Mr Justice Keith:
Introduction
- The claimant, Martin Redhead, was born on 24 December 1987. On 2 September 1996, when he was almost 9 years old, he was knocked down by a car driven by the defendant. Martin's injuries were such that he is not capable of managing his affairs, and these proceedings have been brought on his behalf by his mother, who acts as his litigation friend. Liability for Martin's injuries was agreed at 95%, and was subsequently approved by the court. The parties have not been able to agree the amount of Martin's damages, and this is the court's judgment on the level of the award. The principal area of dispute relates to the extent to which Martin will need future care, and the responsibility, if any, of the local authority to fund it.
The relevant facts
- At the time of the accident, Martin was living in Rishton, Lancashire, with his mother, Carole Redhead, an older brother and sister, James and Emma, who were the children from his mother's first marriage, and a younger sister, Michelle. His parents had separated some time previously. He was going to his local primary school. The last report before his accident showed him to be a child of average ability, but who had made a lot of progress in the last year.
- According to his mother, Martin had been a bright and cheeky boy, but he had begun to change 18 months or so before the accident. He became withdrawn and would not go out and play. It later emerged that Martin was being sexually abused by a relative aged about 14, though how long that had been going on for is not known. This came to light in June 1995, and Martin was described then as being rude, disobedient and defiant, throwing temper tantrums when he did not get his own way. His mother did not attribute his bad behaviour just to the sexual abuse. She also attributed it to the breakdown of her marriage and the irregular contact Martin then had with his father. Martin was seen by child psychiatrists, and although his mother says that she felt that he was back to his old self by the summer of 1996, Martin's behaviour had still been causing some worries in April 1996 when he had last been seen by one of the psychiatrists.
- The accident which gave rise to the claim occurred on the last day of the summer school holiday. Martin was unconscious when he arrived at the Burnley General Infirmary, and he was immediately transferred to the Royal Manchester Children's Hospital. He had a fractured skull, and a scan revealed a large extra-cranial haematoma, contusions and bruising. He was on a ventilator in the intensive care unit for two weeks before transferring to a paediatric ward. By then, he was beginning to show some awareness and to respond to verbal instructions. His condition gradually improved over the next few months, and he was discharged from hospital on 11 November 1996, though he went to the children's ward at Queen's Park Hospital every day for the next few weeks.
- Martin's transition to life outside hospital proved difficult. His attention span was short, his speech and short-term memory were affected, and he would get headaches. His motor-skills were also affected in particular his balance and co-ordination with the result that he needed a wheelchair when he eventually went back to school. He had a marked tremor in his hands, which meant that he needed help with cutting up his food, toileting and dressing, though as he got older he was increasingly able to do things for himself. He was prone to mood swings, he was aggressive at times and had a tendency to use bad language.
- Martin's education resumed in December 1996 when he began to attend Blackamoor Special School in Blackburn, a school for children with special educational needs. He moved from there to Edge End High School in Nelson, a mainstream secondary school, in September 2000. He left school in the summer of 2004, and for the last two years he has been attending Burnley College taking a one-year pre-GCSE foundation course in information communication technology, for which he obtained a merit, and a one-year BTEC course for information technology practitioners. The course had not ended by the time the hearing had concluded.
- Over this whole period, Martin has been living at home with his mother. The family moved to Clayton-le-Moors in 1997 and to Clitheroe in 2000. In 2001, Mrs Redhead's new partner began living with them, but the relationship broke down in October 2004. Mrs Redhead attributes that in part to the amount of time she had to devote to Martin. Martin's half-brother, James, left home about six years ago. In May 2005, Mrs Redhead, Martin and Michelle went to live in a spacious farmhouse in Clitheroe where Emma was living with her boyfriend. Emma had had her own problems in the past, and things did not work out, so a few months later Mrs Redhead, Martin and Michelle moved to their present home in Altham. Emma is now estranged from her mother. For some years, Martin saw very little of his father. Mr Redhead found it difficult to deal with Martin's accident. Things improved later on, though Martin has seen very little of his father since his father remarried.
