and associated costs of maintenance and insurance.

viii) style='font:7.0pt "Times New Roman"'>           Electric Bike: I do not allow this claim.  The Claimant has recently enrolled in a triathlon which involves a 3km cycle ride.  She intends to continue running for as long as she can and thereafter pursue lighter sports for which appropriate prostheses have been allowed.  For these reasons, I do not find that she is likely to use an electric bike, nor that its purchase would be reasonable.       

Care and Case Management

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

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

i)                   Mr Audland has impressed upon me the need to take into account that, but for the accident, the Claimant would have returned to work for five days per week; that her work would have involved a commute into Central London and to Heathrow and would have involved a significant amount of travel including travel away from home every couple of months for two or three nights and frequent overnight stays whilst visiting other UK offices.  Her work would, on occasion, involve her in evening receptions or occasional late nights in the office.  I accept Mr Audland’s point that any uninjured child care costs, whether commercial or gratuitous, must be reflected in the award which I make.  The point is however of limited significance.  As I set out below, the real difference between Dr Willson and Ms Scandrett is not so much the number of hours of additional care now required by the Claimant but how that care is to be delivered.  I also bear in mind that Mr Arney, in his closing submissions, concedes additional “uninjured” nursery costs (for two days per week) and an annual sum of £1,000 for “uninjured” childminding costs until secondary school age.

ii)                 I heard evidence from Dr Catherine Willson and Ms Barbara Scandrett on the topics of care and case management.  Unfortunately, in her pre-trial reports, when addressing both past and future care needs, Ms Scandrett had, through no fault of hers, not taken into account the gratuitous care provided by the Defendant on the assumption that such care was not recoverable.  As a matter of principle, she was correct.  It is well established that a tortfeasor cannot benefit from his own breach.  However, Ms Scandrett had not been informed by those instructing her that an agreement had been reached between the parties that the usual principle would be displaced on the understanding that the Claimant would not replace gratuitous with commercial care.  The effect of her approach was that she had not brought into account any care which she considered would be provided by the Defendant. Ms Scandrett was only instructed to provide a report to make good the deficiency just before trial.  Owing to her other commitments this further report was served hopelessly late (only on the evening before she was due to give evidence).  Although I was asked to rule on the Defendant’s application for permission to rely on the report, before I had had a chance to hear full submissions, Mr Arney proposed that the issue be “parked” as any delay threatened to de-rail the, already tight, trial timetable.  On this basis I received the late Scandrett report into evidence on the understanding that I would include my ruling in my judgment. 

iii)               This is that ruling.  I can deal with the issue in short terms.  The report was served, as I have said, very late and for no good reason.  As Mr Arney pointed out to me the mistake should have been identified by the Defendant’s legal team in the autumn of last year at the latest.  Since then, the Defendant has had many opportunities to rectify the mistake but delayed until the last moment to do so.  All that Mr Audland was able to do was apologise to the Court.  However, given the importance of the subject matter of the report and the value of the claim, I am not and would not have been (had I heard full submissions) prepared to refuse permission on lateness only.  I was concerned to know whether Mr Arney would be able to deal with the points raised in the report during the currency of the trial timetable or whether he would need to re-call expert witnesses.  Had I heard full argument and had Mr Arney been able to persuade me that he was not able to deal with the points or that expert witnesses would have had to have been recalled, then I would not have granted permission.  However, Mr Arney informed me that he would be able to deal with the report in full without recalling expert witnesses, and this proved to be the case.  I therefore give permission to the Defendant to rely on the report of Ms Scandrett of 1st May 2018.  Any costs consequences are to be dealt with later.   

iv)               One final matter arises in connection with Ms Scandrett’s late report.  She stated in that report that the Claimant had told her, during the course of her assessment interview, that she did not wish or intend to have commercial staff in the home and that the couple intended to care for Ossian themselves.  Disclosure was given of Ms Scandrett’s handwritten notes of the interview which painted a rather different picture.  There were a number of references to the family guarding its privacy and to the wish to keep intrusion to a minimum.  In respect of caring for Ossian, Ms Scandrett noted down “The couple know how they want to live their life.  They are private and do not wish interference.  They like to make decisions and will instigate options.  They have specific ideas about bringing up children…..  they have a good friend set and have used advice etc.. don’t trust nannies generally would want personal introduction.  She believes that she will know if she needs help.  Likes to make own decisions”.  Ms Scandrett appears therefore to have misinterpreted what she was told by the Claimant.  The Claimant, although acknowledging that she was a private person, of firm views who would make her own decisions, was not stating that she would not engage commercial childcare; only that she would be cautious in her selection of the carer.  I bear this in mind when considering the various elements of the claim.

