B e f o r e :
THE HONOURABLE MR JUSTICE FORBES
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Between:
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FIONA JANETTE CANNON
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Claimant
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- and -
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CHARLES MICHAELCANNON
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Defendant
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Julian Waters and Laura Johnson (instructed by Thring Townsend) for the Claimant
William Featherby (instructed by Guys Solicitors) for the Defendant
Hearing dates: 25th, 26th, 27th, 28th and 29th April 2005
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice Forbes:
- Introduction. This claim arises out of a road traffic accident that occurred at about 8 am on 7th July 1997. The Claimant was 18 years old at the time. She was the front seat passenger in an Isuzu Trooper car (index number K3l6 UJO) being driven along the eastbound carriageway of the M4 motorway by her brother, the Defendant. They were returning from a party. Unfortunately, the Defendant fell asleep at the wheel and lost control of the car, which then collided with the central reservation and rolled over several times, before coming to rest on its roof.
- As a result of the accident the Claimant sustained severe orthopaedic and head injuries and was taken by helicopter from the scene of the accident to Frenchay Hospital Bristol, where she was placed on a life support machine. Her condition was critical and initially she was not expected to survive. In the event, she made a remarkable recovery during the two months that she remained in hospital before being discharged into the ongoing care of her parents.
- Liability has never been in issue. In paragraphs 2 and 3 of his Defence, the Defendant admits that the accident was caused by his negligence and that the Claimant has suffered pain, injury, loss and damage as a result. On 19th January 2001, District Judge Thomas ordered that judgment be entered in the Claimant's favour with damages to be assessed. The proceedings before me were therefore concerned only with an assessment of the damages to which the Claimant is entitled.
- The Facts and the Heads of Damage. I now turn to give a more detailed account of the injuries, treatment, resulting disabilities and damage suffered by the Claimant as I find them to be on the evidence that I have heard and read and in the light of the detailed written and oral submissions by Mr Waters on behalf of the Claimant (to whom I shall hereafter refer by her first name) and Mr Featherby on behalf of the Defendant.
- Fiona has no recollection of the actual accident itself. As I have already indicated, she sustained multiple injuries (some very serious) the general nature of which can be summarised as follows: (i) multiple scalp lacerations and hair damage; (ii) a severe head injury, with a skull fracture, right frontal extradural haematoma and left temporal haemorrhagic contusion, for which she underwent three neurosurgical operations; (iii) a right 4th cranial nerve palsy, resulting in double vision, for which she subsequently underwent corrective surgery with only limited success; (iv) a stable fracture of the 7th cervical vertebra with associated further damage to her upper spine, treated by immobilisation in a cervical collar for six weeks; (v) an undisplaced open fracture of the right patella; (vi) an undisplaced fracture of the left forearm and left thumb; and (vii) a severe de-gloving crush injury to the right foot, with significant bone and soft tissue damage and skin loss, necessitating numerous surgical procedures, including the amputation of the fourth right toe and fusion of the first metatarsophalangeal joint.
- The severity of Fiona's injuries and the immediate treatment that she received are helpfully summarised in the following passage in the medical report prepared by Mr Ian Pople, the Consultant Neurosurgeon at Frenchay Hospital, dated 8t September 1997:
"On arrival at the Accident Department at Frenchay Hospital, Miss Cannon was hypo-volaemic due to the large amount of blood that she had lost from her multiple wounds. This was treated with a massive intravenous fluid load and blood transfusion. She was assessed and found to have a Glasgow Coma Score of 7-8. She was able to localise to painful stimuli, mutter incomprehensible sounds and did not open her eyes. After appropriate X-rays were taken she was intubated and transferred for a CT scan of her head. This first scan showed contusions in the left temporal region and also in the right hemisphere. Her extra cerebral blood clots developed over the ensuing few hours.
1. For her severe head injury Miss Cannon underwent three operations. The first was an emergency suturing of her scalp lacerations and insertion of an intra cranial pressure monitor through a burr hole. At operation it was noted that there was some extra- and sub-dural blood coming out of the burr hole. Her intra cranial pressure was ... very high ... at the end of the procedure, so she was taken back to the CT scanner. This second scan showed a large right frontal extra-dural haematoma and she was therefore taken straight back to the operating theatre, where a craniotomy was done to evacuate the blood clot and thereby reduce the pressure on the brain. At the time of this second operation a substantial amount of sub-dural blood clot was also found and removed. Both these operations took place on 7. 7. 97 (the day of the accident).
Her final operation was also a craniotomy, but this time it was on the left side in the temporal region and was done on 11.7.97 when her intra cranial pressure started to rise uncontrollably and the contusions in the left temporal lobe were more swollen. These contused (badly bruised) areas of the brain were gently removed in order to allow the remaining brain more space to lower the overall pressure and thereby maintain a good blood supply to the brain. At the same operation a catheter (external ventricular drain) was placed into her ventricle to drain off fluid as necessary in order to have more control over her intra cranial pressure. Following this final operation her condition stabilised and she gradually improved to the point where she was opening her eyes on 17.7.97.
A per-cutaneous tracheotomy ... under local anaesthetic and sedation was done on 24.7.97 and the external ventricular drainage tube was removed and swapped for a left-sided subcutaneous ventricular access device.
Her scalp lacerations healed, but left scars which have given rise to areas of baldness. These may require plastic surgery in the future. The tracheotomy tube was subsequently removed, leaving a scar which was also rather unsightly and may require revision surgery by the plastic surgeons.
2. Her neck fracture was treated with a cervical collar for six weeks.
3-6. For her leg and hand injuries Miss Cannon required initial emergency debridement and fasciotomies (operation to release tight compartments in the hand in order to keep the blood and nerve supply going to the fingers). She had her fractures immobilised and for her foot she underwent an adipofascial flap on 24.7.97. This was done by the plastic surgery team in order to establish soft tissue cover over the exposed fractured bones, that were at risk of becoming infected.
She was discharged from Frenchay Hospital on 2.9.97. By this time she had improved to the point where she was able to obey commands and was fully orientated in time and place. She was able to speak and did not appear to have any significant weakness in her arms of legs. She was unable to bear weight on her right leg due to the severe foot injury. She may require further reconstructive surgery on this severely damaged right foot. "
- Another useful summary of the extensive surgical and medical procedures that were carried out to in order to treat Fiona's injuries, together with a succinct account of her progress during the two months that she remained in hospital, is to be found in the report prepared in April 1998 by the plastic surgeon, Miss Lisa Sacks, as follows:
"Treatment & Operations:
Under general anaesthesia with joint neurological, orthopaedic and plastic surgical teams, neurosurgeons performed debridement and suture of degloved scalp injury and insertion of left parietal in tercranial pressure monitor.
The left hand Bennet's fracture was treated with two crossed K-wire fixations. An undisplaced fractured head of second metacarpal was treated conservatively. The hand was extremely tense, necessitating decompression of the median nerve and interosseus muscles, via a carpal tunnel incision and dorsal (back of the hand) incisions.
Plastic and orthopaedic surgeons worked jointly on the right foot to perform extensive debridement of devitalised tissue including amputation of the fourth non-viable toe. Multiple fractures of metatarsals on the foot were K-wired. The dorsum (top) of the foot had a large degloving injury with tissue loss and exposed bone (first metatarsal and interphalangeal joint). Lacerations to right knee, overlying the transverse non-displaced fracture of the patella were debrided ....
At the end of this procedure, the patient had a CT scan which demonstrated intercranial damage necessitating a second urgent visit to the operating room.
V Chronological Progression of Physical Symptoms:
A hard collar was applied for six weeks and the patient was cared for in the Intensive Care Unit. A tracheotomy was performed. Post-operative elevation of (right) foot and (left) hand was performed. Wounds were dressed to await neurological outcome before further surgery was planned .... On 15th July 1997 ... the patient was still too ill to undergo the prolonged surgery needed to cover the exposed bone in the (right) foot caused by the severe soft tissue damage ....