- When Martin first returned to school, he received a considerable amount of therapy physiotherapy, occupational therapy, and speech and language therapy. Over time this was reduced, though the therapists continued to monitor him. By the time he went to secondary school, he was still experiencing difficulty with movement. He had poor physical control, his gait was awkward and his visual-spatial sense was impaired: he appeared not to see things in front of him or to his side which would have been obvious to others. He talked slowly, and although he was fairly easy to understand, his speech became slurred when he got tired. His concentration span continued to be short, he was easily distracted, and his short-term memory continued to be poor. Martin's comprehension did not appear to be affected, but his thinking was noticeably slow. He did not think ahead, he was impulsive at times, and he was often surprised by the consequences of his actions. He was very volatile, with significant mood swings, and his behaviour would sometimes be aggressive, but he had learned to control the most obviously anti-social aspects of his behaviour. Having said that, he displayed obsessional traits for example, over his belongings and a threat to them could trigger a behavioural outburst.
- Martin was still experiencing these difficulties by the time he left secondary school. He was no longer having speech and language therapy, as the therapist took the view that there was nothing more she could do. The slowness of his speech had set him apart from other boys and had acted as a barrier to his successful integration into the life of the school. There were instances of inappropriate behaviour and language. His sleep pattern had become disturbed, and his tendency to be obsessive would manifest itself by his need to check that the windows and doors were locked. He needed the security and structure of his regular routine, and struggled to cope with unexpected changes to it. He had become largely independent in personal care though he had an almost compulsive attitude to personal hygiene but he continued to need help and supervision at home. He was unwilling to get out and about, and spent most of his time in his bedroom.
- At about the time Martin left secondary school, a case manager, Anne Riley, was appointed. She has worked closely with Martin and his mother to help Martin get the most he can out of college, to encourage him to participate in suitable activities outside the home, and to develop his social and daily living skills. In addition, it was acknowledged that Martin needed someone of roughly his own age to provide him with support at college. That support was provided by Jonathan Evans ("Johnny"), a friend of James. Johnny would be with Martin when he was at college, helping him when he needed assistance such as acting as his scribe, keeping Martin on track and making sure that things did not get out of hand. Martin and Johnny got on very well, but it was never likely to last indefinitely, and after a year Johnny went off to train as a plasterer. Another support worker was appointed at the beginning of Martin's second year at college, but that proved unsuccessful, and she left after six weeks. That meant that Martin was without a support worker for a while, and since the college was unwilling to allow Martin to attend on his own, he did not go to college during that time. At the beginning of 2006, a new support worker, Michael Strachan, was appointed. By the time the hearing was concluded, Michael was still with Martin, and they were getting on well. While Martin has been at college, Michael spends 38 hours a week with him: four days from 8.00 am to 5.00 pm, and one day when Martin has not been going to college from 9.00 am to 4.00 pm, with an hour off for lunch each day.
- When the trial first began in March 2006, it was hoped that Martin would stay on at Burnley College for another two years and complete a course leading either to a national certificate or diploma in information technology. Unfortunately, the trial had to be adjourned because of the illness of one of the witnesses. By the time the trial recommenced in June, the plans for Martin had changed. He had recently had an interview at Accrington and Rossendale College, and the proposal was that he would start a business studies course there in September.
Martin's current personality and behaviour
- Martin did not give evidence. The view was taken that he would give an unrealistic and over-optimistic assessment of his abilities and an overly ambitious account of his plans for the future. There is some evidence that this view is correct, and that Martin's insight into his abilities is less reliable than he thinks. For example, he has spoken of taking a "gap year" performing voluntary service overseas, and he has talked of a possible career in childcare or social work. Neither of these options are realistic ones.