Number of Children

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

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

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

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

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

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

Period One:  from trial to the birth of the Claimant’s second child. 

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

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

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

Period Two: Maternity Leave 

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

57.              I make the following observations:

i)                   I accept that it is reasonable to differentiate the Claimant’s reasonable additional care needs during her maternity leave from those following her return to work.  She will have particular difficulties carrying a new baby safely and there will be a large number of baby-related additional domestic chores which her pain levels and associated fatigue will make it difficult for her to perform.  However, I also bear in mind that Ossian will be in nursery for a substantial part of the day and that some of the Claimant’s functional limitations will be alleviated by the fact that, by that time, she is likely to be living in her new home with a lift and she will have the benefit of a Meridium prosthetic (conferring a more stable gait and alleviating to an extent her fatigue) and various other items of equipment. 

ii)                 There is also force in Mr Audland’s submission that, during the course of her maternity leave with Ossian, she did not engage a nanny.  I recognise that there is a considerable difference in caring for a single baby as opposed to a baby and a young child, however for much of the time during the day when the notional nanny is engaged, Ossian will not be in the house.    Likewise, there is force in Ms Scandrett’s opinion that the presence of a full-time nanny/housekeeper in the home during weekdays would be intrusive for both the Claimant and the Defendant and would run counter to the Claimant’s wish to maintain a degree of family privacy.    

iii)               For the reasons set out in (ii) above, I do not find that it is reasonable for a full-time nanny/housekeeper to be engaged, or that it is likely as a fact that the Claimant will choose to engage such a person to help her.  That said, I find that there will be a reasonable need for some considerable commercial input to assist the Claimant in domestic and childcare tasks which the Claimant is either unable to do safely by reason of her physical disability or is too tired to do.  I find that a reasonable assessment of this need is by the provision of 25 hours per week of a “mother’s help” at £16.50 per hour.  Over the course of the year of maternity leave, this generates a final figure of £21,450.

iv)               I also agree with the Claimant’s formulation of gratuitous care over the course of the year.  Given her disability, it is reasonable for the Defendant to pick up the slack (to use the Claimant’s words) which he would not otherwise have done and I accept that a large part of the overnight duties and weekend duties will inevitably fall on the Defendant’s shoulders due to the Claimant’s disability.  I therefore allow the claim for gratuitous care as formulated by the Claimant.     

Period Three: Childcare to the Youngest Reaching Secondary School Age

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

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

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

Period Four: to the Claimant’s age 80 years.

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

62.              I make the following observations:

i)                   Care during this period must be purchased care given Mr Carpenter’s age.  It is too speculative to suggest that he will be able to provide the Claimant with reliable care of the sort contemplated by the experts (shopping, fetching and carrying heavier objects) when he himself may be in his late 70s or early 80s.  

ii)                 Given that during the latter part of this period, on the evidence of Professor Saleh and Professor Hanspal the Claimant will need to use a wheelchair at times for outdoor mobility, I allow the claim as pleaded at 7 hours per week.  The multiplicand during this period is therefore £3,778.32. 

Period Five: from age 80 years until the last two years of life:

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

Period Six: last two years of life

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

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

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

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

Case Management 

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

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

i)                   The commercial care costings above are based on agency rates, rather than the lower rates associated with a direct contract between the Claimant and carer.  Assuming that an agency is used, then the agency will provide cover in the event that a carer is ill or on holiday and take care of payroll and other ancillary elements of the care regime.

ii)                 I have already expressed my own view of the Claimant’s character.  She is a person of independent mind who makes her own decisions.  I doubt that she will rely upon, or wish to rely upon another person (other than Mr Carpenter) for the purpose of interviewing and recruiting a person to assist her in the home or to care for her children.  Nor will she need assistance in recruiting therapists or selecting equipment.  She is more than capable of doing so herself (she tracked down Mr Haidar herself via Heather McCartney) and will doubtless do so in the future.

iii)               Equally, I recognise that particularly in later years, when Mr Carpenter may not be on hand, or able to support her, there may be a need for some professional input to deal with agencies, therapists and in relation to equipment. 

iv)               I therefore allow only “contingency” case management provision of 50 hours at £160 per hour producing a total figure of £8,000.