19.7.97 Fiona became more responsive to pain and started obeying commands. In view of her psychological improvement, plans were changed to preserve the foot but she was still not well enough to undergo a long operation (the right foot injury was so severe and the risk of bone infection was such that there had been consideration of a below-knee amputation or a fore-foot amputation).
On the 24.7.97 she was operated on. Wounds on the (right) foot consisted of exposed long extensor tendons and medial cuneiform and navicular bones and first metatarsal bone was exposed along its length up to the first metatarsal phalangeal joint .... All necrotic skin was debrided. A .. .fascio-cutaneous flap was raised to cover the degloved dorsum of the (right)foot .... The flap was left in situ as a biological dressing and by the time it was debrided, one week later, granulation tissue had developed over the bone, under the flap, allowing a skin graft to be applied.
On 11.8.97 skin was harvested from both buttocks and applied to the granulating wound on the dorsum of the right foot. There was good graft take when inspected one week later ....
15.8.98 Patient transferred to General Plastic Ward to commence intensive physiotherapy to right leg and foot, left arm and hand.
18.8.97 K-wires removed from the foot; cervical collar removed; tracheotomy tube removed.
2.9.97 The patient was discharged
1.10.97 Patient started walking, three and a half months after the accident. She had a full range of movement of left hand."
- Fiona was in a very critical condition when first admitted to hospital. She was placed on a life support machine and remained unconscious for nearly two weeks. By the 14th July Fiona's apparent condition had deteriorated to such an extent (largely as a result her severe head injury) that her parents were told that the outlook was bleak and that it was likely they would soon be advised that it would not be in anyone's interests to keep the life support machine going. In the event, very shortly afterwards, Fiona began to show the first signs of improvement that eventually led to her remarkable recovery .
- On her discharge from the hospital, Fiona went to live with her parents at the family home in Little Bedwyn, Wiltshire. During her initial period of recuperation, Fiona's mobility was very restricted and she required a high level of care and support from her family and friends, as described in her evidence and in the evidence of (in particular) her father, her tennis coach (Peter White) and a school friend, Frederique ("Freddie") Sumption, who came to live with and help look after Fiona for several weeks after her discharge from hospital. I am satisfied that her father's considerable support and encouragement continues to be a significant factor in Fiona's ability to cope with her disabilities. By December 1997, Fiona had recovered sufficiently to be able go on a three-week family holiday to Costa Rica, although this did involve considerable effort and determination on her part.
- Full details of the extensive treatment Fiona has undergone for her various injuries, following her discharge from hospital, are to be found in the many medical reports contained in the Court bundles and to which I refer, but do not propose to quote. The post-discharge treatment has included (inter alia) a number of sessions of plastic surgery to deal with Fiona's scars, hair damage and foot. However, at this stage it is also appropriate to mention two additional matters that are directly related to the injuries sustained by Fiona. In January 1999 she suffered a grand mal epileptic seizure as a result of which she now receives appropriate medication. The epileptic seizure resulted directly from and was a manifestation of the brain injury that had been sustained by Fiona as a result of her accident and she remains at some risk of further seizures in the future. On 31st December 2000 her poor balance resulting from her injuries caused Fiona to fall and fracture her elbow. The elbow fracture was sufficiently serious to require pinning and there is now some restriction in extension of the elbow. Of course, this particular injury was not directly caused by the accident itself, but is an example of the type of injury to which Fiona is now at risk as a result of a disability (i.e. poor balance) that was caused by the accident.
- The accident itself occurred shortly after Fiona had completed her A-level examinations at Marlborough College where she had been a pupil. In the event, Fiona's A-level results were published whilst she was still in hospital. She had obtained passes in Art (Grade A), Biology (Grade C) and Classical Civilisation (Grade D). Although it had been hoped that Fiona's grades would be somewhat higher, overall they were a fair reflection of her academic abilities (see paragraph 17 of the first witness statement of her Housemistress at the time, Mrs Patricia Harrison).
- Although Fiona was not particularly outstanding in her academic work (she was also mildly dyslexic), I accept her evidence that she intended to go to University (after having taken a "gap year", during which she intended to go travelling with friends). I am also satisfied that Fiona had the necessary ability to do reasonably well at University. It is also clear from all the evidence that she was an extremely capable and popular young lady with a very attractive personality and many admirable qualities in both character and demeanour: see, for example, the evidence of Mrs Harrison, in which she spoke very highly of Fiona's well rounded personality and many accomplishments. In short, Fiona had excellent inter-personal skills and was a very enthusiastic and accomplished sports woman. She was mature and responsible in thought and behaviour. She was very popular with both staff and fellow students and had many friends. She was a house prefect and (in her final year) Head of House. She was a member of the School hockey, lacrosse and tennis teams.
- Accordingly, I am satisfied from all the evidence that, had it not been for the accident, Fiona would have gone on to University in due course and would have obtained a decent degree (either an upper or lower second), following which she would have entered a suitable professional occupation. I therefore accept the following assessment by Ms Amanda Greenway, an Occupational Psychologist and the jointly instructed vocational expert witness, as accurate and reliable (see page 5 of Ms Greenway's report dated 19th April 2005):
"Given Fiona's background it is most likely that she would have pursued employment in a professional occupation. Her earnings would therefore have been expected to peak at age 40 in the region of £40,664 gross per annum, (assuming she took employment in London or the South East). "
- Although it was known that Fiona had suffered a serious head injury and that part of her left temporal lobe had been removed during the life-saving surgery that had been carried out at Frenchay Hospital, her subsequent recovery was so remarkable that it took some time for Fiona and her family to appreciate the full extent of the brain damage that she had suffered and her resulting disabilities. In fact, it was common ground that Fiona had suffered a very severe head injury, with significant resulting disabilities, as summarised in paragraphs 1 to 8 of the joint statement agreed on 21st December 2004 by Dr Trevor Powell ("Dr Powell") and Professor Graham Beaumont ("Professor Beaumont"), the Clinical Psychologists instructed by the parties, as follows:
"Agreement
1. Ms Cannon suffered a very severe head injury in the accident of 7/07/97.
2. She is a lady whose premorbid level of functioning could be estimated as being in the upper regions of the average and bright average range, who now has at least a mildly impaired IQ.
3. She suffers from fatigueability, which means that she has less stamina and tires more easily.
4. On psychometric testing she has a mild deficit in working memory, attention and concentration, mild to moderate impairment in short term memory, a mild deficit in speed of information processing, a moderate deficit in executive functioning, which includes the ability to multi task, efficiently plan and organise and mild word finding difficulties. These deficits are now likely to be permanent.
5. She suffers some of the subtle emotional and behavioural difficulties associated with head injury, which include; emotional liability, loss of confidence and moodiness. She is likely to be more vulnerable to low mood and psychiatric difficulties in the future.
6. She has benefited from rehabilitation and has made slow progress over the last few years.
7. Her cognitive deficits and fatigueability are likely to have an adverse (effect) on her employment prospects in the future and her ability to gain further academic qualifications. We feel that it is unlikely that she will be able to work at predicted premorbid levels and for example become a teacher and it is unlikely on the balance of probabilities that she will be able to work full time. Her optimal level might well be part time work in a supportive structured environment ....
8. She presented as a genuine person who did not appear to be exaggerating the extent of her symptoms.
9. She would benefit form the appointment of a Case Manager who would offer advice, occasional counselling and 24 hour telephone support. It is likely that this position would be permanent, although involvement would tail off over the years. She would also benefit from the continuation of neuropsychological psychotherapy and the appointment of a job coach, and again both posts would gradually reduce over the years, so that there is unlikely to be any need extending beyond the next five years. After five years a contingency fund for neuropsychological psychotherapy on a "when needed basis" would be appropriate.
10. We see no reason why Ms Cannon should not in due course attract a partner and sustain a close personal relationship, nor eventually have a family if this is her choice."