- The evidence about Martin's current personality and behaviour came from many sources. There were the people like Mrs Redhead and Michael Strachan who see him all the time, the people like Anne Riley who see him regularly, the people like those at Burnley College who have seen him when the need arose, the professionals who have been looking after him, and the care experts who have seen him for the purpose of preparing reports on him for the court. The picture which has emerged is of a young man who made a remarkable recovery from extremely serious injuries, but whose speech, gait and athleticism remains markedly affected, and who has character and personality traits which mean that he cannot yet be left to look after himself without significant support. He still has a tendency to act impulsively, without thinking through the consequences of his actions. His attention span is not what it should be, with the result that he can become distracted. He can be aggressive and lose his temper, though instances of that have decreased over the years. He still has a tendency to get obsessive about things, and he does not like any change in his routine. He can behave inappropriately. And he finds forming relationships difficult with the result that he becomes socially isolated.
- That does not mean that he is completely dependent on others at all times. His mother is frequently surprised by what he can do. For example, his behaviour at college was described as being as good as any other student. He works hard and was likely to obtain a merit at the end of the last academic year. He has begun to spend breaks in lessons with fellow students, and does not feel the need to be with Michael all the time. He recently went to the cinema with a girl he met on the internet. And there is the possibility that the more he is weaned off support, the less he will need it. Unquestionably, Martin himself wants to lead a more independent life, and his mother is encouraging him to do that. But despite all that, there undoubtedly is and will continue to be a need for Martin to have support of some kind for the rest of his life.
The impact of the sexual abuse
- It is contended on behalf of the defendant that Martin's character and personality traits are not entirely attributable to the accident. They may have been in part the consequence of the sexual abuse which came to light when Martin was seven, especially as the behaviour he was exhibiting before the accident was similar to some aspects of his behaviour after the accident. But although he was reported in April 1996 to be showing serious behavioural problems which included temper tantrums and aggression towards his mother, reports from his teacher prepared after the accident but covering his previous time at school were very encouraging. They acknowledged that the abuse had left scars on Martin, but they were said to be beginning to heal. He had become a much more cheerful child, and he had changed from being solitary to a good mixer. He was described as a child who was easy to like.
- All that bears out what Mrs Redhead had to say about Martin by the time of his accident, and the fact that a good friend of Martin then and his mother did not notice any problems with Martin's behaviour suggests that any bad behaviour had been confined to the home. On balance, I think it much more likely than not that Martin had emerged from the trauma of the sexual abuse by the time of his accident, and although some of his behaviour after the accident mirrored his behaviour in the months before and after the sexual abuse came to light, I find that it was attributable exclusively to the accident.
Pain, suffering and loss of amenities
- Martin's injuries have had a devastating effect on his life. How he copes with the future will depend to a great extent on the care regime which is put in place for him. The award which I propose to make for his future care should encourage him to lead a more independent life, from which he will, I hope, get real pleasure. Having said that, he is unlikely to achieve the sense of satisfaction and self-worth which goes with full-time working in the normal sense of the word, and it will be more difficult for him to establish a family of his own.
- In my opinion, Martin's injuries come within the upper end of the category of "moderate brain damage" in the latest edition (the 8th edition) of the guidelines published by the Judicial Studies Board for the assessment of general damages in personal injury cases. The upper end of that category, for which an award of between £87,500.00 and £127,500.00 is recommended, covers cases in which there is a moderate to severe intellectual deficit, a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no prospect of employment. The risk of epilepsy is relatively minimal, and as we shall see Martin has some prospect of employment. But his life expectancy has not been reduced, and he will have to live with his disabilities for that much longer than someone whose life has been made shorter. Bearing in mind that the quality of his life will be affected when he cuts loose from his mother, I have concluded that the award which truly reflects the changes which the accident has brought to his life is one of £110,000.00. That is the sum which I award for pain, suffering and loss of amenities.