Sports Massage

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

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

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

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

Holidays

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

Extra Leg Room?

i)                   The first question which I am asked to determine is whether there is a reasonable need for the Claimant, when travelling by plane, to have extra leg room and if so whether the additional cost of the upgrade should be limited to long haul flights or include shorter journeys.  The Claimant told me that she finds it uncomfortable to wear her prosthesis for longer flights and that she therefore likes to take the prosthesis off and balance her leg stump on the prosthesis.  She is unable to remove the prosthesis easily and discreetly in the usual cramped conditions of economy class.   Professor Saleh and Professor Hanspal accepted that due to the relatively stiff right ankle and limited active flexion of the prosthetic foot, the Claimant would likely find it awkward and uncomfortable sitting in the limited space available in economy class with the prosthesis on. 

ii)                 The Defendant submits that there is no reasonable need for extra leg room: even in economy she could discreetly remove the prosthesis under cover of the airline blanket. Alternatively, with the provision of the Meridium (with its flexible ankle) she would be reasonably comfortable keeping the prosthesis on. 

iii)               The Claimant’s evidence is compelling.  I accept that sitting for a long time with the prosthesis on is uncomfortable.  She gave evidence to me that, at the end of the day, one of the first things that she does is remove the prosthesis and massage the stump.  It is not reasonable to expect her to struggle to remove the prosthesis under the airline blanket.  Even if she could do so, the cramped conditions in economy class would make balancing the stump on the prosthesis precarious, embarrassing and difficult.  I therefore find that for all long-haul flights the costings should be on the basis of premium economy or equivalent. 

iv)               As for shorter flights, Professor Saleh said that it would be reasonable for the Claimant to sit for a period of up to two hours with the limb on.  Dr Willson observed that this period should factor in time spent on the runway waiting for take-off and waiting to disembark.  I accept this evidence although bear in mind that such timings must always be approximations.  I therefore find that it is reasonable to award the additional costs of flight upgrades for all flights, save for UK flights and those to more proximate European destinations, including flights for skiing and to Oslo (where the Claimant has family).

Number of Flights per Year?

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

Children and Family with Her?

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

With a Nanny?

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

Additional Flight Costs

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

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

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

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

Additional Accommodation

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

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

Other Increased Holiday Costs

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

Transport and Travel Costs

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

Increased Vehicle Costs

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

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

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

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

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

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

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

Rate of Vehicle Replacement

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

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

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

i)                   Automatic transmission at £1,000 per annum.

ii)                 Hand Controls: these are admitted in principle by the Defendant, but only as a contingency.  I find it is reasonable to allow for these, as set out in the Schedule.

iii)               Stowage and hoist systems: I allow both of these items.  The costings for the boot hoist are set out in the Schedule and those for the stowage systems in the Scandrett report (including removal and refit).

iv)               Increased roadside rescue costs at £37 per year.

v) style='font:7.0pt "Times New Roman"'>                 Additional mileage:  this is claimed at £580 per annum on the basis that from age 75 the Claimant is likely to use her car more, given that she will be increasingly reliant upon a wheelchair by that age.  This is a reasonable claim in principle, although I allow only £510 pa on the basis of the additional running costs associated with a lower cost vehicle.   

vi) style='font:7.0pt "Times New Roman"'>               Taxis: I accept that the Claimant will be more reliant on taxis than she otherwise would have done, for work and leisure purposes.  There is no evidence that the Claimant will need to use a wheelchair accessible taxi in later years. I allow the claim at £1,560 per annum throughout life.

Loss of Earnings:

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

i)                   The claim assumes uninjured net annual earnings of £57,076, calculated on the basis of the Claimant working 5 days per week averaged over the course of a working life to age 67 years.  This annual figure is higher than the Claimant’s pre-accident net annual earnings of £41,712.  Mr Arney submits that the Claimant is ambitious and would have moved from job to job seeking promotion as and when opportunities to improve her remuneration package presented.  Mr Arney submitted that the appropriate bracket for annual average gross earnings over the course of the Claimant’s life was between £70,000 and £100,000, a range which reflected the salary associated with such jobs as Editor in Chief, Editorial Director, Creative Director and/or Content Marketing Lead positions.  He has then adopted a mid-point in that range, of £85,000, which he has then netted down to £57,076.  Mr Arney assumes an uninjured retirement age of 67.  He applies the Ogden Table C reduction factor for an employed, able-bodied woman educated to degree level of 0.89 to produce an uninjured working life multiplier of 22.15.  This produces an uninjured net earnings figure over life of £1,264,000.

ii)                 From this figure, Mr Arney then subtracts the Claimant’s injured net earnings over life.  Based on her current four-day week, that figure is £33,360 pa.  He applies a multiplier of 14.93 derived from the arithmetical multiplier subject to a reduction factor of 0.6 (Table D of Ogden 7). 

iii)               In respect of both reduction factors applied, Mr Arney submitted that there would be reasonable grounds for adjustment: upwards in respect of Table C and downwards for Table D.  In particular he submits that the Table D reduction factor could lawfully go down much further as, as an amputee, the Claimant is more than averagely disabled and more disabled than the population sample on which the Table D reduction factor is based.