- I endorse the view expressed in paragraph 8 of the joint statement agreed by Dr Powell and Professor Beaumont, having seen and observed Fiona for myself when she gave evidence in these proceedings. I would only add that she impressed me as a very charming and attractive young lady who has shown and continues to show great courage and determination in her approach to life, notwithstanding the catastrophic effect that the accident has undoubtedly had upon her and her future prospects.
- In the course of his evidence, Dr Powell indicated that he wished to modify his agreement to paragraphs 5, 9 and 10 of the joint statement in the light of what he had recently learnt about Fiona's disabilities from his discussion with Fiona's psychologist, Dr Sherie Baehr ("Dr Baehr"), together with his consideration of Dr Baehr's clinical notes and Rehab UK's notes. Dr Powell told me that, as a result of this body of information, he had become more aware of the sort of difficulties that Fiona was currently experiencing and the nature and extent of her disabilities and that this had led him to modify his earlier views. As to paragraph 5 of the joint statement, Dr Powell said that he now would add that Fiona's anxiety was of a more obsessive character than he had originally appreciated and that obsessive anxiety is a feature of her behaviour. So far as concerns paragraph 9 of the joint statement, Dr Powell told me that he was now persuaded that Fiona would also benefit from a support worker to improve her quality of life. As to paragraph 10, Dr Powell said that his greater understanding of the nature of Fiona's anxiety had led him to conclude that she would struggle to maintain a relationship.
- I accept that Fiona's neurological deficits affect every area of her life. Her ability to plan, her organisational skills and her memory have all been adversely affected to a significant extent. Her difficulties have affected her socially, in that planning something as straightforward as a meal for friends takes an inordinate amount of time and a significant degree of help from others. She has also been affected in the workplace because she is unable to multitask efficiently, she needs to have regular rest breaks and can only cope in a relaxed and informal setting. As paragraph 7 of the agreed statement makes clear, Fiona is now only able to work part-time in a "supportive structured environment."
- Fiona's and her family's initial lack of awareness of the extent and nature of the brain damage that she had suffered meant that, in the period following her recovery, she sometimes engaged in activities that were inappropriate and/or beyond her capabilities because of her neurological disabilities. Thus (for example), in February 1998 she tried to live independently in London, but had to return to her parents' home after a month and a trip to the USA from May to June/July 1998 was a failure, as was her attempt to study for a degree at Newcastle University that she started in 1998 and gave up at the end of the first year.
- Despite these various setbacks, Fiona continued to persevere with her attempts to lead a normal and productive life and achieved some success as a result of her own determination and strength of character. A trip to Mexico with a friend in the summer of 2000 was a great success and, in September 2000, Fiona embarked on a cookery course at the Leith's School of Food and Wine. However, during the course, Fiona was puzzled by the difficulty she experienced in grasping what she was being told and shown. She worked hard and succeeded in completing the course, although her anxiety and feelings of panic made it impossible for her to take the final examinations.
- By 2001 it was apparent that Fiona's neurological problems were such that she would clearly benefit from a course in neuropsychological rehabilitation and arrangements were therefore made for her to attend the Oliver Zangwill Centre in Ely, Cambridgeshire. A two-week period of assessment in November 2001 was followed by a detailed report dated 3rd January 2002, prepared by Ms Fiona Kirker, an Individual Programme Co-ordinator at the Oliver Zangwill Centre, in which she accurately and helpfully summarised Fiona's ''persisting difficulties" as follows:
"Impairments
• Low mood and anxiety
• Difficulty with divided attention
• Reduced efficacy of planning and organisation
• Reduced encoding and immediate verbal memory skills
- Reduced ability to evaluate a task and apply sufficient attention to it to enable her to complete it correctly
• Reduced rapid co-ordinating oromotor (sic) movements
• Reduced inferential language processing skills
• Reduced verbal abstract reasoning ability
• Word finding difficulty
• Balance difficulty
Disabilities/Handicaps
• Self-critical, negative thinking
• Slurred speech and poor swallowing when tired
• Misinterpretation of non-literal language
• Topic drift in conversation
• Poor study skills
• Daily memory slips
• Reduced decision making
• Poor application of organisation and planning skills."
- Ms Kirker recommended an intensive 2-term, 20-week rehabilitation programme at the Oliver Zangwill Centre, which she summarised as follows:
"During the first 12 weeks, she would attend the intensive programme at the centre 4 days per week in order to develop greater awareness of her strengths and difficulties and learn ways of managing them more effectively. This would be followed by a period of community integration, when she would divide her time between the centre and the community, in order to help ensure effective generalisation of gains made whilst at the centre to community environments."
- Ms Kirker then went on to identify certain "goal areas" that would be included in Fiona's rehabilitation programme, as follows:
"The goal areas for her programme would include:
- Developing a greater understanding of her injury, her strengths and weaknesses and in particular the relationships between her areas of impairment and their functional consequences
- Effective management of her mood and anxiety related behaviours to reduce their impact on her functional activities
- Exploration of vocational options to enable her to engage in more sustained periods of work related activity
- Identification of compensatory strategies to enable her to manage her cognitive deficits more effectively
- Increasing her planning and organisational abilities in specified daily living tasks
- Demonstrating strategies to manage her speech and language skills in social and work."
- Fiona was keen to pursue the recommended rehabilitation programme at the Oliver Zangwill Centre. She duly embarked upon it in June 2002 and completed it in November 2002. In fact the programme lasted for 24 weeks and there is no doubt that Fiona has benefited greatly from it. The programme enabled her to understand and to confront her brain injury and the true nature and extent of the disabilities that she had suffered as a result. Fiona also was taught various helpful strategies and learned how to adopt them for dealing with her disabilities, such as how to cope with planning.
- Fiona's own continued determination and constructive personality is well illustrated by the fact that, between her assessment and the commencement of the rehabilitation programme at the Oliver Zangwill Centre, she successfully attended a language course in Spain for just over four months, commencing in January 2002.
- In December 2002, Fiona started seeing an Occupational Therapist, Shannon Ryan, who helped her with day to day matters such as organising her diary, setting goals and generally helping her to cope with everyday life.
- In June 2003, Fiona succeeded in finding a voluntary part-time job (one day a week) at the Inter-Cultural Youth Exchange ("ICYE"), the details of which Fiona had found on the Internet. ICYE is an organisation that looks after exchange students that have come to the UK and also organises placements in other countries for British students. However, despite the skills that she had learnt at the Oliver Zangwill Centre, Fiona found it very difficult to do whatever tasks she was given. She found it difficult to choose the appropriate strategy to adopt for any given situation.
- In September 2003 Fiona started going to Rehab UK, where she embarked on a vocational rehabilitation programme for several days each week, as well as continuing to work one day at ICYE and also going to see her psychologist, Dr Baehr, once a week (which she has found particularly helpful). As a result of this routine, Fiona often became so fatigued that she had to cancel her working day at ICYE. It was accepted that Dr Baehr's clinical notes accurately recorded the various problems and concerns that Fiona has expressed to her. I am satisfied that these notes do demonstrate that Fiona has been experiencing various difficulties with everyday life as a result of her disabilities since her return to live in London in September 2003.
- I also accept Fiona's evidence as to the sort of problems that she has experienced and continues to experience because of the neurological disabilities caused by her brain injury (e.g. anxiety, fatigue, feelings of panic, memory deficit, concentration deficit and inability to multi-task) and her continuing physical disabilities (in particular, problems with her right foot, pain in her buttocks, neck and back, difficulty in kneeling on right knee and double vision when tired): see, for example, paragraphs 91 to 135 of her third witness statement, dated 11th October 2004. In my view, she has shown much determination in overcoming these problems as well as she can. I also accept that Fiona has benefited greatly from the assistance of a support worker, Aniela Kornica, who was appointed in September 2004 and from a Case Manager, Rachel Garrett, who was appointed in December 2004, as described in paragraphs 10 to 39 of her fourth witness statement.