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

i)                   As to the Claimant’s uninjured retirement age, the Defendant contends that it is more realistic to adopt a multiplier based on a retirement age of 65, by which time the Defendant would be 81 years old, rather than 67.  Save for this point, he accepts the Claimant’s approach to the uninjured multiplier based on a discount factor of 0.89.

ii)                 In respect of the multiplicand for uninjured net average earnings, Mr Audland rejects the submission that the Claimant would have been promoted.  He argues that there is no reliable evidence upon which I could reach such a conclusion.  Typically, he submits, there should be some supporting evidence either from an employment expert or from the Claimant’s employer or a senior colleague and that, in the absence of some such evidence, the proposal that the Claimant would have been promoted and would have earned a net annual salary of over £57,000 is nothing more than speculation. 

iii)               As to the Claimant’s residual earnings multiplicand, Mr Audland submits that there is no good reason to suppose that the Claimant will never return to a five-day working week.  Mr Audland has drawn my attention to the comment which the Claimant made to one of the experts that she was contemplating a return to a five-day week and to the joint view of Professor Saleh and Professor Hanspal that she was physically capable of working a five day week.  Mr Audland submits that I should reflect the Claimant’s possible return to a five-day working week by quantifying the chance of this happening.

iv)               Mr Audland also challenges the application of a reduction factor to the multiplier for residual earnings.  He argues that this amounts to double recovery for the Claimant in that the impact of her disability is already reflected in the difference between the uninjured and injured multiplicands.  Alternatively, he submits that I should adjust the reduction factor in Table D upwards.  This would be a legitimate and lawful approach and the course adopted by the judge in Connor v Bradman [2007] EWHC 2789

v) style='font:7.0pt "Times New Roman"'>                 Alternatively, he submits that if I were to conclude that the Claimant was more likely than otherwise to lose her job, or remain unemployed for longer by reason of her disability, then this should be reflected in a modest lump sum award of £40,000 to reflect her handicap on the labour market.

vi) style='font:7.0pt "Times New Roman"'>               He also submits that I should deduct a further sum of £26,247 representing the saving in travel costs which is associated with the Claimant having a Freedom Pass due to her disability.

Uninjured Retirement Age?

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

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

Uninjured Net Earnings?

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

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

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

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

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

Injured Earnings.

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

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

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

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

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

i)                   Although the Claimant is properly to be characterised as “disabled”, there are several ways in which the Ogden 7 approach contemplates that a disability or health problem may affect day to day activities.  None of the listed ways truly captures the Claimant’s disability.  Although mobility is listed as a relevant feature, it is described by the example “unable to travel short journeys as a passenger, unable to walk other than at a slow pace or with jerky movements”; ability to lift or carry or move everyday objects is also listed, but the Claimant does not come within the specifics illustrated there either.  Given that disability in this context embraces such a wide range of ways in which a person’s employment may be threatened none of which, on their face, reflect the Claimant’s disability, I might be inclined to accept Mr Audland’s submission that on this basis alone, the reduction factor should be significantly uplifted.

ii)                 However, even though not captured by the listed examples in the text to Ogden 7, there is no doubt that the Claimant is disabled in a way which may threaten her employment status.  Her job crucially depends upon her ability to travel to visit and review hotels and resorts.  Her work involves evening receptions and regular late-night working.  In both of these domains her ability to function is affected by her pain which is unpredictable, intrusive and tiring.  It is also, albeit to a lesser extent with the provision of a range of prosthetics, limited by the amputation itself.

iii)               I also however take into account my impression of the Claimant as a person who is capable and committed.  The evidence given by Ms Huxley was impressive.  She told me that the Claimant is functioning to a high standard, including staying late on occasions.   There has been no drop off in her work, although she observed her to be more tired and a little less self-assured.  

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

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

Accommodation

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

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

Current value of Cardross Street?

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

Would the Claimant have moved anyway?

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

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

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

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

Value of “Special Accommodation”?