- At present Fiona attends the Headway Centre for one half day on Tuesdays and Rehab UK for one and a half days on Wednesdays and Thursdays. She has progressed to Module 3 of her rehabilitation programme in which she has a job coach instead of a tutor. She is looking for suitable part-time work, preferably with a Charity, where she is more likely to find employment that is within her capabilities and sympathetic to her needs. In my view this is a reasonable approach to her future employment prospects, having regard to her disabilities (see also paragraph 7 of the joint statement agreed by Dr Powell and Professor Beaumont, quoted in paragraph 14 above). Needless to say, her income from any such employment (if she is successful in obtaining it) is likely to be very low.
- All in all, I accept the following overview of Fiona's case, as set out in Mr Waters' written closing submissions, as a fair and accurate summation of her injuries, her pain and suffering and her continuing neurological and physical disabilities:
"As an overview (Fiona) has suffered a very serious injury at a young age with catastrophic consequences to her bright future. Socially, intellectually and physically her life has been irrevocably damaged. She has experienced extensive and painful operations and will continue with further plastic surgery. Her prospects of settling down to a married life have been substantially reduced. Her ambition to enjoy fulfilling and successful career has been dashed. Her natural desire to stand on her own two feet, though not diminished, will never be fulfilled. Notwithstanding the devastating injuries and sequelae (Fiona) has made extraordinary efforts to rebuild her life and has made a remarkable recovery, largely through her determination and force of personality. Although she strives to maintain a bright and congenial outward appearance, it is apparent from her evidence and the medical notes that when she is alone the realisation of the full consequences of her condition affects her grievously."
- Having stated my principal findings of fact with regard to the general circumstances of this case, I now turn to consider the various heads of damage and the amount of damages to which Fiona is entitled under each such head of damage.
- General Damages for Pain, Injury and Loss of Amenity. It was common ground
that the correct approach to the quantification of general damages in a multiple injury case such as the present is that indicated in the decision of the Court of Appeal in Brown ~v~ Woodall (1995) PIQR Q36. In his judgment in that case Sir John May held that where there were a number of separate injuries all adding up to one composite effect upon a claimant, the judge should stand back and look at the global figure reached and ask if it is reasonable compensation for the totality of the injury suffered.
- Accordingly I am satisfied that the method adopted by both Mr Waters and Mr Featherby in the course of their submissions is appropriate, namely to place each of the specific injuries into their appropriate categories in the JSB Guidelines 7th Edition ("the JSB Guidelines") and to state what would be the appropriate award for that injury. The total of these awards must then be subject to an appropriate discount to take account of the fact that all the injuries were suffered simultaneously (save for the elbow injury that resulted from the subsequent fall) and in order to ensure that the final award of general damages is reasonable compensation for the totality of the injuries
- (a) The Brain Injury.
(i) It is common ground that Fiona suffered a very severe head injury (see the joint statement agreed on 21st December 2004 by Dr Powell and Professor Beaumont). Although the deficits in Fiona's working memory are described as mild in the same joint statement, the impairment of her short term memory is said to be mild to moderate and the deficit in her executive functioning is assessed as moderate. These various deficits are likely to be permanent.
(ii) Fiona's ability to work is greatly reduced, she has suffered an epileptic seizure and remains at some risk of further such attacks. She suffers from emotional and behavioura1 difficulties associated with the head injury and is vulnerable to low mood and psychiatric difficulties in the future. Her psychological condition has led to binge eating and weight gain. She will remain dependent on others. I therefore accept Mr Waters' submission that Fiona's brain Injury comes within the ISB 2(A)(c)(ii) category of brain damage, namely:
"(ii) Cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk) £50,000 to £82,000"
(iii) In my judgment, Fiona's brain injury is sufficiently severe to place it about midway within this particular category. I have therefore come to the conclusion that an appropriate award under this heading would be £65,000.
- (b) Physical Injuries. I am satisfied that Fiona continues to suffer from a certain amount of general pain and discomfort in her neck and back as a result of the injuries that she suffered in the accident. I also accept that she suffers pain in the region of her buttocks/hips that affects the way she walks. Although the aetiology of this latter pain is unclear, I am satisfied that it is genuine and that it is a result of the accident. Fiona also suffers pain and discomfort in her right knee when she kneels and her balance has been adversely affected. Although she tries hard to ameliorate her condition with regular and appropriate exercise, this does tend to exacerbate the pain and this in turn has an adverse effect on her sense of wellbeing. In order to deal with these various pains and discomfort, Fiona takes painkillers regularly. It is against this general background that I turn to consider the various specific physical injuries and resulting disabilities suffered by Fiona as a result of the accident.
(i) Foot Injury. There is no doubt that this was a serious injury with significant orthopaedic and cosmetic consequences. Fiona's balance has been adversely affected and further plastic surgery is required to improve the appearance of the foot. I accept that Fiona will always require bespoke footwear. It was Mr Waters' submission that the injury to Fiona's right foot fell between ISB categories 6P(c) and (d) for foot injuries, namely:
"(c) Very Severe
£46,000 to £60,000
To fall within this bracket the injury must produce permanent and severe pain or really serious permanent disability. Examples would include the traumatic amputation of the forefoot where there was a significant risk of the need for a full amputation and serious exacerbation of an existing back problem, or cases of the loss of a substantial portion of the heel so that mobility was grossly restricted.
(d) Severe
£25,000 to £37,000
Fractures of both heels or feet with a substantial restriction on mobility or considerable or permanent pain. The bracket will also include unusually severe injury to a single foot resulting, for example, in heel fusion, osteoporosis, ulceration or other disability preventing the wearing of ordinary shoes. It will also apply in the case of a drop foot deformity corrected by a brace."
(ii) Mr Waters acknowledged that most of the sequelae of Fiona's right foot injury fall within the lower of these two brackets, but submitted that the partial amputation of her forefoot (as he characterised the amputation of her non-viable toe) lifted it out of the top of the lower bracket, although the injury was not sufficiently serious to bring it clearly within the higher bracket. In my view, that overstates the seriousness of the toe amputation. I agree with Mr Featherby's submission that Fiona's injury comes towards the top end of ISB category 6P( d) and that the appropriate award for this particular injury would be £35,000.
(iii) Scarring. Fiona is a young unmarried woman. As a result of the injuries she suffered in the accident, she now has obvious facial scarring, head scars and resulting areas of alopecia. She has a noticeable tracheotomy scar that pulls when she is swallowing. Disregarding the scarring to and disfigurement of her right foot, Fiona has quite extensive body scarring to her back, her left hand, her right leg, her right knee, her buttock, her left breast and left elbow. Although she treats the scarring with ointments, balms and appropriate make up, camouflaging the scars is only partially successful. Understandably, Fiona is very conscious of her appearance and this natural anxiety is exacerbated by her limited ability to cope because of her brain Injury.
(iv) As it seems to me, the extent and nature of Fiona's scars are such as to bring it within ISB categories 7(B)(a)(iii) and 8, namely significant scarring "where the worst effects have been or will be reduced by plastic surgery leaving some cosmetic disability and where the psychological reaction ... having been considerable at the outset, has diminished to relatively minor proportions." In my view the appropriate award for this particular aspect of Fiona's injuries would be £12,000.
(v) Optical injury - Double vision. Although Fiona's double vision is permanent in both eyes, it only affects the complete field of vision when she is tired. Although the condition is ameliorated by wearing suitable glasses, Fiona would not otherwise need to wear glasses. I agree with Mr Waters' submission that the optical injury falls between ISB categories 4A(f) and (g), namely:
"(f) Cases of serious but incomplete loss of vision in one eye without significant risk of loss or reduction of vision in the remaining eye, or where there is constant double vision £13,000 to £21,500
(g) Minor but permanent impairment of vision in one eye, including cases where there is some double vision, which may not be constant £6,750 to £11,500."
In my view, the appropriate award for the optical injury would be £12,000.