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

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

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

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

i)                   Mr Wethers located one only property within a suitable radius of Cardross Street which afforded sufficient accommodation.  This was an eight bedroomed property on the Goldhawk Road with a cellar and scope to convert the loft.  The property is around 285 square metres in size and was, at the time, on the market at £2.5 million.  His assessment of the sum needed to purchase a suitable property in November 2017 when he provided his substantive report was based on this property.  Although in his supplemental report he referred to having considered 13 properties which the “Agent” considered possible (and which averaged at around £2.237 million), Mr Audland fairly makes the point in his closing submissions that Mr Wethers was unable to say with any confidence which property particulars he was there referring to.  Likewise, in his supplemental report, he referred back to the “range” of costings given in his main report: in fact he had not provided a range but given the single figure of £2.5 million.

ii)                 Mr Vipond appears to have undertaken a more exhaustive search.  Within a half mile radius of the Cardross Street, he identified 10 potentially suitable houses with an average price of £1,824,990.  However, he accepted that a number of the smaller, and less expensive properties, were not suitable following their inspection by Ms Fox, the property finder engaged by the Claimant.  In the light of this further information he revised his reasonable price range from £1.8 million to £2 million.   He also considered the various properties which had been identified by Ms Fox as potential contenders.  Ms Fox had, on the instruction of the Claimant, cast her net rather wider than Hammersmith and included a review of houses in Barnes, Chiswick and Putney.  Her second report appeared to Mr Vipond to identify a number of houses of sufficient size and with the potential to install a lift in the region of £2 million.  Her third report focussed on Putney and 6 houses were identified with a floor space of between 269 square metres and 330 square metres.  The price range was £2.5 to £2.7 million.  He considered those houses to be overprovision.  Mr Vipond also undertook a review of the houses in the wider catchment area which turned up 12 potentially suitable houses with an asking price in the range of £1.6 million to £2.2 million.  In summary therefore Mr Vipond’s review, including his assessment of the findings of Ms Fox, confirmed to him that the Claimant would be able to purchase a suitable property for a sum no more than £2 million.       

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

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

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

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

Relocation Costs

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

Recovery of Additional Capital Costs of Accommodation

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

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

i)                   the cost of an interest-only mortgage to bridge the difference between the value of the property to be sold and the purchase price of the special accommodation.  Mr Arney acknowledges that he has not adduced expert evidence from either an Independent Financial Advisor or mortgage broker setting out current and projected mortgage interest rates.  He argues that no expert evidence is needed; a basic internet search reveals that the current annual interest rate on an interest only mortgage is 3.8%.  This percentage should be applied to the sum of £900,000 and multiplied by the full-life multiplier produced by the application of the current negative discount rate of -0.75%.  This would produce a final figure in the order £1.89 million, more than double the sum which the notional mortgage is intended to fund.

ii)                 In the alternative, Mr Arney proposes that the annual costs of an interest only mortgage should be paid by the Defendant in the form a Periodical Payment Order.  This has the advantage of limiting the annual costs to the Claimant’s life span.  If she fulfils her predicted life expectation however the total damages paid over the course of the Claimant’s life will, again, well exceed the difference in capital cost between the Claimant’s injured and uninjured accommodation needs.

iii)               The third alternative (and the course which Mr Arney favours and invites me to follow) is to adopt the Roberts v Johnstone approach but substitute a different rate of return for the purpose of calculating the multiplicand.  The Schedule “suggests the appropriate rate would be 2% in line with the interest award on general damages”.  No explanation is advanced in the Schedule or in submissions for using 2% as the notional rate of return.  The total damages to be paid if this formula were to be adopted would again be in excess of the difference in value between the capital cost of the uninjured and special accommodation, but only marginally so.

iv)               The fourth alternative which Mr Arney proposes is to award damages reflecting the cost of renting special accommodation. I need say no more about this option.  Even Mr Arney accepts that this is not a serious contender. Setting aside that the Claimant does not wish to live in rented accommodation, the annual sum would be in the order of £48,000 pa producing a total sum well over the value of the property.

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

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

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

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

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

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

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

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

Adaptations

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

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

i)                   the cost of a carport (£8,084) which is not reasonably needed in the immediate or medium term;

ii)                 the cost of a raised patio (£6,656) which is not explained or justified;

iii)               raised flower beds (£3,540) which have already been costed elsewhere;

iv)               more significant internal structural alterations and consequential redecoration which I accept are likely to be needed in order to create sufficient space for the lift installation.

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

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

Additional Running/Furnishing Costs

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summary

 

 

 

General Damages and Past Loss

290,000

 

 

Future Loss

 

1. Aids and Equipment

913,299

2. Care and Case Management

668,342

3. Future Home Maintenance

90,000

4. Loss of Earnings

481,573

5. Loss of Future Pension Contribution

50,422

6. Accommodation

968,732

7. Travel and Transport

233,180

8. Medical and Therapies

132,626

9. Additional Holiday Costs

254,877

10. Miscellaneous Expenses

15,000

Future Loss Total

3,808,051

 

 

Total

4,098,051

 

 

 


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