(vi) Neck Injury. Fiona suffered a crush fracture of C7 and a neural arch injury. She has made a reasonably good recovery from the injury, but she remains at risk of degenerative arthritis and a somewhat greater that 50% chance of surgical fusion in 15 to 20 years. In my view, Fiona suffered a moderate neck injury (see ISB category 6(A)(b)(i)) that alone would attract an award of £8,000.
(vii) Wrist Injury. I accept Mr Waters' submission that an appropriate award for this particular injury (see ISB category 6(H)(d)) would be in the region of £4,000.
(viii) Knee Injury. Fiona suffered an undisplaced open transverse fracture of the right patella. It causes pain and discomfort when kneeling. It is clear from the evidence of Professor Shearer that osteoarthritis is likely to become symptomatic within 5 to 8 years and may require surgical intervention. In my view, this injury comes at the lower end of ISB category 6(M)(a)(iii), namely:
"(iii) Less severe injuries than those in (a)(ii) above and/or injuries which result in less severe disability. There may be continuing symptoms by way of pain and discomfort and limitation of movement or instability or deformity with the risk that degenerative changes may occur in the long term as a result of damage to the kneecap, ligamentous or meniscal injury or muscular wasting £14,750 to £23,500.
I agree with Mr Waters' submission that Fiona's knee injury alone would attract an award of£15,000.
(ix) Elbow Injury. As I have already indicated, on 31st December 2000 Fiona suffered a fall because of her poor balance and fractured her elbow. The fracture was treated by internal fixation. Fiona therefore suffered this particular injury as the result of a disability caused by the original accident. In my view, if a separate award in respect of the elbow injury were justified (as suggested by Mr Waters), it would be in the region of £5,000: see ISB category 6(G)(c). However, in my view, the correct approach to this aspect of the matter is to regard it as an example of the type of injury to which Fiona is now at risk as a result of her poor balance and for that risk to be taken into account (as it has been) when assessing the appropriate award for the injuries that have given rise to this particular disability (in particular, the right foot injury).
- The total of the awards for the various individual injuries suffered by Fiona (apart from the elbow injury) is £151,000, which can be rounded down conveniently to £150,000 for the purposes of this part of my judgment. Although breaking down the total injury into its various individual components clearly illustrates how serious an injury it was, I am satisfied that a sum of £150,000 exceeds what would be reasonable compensation for the totality of the injury suffered by Fiona in this case. In my view, an appropriate deduction from the global sum would be in the region of £40,000, giving a figure of £110,000. I am therefore satisfied that the damages to which Fiona is entitled for pain, suffering and loss of amenity is: £110,000.
- Loss of Earnings. As I have already indicated, I accept that Fiona would have gone to University, where she would have obtained a decent degree, and that she had many excellent qualities that would have stood her in good stead in the sphere of employment. I also accept that it is probable that she would have made her home in the London area. It was common ground that, apart from working during University vacations (in effect, agreed at £5,000: see paragraph 17 of Mr Waters' written closing submissions), Fiona would have entered the employment market in September 2002. So far as concerns the overall working life actuarial multiplier, I am satisfied that Mr Featherby's figure of 24.67 is appropriate (i.e. with a retirement age of 65).
- Since I am satisfied that Fiona would have entered professional employment, I am also satisfied that it is likely that her employment would have been pensionable. I would therefore assess Fiona's chance of obtaining pensionable employment (but for the accident) at, say, 80%. In the light of that assessment the parties have now agreed that the amount to which Fiona is entitled for the loss of the chance of benefiting from pensionable employment is the sum of: £35,000.00.
- During the course of Mr Featherby's final submissions, I indicated that I accepted Ms Greenway's general assessment of Fiona's employment prospects (see Ms Greenway's report dated 19th April 2005, quoted in paragraph 13 above). In the light of that indication Mr Featherby produced a schedule of Fiona's past and future loss of earnings, calculated on the basis of Ms Greenway's figures. Mr Featherby's schedule indicates a total loss of earnings of £693,774.26 (the "gross figure"), made up of £45,882.10 for past loss (from 1st September 2002 to 25th April 2005) and £647,892.86 for future loss of earnings.
- Mr Featherby submitted that the gross figure of £693,774.26 should be discounted by about 40% to, say, £400,000 to take account of possible developments in Fiona's life that would affect her earnings, such as: (i) not working at all, (ii) not working after marriage, (iii) not returning to work after her children's childhood, (iv) working part-time for all or part of her working life, (v) retirement before age 65, (vi) ill-health and (vii) unemployment.
- For his part, Mr Waters indicated that the gross figure of £693,774.26 was acceptable. He was clearly right to do so. His equivalent calculation produced a total of £707,866.92 (see paragraphs 16 and 22 of Mr Waters' written closing submissions), the difference being largely due to Mr Waters' application of an uplift of 15% to the average earnings throughout (see below). Mr Waters did not suggest that the further discount for which Mr Featherby contended was wrong in principle. However, it was his submission that, on the facts of this case, the suggested further discount should be "traded off" against both the 15% uplift that Ms Greenway considered appropriate in respect of average earnings in London and the South East (and which had been omitted in Mr Featherby's calculation up to age 40) and a further uplift to the average figures from age 30 that Mr Waters' submitted was appropriate to take account of the real chance that Fiona's all round qualities would have resulted in her earning more than the average.
- In my view there is merit in both positions. I accept that Mr Featherby's scheduled calculations only take account of accelerated receipt and early mortality and that a further discount from the gross figure is necessary to take account of the sort of matters that he identified. However, I am satisfied that Ms Greenway's 15% London uplift has not been incorporated into Mr Featherby's scheduled calculations up to age 40 (and, in my view, it should have been, for the reasons already given) and I am also persuaded that Fiona's qualities were such that there was a real chance that she would have earned more than the average from about age 30. Taking all these matters into account, I have come to the conclusion that a discount of about 25% to the gross figure is appropriate, bringing the gross figure down to, say, £420,500.00, to which £5000 must be added to take account of lost income during University vacations, making a total for past and future loss of earnings of £425,500, against which credit must be given for any residual earning capacity that Fiona may have ..
- It was common ground that credit must be given for Fiona's residual earning capacity and it was also common ground that there must be some such capacity. Mr Waters submitted that, on the basis that Fiona was reasonably seeking suitable part-time with a Charity, £3,000 per annum was an appropriate figure (on the basis of a 10 hour week at about the minimum wage) and this gives rise to a total figure of £3,000 x 24.67 = £74,010, say £74,000. For his part, Mr Featherby suggested a figure of £85,000, based on a calculation that used 20 hours per week, an hourly rate slightly higher than the minimum wage and a 50% discount to take account of contingencies, with something extra for the handicap on the labour market: see page 7 of Mr Featherby's written closing submissions.
- On this aspect of the matter, I prefer Mr Featherby's approach. Although his calculation is based on a number of hours and hourly rate that may be somewhat optimistic, given the extent and nature of Fiona's disabilities, I do not consider it to be unduly so, having regard to her admirable qualities and determined character. I am satisfied that, to the extent that there is this somewhat optimistic aspect to Mr Featherby's calculation, his suggested 50% discount is sufficient to take account of that as well as the other contingencies. In short, I am satisfied that a deduction of £85,000 from the gross figure for future loss of earnings is appropriate to take account of Fiona's residual earning capacity.
- Accordingly, for those reasons, I am satisfied that Fiona is entitled to a total of £425,000 - £85,000 for past and future loss of earnings, namely: £340,000.
- Provision of Future Care. As I have already indicated, the joint statement agreed by Dr Powell and Professor Beaumont made it clear that the following future care items are not in dispute (see paragraph 9 of the joint statement, quoted in paragraph 14 above): (i) Neurological psychotherapy for five years with a contingency fund for a "when needed basis" (this item has now been agreed at a figure of £13,500: see paragraph 87 below), and (ii) appointment of a Case Manager on a permanent basis, although with involvement tailing off over the years. However, the parties are not agreed as to the future cost of such a Care Manager.
- It was common ground that Fiona requires additional support from a support worker at present. However, there is a significant dispute as to the amount of support required and as to the duration of the need for such a support worker. I therefore now turn to consider each of the disputed future care items in turn.
- (i) Case Manager. Mr Waters stressed that both Dr Powell and Professor Beaumont had agreed that Fiona's need for a case manager was likely to be a permanent one and, therefore, although it will reduce over the years, there will be such a need throughout her entire lifetime. It was Mr Waters' submission that a broad-brush approach was appropriate, whereby the overall need was calculated on a full-life basis (30.93 was agreed as the appropriate multiplier) for 3 hours per month at £80 per hour and ignoring the annual contingency provision suggested by Ms Cathy Johnson ("Ms Johnson"), the Claimant's care expert: i.e. £5,100 x 30.93 = £157,743.
- Mr Featherby relied mainly on the evidence of Ms Gillian Conradie ("Ms Conradie": the Defendant's care expert) that a case manager would only be needed for a five year period " ... as once a realistic framework is in place, I consider that Miss Cannon will have the skills to maintain and extend her cognitive, social and work related abilities without further assistance": see Ms Conradie's report dated April 2005 at page 26. Mr Featherby acknowledged that Fiona would need occasional support in the future, but submitted that her need fell far short of a need for continuous and long-term professional involvement. Mr Featherby suggested that Fiona's family and friends would provide much of the support that might be needed in the future - just as they have often done in the past. So far as concerns a case manager, it was therefore Mr Featherby's submission that Fiona's future requirements could properly be met by 3 hours per month at £75.00 per hour for 5 years (a multiplier of 4.70), plus a one-off contingency fund of £12,500: i.e. £3,900 x 4.70 + £12,500 = £30,830.
- In my view, both Ms Conradie's approach and that of Mr Featherby fail to take sufficient account of the lifetime need for a case manager that was recognised in the joint statement agreed by Dr Powell and Professor Beaumont. I am satisfied that Fiona's neurological problems are such that, although she does have very supportive family and friends, she will always require a certain amount of professional support to which she can turn and upon which she can rely. I am also satisfied that, so far as concerns Fiona's need for a case manager, there is no reason to doubt the agreed assessment of Dr Powell and Professor Beaumont that the extent of the case manager's involvement will "tail off' over time.
- On the other hand, as it seems to me, Mr Waters' "broad-brush" approach to the issue goes too far the other way and does not take sufficient account of the diminishing involvement of a case-manager that will take place over time. I also consider that Ms Johnson's assessment fails to take this aspect of the matter sufficiently into account, although I am satisfied that her annual case management costs (including a contingency of 8 hours) do provide a suitable starting point for the calculation. In my view, therefore, the approach that best reflects Fiona's lifetime need for a case manager, but one whose involvement will diminish over time, is to reduce Ms Johnson's figures by one third at ten-yearly intervals of the agreed multiplier of30.93, thus: (i) 10 years at £5,740 = £57,400, (ii) 10 years at £3,827 = £38,270 and (iii) 10.93 years at £1,913 = £19,130. Accordingly, I have come to the conclusion that the appropriate award for the future provision of a care manager for Fiona is £57,400 + £38,270 + £19,130, namely: £114,800.
- (ii) Support Worker. I am satisfied that Fiona has greatly benefited from the assistance and support that she has received from Aniela Kornica since her appointment in September 2004. As Mr Waters pointed out, Professor Beaumont accepted that it would be inappropriate to withdraw the service of a support worker immediately, but that there should be a protracted period of withdrawal. It is also to be noted that, in paragraph 9 of their agreed joint statement, Dr Powell and Professor Beaumont acknowledged that Fiona would benefit from the appointment of (inter alia) a job coach for a period of time up to about 5 years.
- The Defendant's neurological expert, Professor Michael Trimble, acknowledged that the present level of professional care (i.e. a case manager and support worker) was not unreasonable (see page 8 of Professor Trimble's report dated 13th April 2005) and I accept his conclusion to that effect. The real issue between the parties, therefore, is with regard to the period of time for which that professional care, at the existing or any reduced level, should continue into the future. Of course, I have already dealt with one aspect of that issue, namely the appropriate provision for a case manager for Fiona's lifetime. Accordingly, the only remaining aspect of the issue is that being considered in this part of my judgment, namely the appropriate future provision for a support worker.
- I have to say that I was not impressed by the evidence of either Professor McLellan or Dr Eames with regard to the need to provide for a support worker for Fiona. As it seems to me, Mr Featherby's criticism of their evidence (see paragraph 5(a)(i) and (ii) of his written closing submissions) was justified for the reasons given. Nor am I persuaded that Fiona's disabilities are such that she will require the degree of support that Ms Johnson suggested was necessary (i.e. an overall average of 14 hours per week for life) which, as it seems to me, is not justified either by the medical evidence or the factual circumstances of the case. However, I do accept that Dr Powell's evidence with regard to his recently acquired greater awareness of the nature and extent of Fiona's disabilities and his reasons for modifying his agreement to paragraphs 5, 9 and 10 of the joint statement (see paragraph 16 above) is of some general assistance with regard to the issue of Fiona's need for a support worker.
- It was Mr Featherby's submission that Fiona would need a support worker for a period of 2 years (a multiplier of 1.95) at an annual cost of £5,631, together with a third year contingency of £485.18 and a general contingency fund of £12,500. For his part, Mr Waters submitted that, if I did not accept Ms Johnson's suggested provision, the minimum required was 6 hours per week (at a cost of £18.90 per hour) for Fiona's lifetime, i.e. £5,896.80 x 30.93 = £182,388.
- It is clear that Fiona has tried and continues to try her utmost to live a normal life and to ameliorate her medical condition, both psychological and physical. Her father has been (and will continue to be) a driving force and source of encouragement in this respect. She has also benefited from the support of her family and friends. As a result, Fiona has managed to achieve a degree of success in her attempts to lead a normal life - but there have also been a number of significant failures and disappointments, as summarised on pages 17 and 18 of Mr Waters' written closing submissions.
- Although I have no doubt that Fiona will continue to strive to be as independent as possible, I am satisfied that her disabilities are such that she will continue to need the same level of support from a support worker as she presently receives for a far longer period than the two years suggested by Mr Featherby. In my view, the present level of support will be required for about five years. Thereafter, the need for a support worker will become intermittent, rather than continuous. As Mr Waters pointed out, it was generally accepted that there will continue to be some occasions in the future when Fiona will benefit from professional support to help her cope with unexpected problems, crises or stresses and that such a need will continue for her lifetime.
- In my view, it is important to bear in mind that the life-time provision of a case manager ensures that there will always be a "long stop" (to use Professor Beaumont's expression) to whom Fiona can turn for professional guidance and support. I have therefore come to the conclusion that Fiona's future need for a support worker will be met by continuing the current level of support (i.e. 6 hours a week at £18.90 per hour = £113.40 per week = £5,896.80 per annum) for five years together with the provision of an appropriate contingency sum to cover the cost of providing Fiona with the professional support she requires on those occasions in the future when she will need it. Accordingly, on that basis, the total amount to which Fiona is entitled for future provision of a suitable support worker is £5,896.80 x 5 = £29,484.00 plus £30,000.00 contingency, namely: £59,484.00.
- Footwear. Experience has shown that normal shoes damage the tender surface of Fiona's upper right foot, sometimes causing it to bleed. In any event, there was no issue as to Fiona's need for custom-made or bespoke footwear and it suffices to quote the following conclusion from the disclosed report of Mr Peter Crane (Mr Crane), a Senior Orthotist instructed on behalf of the Defendant, who examined Fiona on 9th November 2004:
"Whilst Fiona may not encounter any trouble with the fitting of a shop bought shoe for the left foot, it would be impossible for her to purchase a pair of shoes as standard which would accommodate her deformed right foot. This is due to the following: the right foot being larger than the other, a missing fourth toe, a much wider right foot, and the right foot being a different shape to the left.
It has been established that she will not be able to wear any type of court or slip on shoe; and will need specialist footwear to enable her to carry out any activity that she may wish to undertake. Her condition appears to be stable."
- In my view, it is clear from the evidence of Mr Kelvin Smith, the expert instructed on behalf of the Claimant, and Mr Crane's report (as well as the evidence of Fiona herself) that Fiona will always require bespoke footwear because of the injured state of her right foot. I therefore reject Mr Featherby's suggestion that the need for special shoes has diminished following the treatment carried out on Fiona's foot.
- It was common ground that the bespoke footwear in question is expensive (e.g. about £2,250 per pair of boots, £1,600 per pair of shoes and £1,550 per pair of trainers etc): see the table of costs set out on page 52 of the Claimant's Schedule of Loss and Damage. I accept Mr Kelvin Smith's evidence that each pair of shoes and boots will only last for a relatively short time of about 12 to 18 months. This is because the soft leather that is necessary to avoid injury to Fiona's tender upper right foot is less durable than the harder leather used in normal shoes/boots.
- Mr Featherby submitted that provision should be made for two pairs of boots (£4,500), two pairs of shoes (£3,200) and one pair of trainers (£1,550) every two years (a total of £9,250), calculated by reference to the agreed full life multiplier of 30.93, i.e. £9,250 x 15.5 = £143,375.00. It was Mr Featherby's submission that the gross figure of £143,375 should be discounted by about £500 per annum (i.e. £15,465) to allow for what Fiona would have spent on footwear in any event. In my view, Mr Featherby's approach does not make sufficient allowance for the shorter life of the bespoke footwear, nor is there sufficient provision for a reasonable number of shoes, boots and special activity footwear.
- Mr Waters submitted that footwear is a basic necessity and that Fiona will always have to have bespoke footwear in order to be comfortable. I accept those submissions. Mr Waters contended that the number of pairs of boots, shoes, trainers and sandals for which a claim is made (2, 3, 1 and 1 per annum respectively) was not unreasonable, given the more limited life of the footwear in question and the ordinary requirements of every day life. In my view that is to take too pessimistic a view of the durability of the footwear in question, although I accept that the number of pairs upon which the claim is based is reasonable. Furthermore, as it seems to me, Fiona will require a new pair of Wellington boots (assuming that these will be bespoke rubber boots) about every five years, rather than two. In my view, Mr Waters' annual figure for the cost of boots, shoes, trainers, sandals and orthoses should be discounted by 20% to allow for the fact that the life of the footwear in question can be up to 18 months and the annual cost of the Wellington boots should be calculated on the basis of a five year life, i.e. £10,216 + 460 = £10,676. Accordingly, I am satisfied that, after deducting the cost of normal footwear (£540 x 30.93 = £16,702.20), Fiona is entitled to a total of £330,208.68 - £16,702.20 = £313,506.48 for the future provision of suitable bespoke boots, shoes, sandals, trainers, orthoses and Wellington boots.
- To that figure must be added a further £15,222 to cover the cost of present and future provision of suitable bespoke riding boots, golf shoes and ski liners. On this aspect of the matter, I accept Mr Waters' calculations and reasoning, as set out in paragraphs 65 and 66 of his written closing submissions.
- Accordingly, in order to make proper provision for all her reasonable requirements for suitable footwear, I am satisfied that Fiona is entitled to a total figure of £313,506.48 + £15,222, namely: £328,728.48.
- Other Heads of Claim. I now turn to deal with the other heads of claim, following the order in which they appear in Mr Waters' written closing submissions.
- (1) Items lost or destroyed in the accident. These have been agreed in the total sum of:
£250.00
- (2) Past Care and Attendance. (i) Professional Care. The cost of providing professional care in the past (i.e. case manager and support worker) was agreed at a total of £4,856.01 (case manager) and £1,491 (support worker), namely the sum of:
£6,347.01.
- (ii) Gratuitous Care. In cross-examination, Ms Conradie accepted that Ms Johnson's estimate of the number of hours of past gratuitous care was within a reasonable band. In my view, she was right to do so, having regard to all the evidence. However, Ms Johnson's figures for 2005 have to be limited to 17 weeks, so that only the period up to the commencement of this trial is covered. Although Ms Conradie accepted that there was a significant element of support in much of the gratuitous care that Fiona had received from family and friends, she rejected the suggestion that some of the rates should be enhanced to equate with those of a professional support worker. Again, in my judgment, she was right to do so. I agree with Mr Featherby's submission that there is no real basis for such an enhancement and I also agree that the award should be discounted by 25% to take account of the gratuitous nature of the care provided. Accordingly, I am satisfied that the appropriate discounted figure for the past gratuitous care is 1689 hours at the rates suggested by Ms Conradie x 75% = the agreed figure of £11,250. Accordingly, I am satisfied that the amount that Fiona is entitled to recover under this particular head of claim is the sum of:
£11,250.00.
- (3) Cost of Private Health Care. This item has been agreed in the total sum of:
£6,821.50.
- (4) Cost of Medical/Complementary Treatments. The actual cost of the various items that go to make up this particular head of claim are all agreed as figures. In addition, liability is agreed in respect of most of the items, totalling £11,886.20 (see paragraph 4 of Mr Featherby's written closing submissions). So far as concerns the remaining items, I am satisfied that Fiona is also entitled to recover the cost of these items for the reasons summarised in paragraphs 84 to 89 of Mr Waters' written closing submissions. Accordingly, in my view, Fiona is entitled to recover the full amount claimed under this particular heading, namely: £17,992.89.
- (5) Personal Training Costs I accept Fiona's evidence that her personal trainer has helped teach her techniques that alleviate the pain that she still suffers. He has also taught her appropriate exercises that take proper account of her injuries/disabilities, thus minimising the risk of further injury. I accept that Fiona cannot do all normal exercises and needed skilful guidance and assistance to learn how to approach physical exercises in an appropriate way. However, I take Mr Featherby's point that many young women employ personal trainers nowadays. Although Fiona gave evidence that, on the balance of probabilities, she would not have done so because she would have continued to get exercise through her sporting activities, I take the view that this might well have changed with the passage of time. Furthermore, I am not persuaded that the nature of Fiona's physical injuries require her to have a personal trainer on a permanent basis. I am satisfied that a period of skilled guidance for the learning of appropriate techniques and exercises was required and, as it seems to me, all that was necessary in that regard would have been achieved in a relatively small number of sessions. Doing the best I can, I have come to the conclusion that the claimed cost of £3,040 should be discounted by 40% to allow for the limited time that the services of a personal trainer were actually required to deal with the consequences of the accident. Accordingly, I am satisfied that the amount that Fiona is entitled to recover for this item is: £1,824.
- (6) Oliver Zangwill Centre Costs. These costs have been agreed in the total sum of:
£25,668.00.
- (7) Rehab UK Costs. These have been agreed in the total sum of:
£35,134.80.
- (8) and (9) Travel Expenses and Taxis. I accept that Fiona is entitled to be compensated for additional travel and taxi expenses that she has incurred as a result of her injury. The amounts claimed are said to be for various trips for medical/complementary medicine treatments, journeys home from the Oliver Zangwill Centre and the like. I accept that an appropriate mileage rate is 40p per mile. However, this particular claim does involve a certain amount of estimation (particularly with regard to taxi journeys) and common sense suggests that not all trips were exclusively for the purpose of medical treatment. Furthermore, I accept that some credit should be given for travel costs that have not been incurred, but otherwise would have been. Again doing the best I can, I have come to the conclusion that the sum claimed should be discounted by 50% to take account of these various factors, making the total recoverable sum for this head of claim: £9,962.97.
- (10) Automatic Car. This claim is for the amount by which the cost of an automatic car exceeds that of a manual shift car. However, I am not satisfied that the injury to Fiona's right foot does necessitate a change to a car with automatic transmission. In a manual shift car, Fiona would only use her right foot to control the accelerator pedal. There is no evidence that suggests that she cannot perform that function satisfactorily with her right foot in its injured state. Furthermore, the automatic car will continue to have a somewhat enhanced value and, as it seems to me, there is a possibility that Fiona would have changed to an automatic transmission in any event. I am therefore not persuaded that this item is recoverable as damages.
- (11) Parking Fines. I am not persuaded that there is any proper basis for claiming these as damages.
- (12) Clothing. To the extent that these costs were incurred to provide disposable clothing to accommodate (in particular) Fiona's plaster cast/fixator, I am satisfied that they are recoverable because the clothing would not otherwise have been purchased. However, I am not persuaded that the cost of clothing bought because Fiona had put on weight is recoverable as damages. In my judgment, therefore, the amount that Fiona is entitled to recover under this particular heading is:
£346.46.
- (13) Spectacles. This item is agreed in the sum of:
£953.62.
- (13a) Shoes. These costs are agreed in the sum of:
£7,500.00.
- (14) Equipment. This item is agreed in the sum of:
£2,605.08.
- (14) Telephone. This claim is for the cost of the calls made directly as a result of the accident and Fiona's consequent need for support and assistance from her family, friends and others. Undoubtedly there have been a large number of such calls. The claim (£3,370.73) is an estimate of the amount by which Fiona's phone bills (both landline and mobile) have been inflated as a result. Doing the best I can, it seems to me that a reasonable amount to cover this increase in cost lies somewhere between the respective positions adopted by the parties. I have therefore come to the conclusion that the amount that Fiona is entitled to recover under this heading is:
£2,000.
- (15) Miscellaneous. The first of these items is (makeup, painkillers etc) is agreed in the sum of £2,174.91. I am satisfied that the claims for vitamins etc, hairclips, skiing equipment and orthopaedic mattresses are recoverable in the amounts claimed for the reasons given in paragraphs 113 to 115 and 117 of Mr Waters' written closing submissions. I accept Mr Featherby's point that the rent saved from the third year at Newcastle cancels out the rent allegedly wasted in the second year. So far as concerns the claim for the cost of a running machine, I am not persuaded that this item would not have been purchased but for the accident or that it is reasonably required as a result of Fiona's injuries. Accordingly, I am satisfied that the total amount to which Fiona is entitled under this particular heading is:
£4,391.89.
- Future Costs. I now turn to deal with a number of claims made in respect of future costs and expenses, following the same order as that in Mr Waters' written closing submissions.
- (1) Insurance Premiums. This claim is in respect of any increase in the cost of medical and travel insurance that is the result of the injuries suffered by Fiona. However, there is no evidence as to what, if any, increase in cost there will be and I do not feel able, in those circumstances, to make any award.
- (2) Private medical/complementary treatment. Although Professor Shearer is not in favour of any further surgery, Ms Sacks has indicated that further plastic surgery can be carried out to improve the condition of Fiona's foot, hand and scalp: see Ms Sacks' final report dated 21st July 2004. I am satisfied that Fiona is keen to have the surgery carried out and will go ahead with the suggested treatment. In my view, therefore, she is entitled to recover the cost of the further treatment specified by Ms Sacks, namely £9,273.00. As to the remaining items under this particular heading, I accept that there will be some continuing need for these various therapies/treatment in the future. However, I am not persuaded that the level of need will be anything like as high as that suggested in the Schedule of Loss and Damage. Furthermore, it is very likely that, having regard to her very active and sporting lifestyle, Fiona would have had many of the therapies in question in any event (e.g. osteopathy, massage and physical therapy). Having regard to these reservations and doing the best I can, I have come to the conclusion that the total sum claimed in respect of these various complementary therapies/treatments should be discounted by 65%, i.e. £57,597.25 x 35% = £19,809.04. Accordingly, I have come to the conclusion that the total sum to which Fiona is entitled under this particular heading is £9,273.00 + £19,809.04, namely:
£29,082.04.
- (3) Personal Training Costs. For the reasons already given (see paragraph 72 above) I am not persuaded that there will be any future need for a personal trainer as a result of the injuries suffered by Fiona in the accident.
- (4) Psychologist. This item is now agreed in the sum of:
£13,500.
- (5) Travel and Taxis. I accept that some allowance should be made to cover any additional costs incurred to meet Fiona's future need to travel by taxi when in pain or fatigued as the result of the accident. She is also entitled to be compensated for any travel costs incurred solely for the purpose of future attendance for necessary treatment. Inevitably, the necessary provision can only be an estimate. However, in my view, the figure claimed in the Schedule of Loss and Damage is far too high. I am satisfied that sufficient provision to cover these future additional travel costs is the sum of:
£3,500.
- (8) and (9) Automatic Car and Adaptations. As I have already indicated (see paragraph 76 above) I am not persuaded that the additional cost of an automatic car is recoverable as damages. However, to the extent that this claim is for the cost of adapting the automatic transmission on an automatic car so as to enable Fiona to use her left foot to control the accelerator and footbrake pedals, rather than her injured right foot (which is, of course, the foot normally used), I am satisfied that the item is recoverable. I accept that Fiona will need to avoid the additional burden on the injured right foot involved in having to apply both the brake pedal and the accelerator. Accordingly, I am satisfied that Fiona is entitled to recover the amount claimed (£237.00) for carrying out the necessary adaptation, although it is not clear on what basis the additional travel costs are claimed, since Fiona would have to travel to pick up the new car in any event. Accordingly, I am satisfied that Fiona is entitled to £237 x 10.58 (the appropriate multiplier to reflect the likely triennial incidence) namely the sum of:
£2,507.46.
- Spectacles. Fiona is now required to wear spectacles as a result of the accident and Mr Featherby does not dispute the principle of this particular claim. However, common sense and experience suggest that Fiona would have needed to wear spectacles in any event as the natural result of aging, although I accept that there is nothing to suggest that this would have occurred before late middle age (i.e. the mid fifties). I am satisfied that some discount should be made to take account of this possibility. Furthermore, although I accept that Fiona loses her spectacles from time to time as a result of forgetfulness caused by the accident, I agree with Mr Featherby's submission that the evidence as to the likely incidence of this problem in the long term is not compelling. I have therefore come to the conclusion that allowance should be made for 3 pairs of spectacles every 2 years and that the gross amount should be discounted by 20%, i.e. £213 x 1.5 x 30.93 = £9,882.14 which after applying a 20% discount = £7,905.70. Accordingly, the amount to which Fiona is entitled under this heading is:
£7,905.70.
- (10) Aids and Equipment. This item has now been agreed at:
£5,578.55.
- (11) Additional Telephone Costs. I accept that, as a result of her disabilities, there will be occasions in the future when Fiona will need to use the telephone in order to obtain support from friends and family. The likely additional cost to Fiona by reason of this is difficult to estimate. However, I consider that the approach adopted in the Schedule of Loss and Damage results in much too high a figure. In my view, it is likely that many such future telephone calls will be combined with or instead of social calls that Fiona would have made in any event, what Mr Featherby characterised as "swings and roundabouts". However, I am satisfied that there will nevertheless be some additional cost to Fiona. In my view a lifetime allowance of about £ 150 per annum is sufficient to make reasonable provision for this additional cost. Accordingly, I have come to the conclusion that, under this head of claim, Fiona is entitled to compensation of about £150 x 30.93 = £4,639.50, say:
£5,000.
- (12) Miscellaneous Items. I accept that there will be some continuing need for these items, although the need for some of the items may decline over time. Furthermore, in my view, a number of the items would have been bought from time to time in any event (e.g. analgesics, vitamins, creams) and/or will result in a small amount of saved expenditure (e.g. in the cost of normal makeup and other dietary supplements). In my judgment, these various possibilities should be allowed for by discounting the sum claimed by about 40%, i.e. £16,805.88 x 60% = £10,083.53, say the sum of:
£10,000.
- Conclusion. For the reasons given, I am satisfied that Fiona is entitled to judgment for the total of the sums indicated above together with interest. I will hear further submissions from Counsel as to the precise sum for which judgement should be given and as to any further Orders or Directions that are required.