Past losses
- Past care. Martin needs considerable care. That is not in dispute. Up to now, he has been cared for by his mother, with the help of support workers and the guidance of Ms Riley. The defendant's advisers were originally content to agree the claim put forward on Martin's behalf in the original schedule of damages for Mrs Redhead's care of him in the past, updated to reflect the passage of time since that schedule was prepared. That schedule was based on Mrs Redhead devoting an average of 2½ hours of care a day to Martin since the beginning of 2004. However, a later schedule dated 23 March 2006 prepared for the trial includes a claim for her care of Martin based on an average of 4Ό hours care a day and, so it is said, at increased hourly rates as well.
- The later schedule explained the increase in the number of hours as follows:
"
the claimant has (for the period until July 2004) taken more modest estimates of the time devoted to his care than the defendant's own expert suggests."
I have taken that to mean that the time which Mrs Redhead devoted to the care of Martin did not actually increase in July 2004. That new estimate of 4Ό hours a day represented a more accurate estimate of the time she had devoted to Martin in the recent past and was still devoting to him. 4Ό hours a day is not said to be an unreasonable number of hours for her to have cared for him. And contrary to the contention advanced on behalf of the defendant, the hourly rates for the years 2001-2004 have been reduced in the later schedule. I see no reason why the calculations set out in the later schedule should not be adopted, subject (a) to a reduction in the number of days for which the claim for 2004 was made (2004 is treated as having had 367 days in the later schedule), and (b) to the figures being updated to the date of the handing down of this judgment. I trust the parties will excuse me from leaving the calculations to them. In the unlikely event of agreement not being reached, the action can be restored before me.
- Another issue is whether a deduction should be made to reflect the fact that the care which Mrs Redhead provided was not that of a professional, and that the particular features which make commercial care more expensive travelling expenses, tax and national insurance do not apply to the gratuitous care which Mrs Redhead provided. An appropriate discount should be made if the starting point is the commercial valuation of the care provided. A typical discount will then be 25%. But the hourly rates in the later schedule are significantly less than the commercial rates applicable at the time by as much as 25% and a Housecroft deduction is therefore inappropriate.
- Past support. Since the trial, the cost of engaging the various support workers who have looked after Martin has been agreed, subject to three issues which still need to be addressed. The first arises because Martin's care was referred to the Social Services Department of Lancashire County Council ("Lancashire") by Martin's GP. On 20 July 2004, Lancashire approved the making of payments to Mrs Redhead to provide for Martin the kind of support which Johnny was giving him. The amount approved was £56.70 a week, based on 6 hours of support a week at £9.45 an hour. That was increased with effect from 1 October 2004 to £99.90 a week, based on 10 hours of support a week at £9.90 an hour. However, these payments were never made because of difficulties which Mrs Redhead experienced in setting up a bank account, and Lancashire has said that it is not prepared to backdate the arrears. The defendant's advisers contend that Martin's damages should be reduced by the amount of those arrears. The label attached to this argument was that Martin had failed to mitigate his loss, but in strict legal theory the issue is whether Martin's loss flows not from the defendant's negligence but from his mother's failure to act reasonably.
- The burden is on the defendant to show that it was unreasonable conduct on Mrs Redhead's part which caused the bank account not to be set up. This issue was not explored at all in the evidence, and it is impossible to tell from the documents whether any fault lies with Mrs Redhead. In these circumstances, no deduction should be made from the award on this account. Ms Riley's records admittedly show that by 24 August 2005 Martin's solicitor as his receiver had opened a separate bank account for Martin into which the payments could have been made. No explanation was given by Ms Riley or the solicitor for why that account was not used to receive them. But the opportunity to use that account for that purpose was not raised in the course of the hearing or in closing submissions. Since neither Ms Riley nor the solicitor were made aware of the point which was taken for the first time when a draft of this judgment was released to counsel for the correction of typing and any obvious errors they have not had an opportunity to deal with it, and it would not be right to hold it against Martin.
- The second issue relates to the cost of engaging Michael. He was recruited, and has been employed, by an agency, which charges £16.00 an hour plus VAT for providing his services. The defendant's advisers say that if Michael had been recruited directly by Ms Riley, Martin would have got the benefit of his services for much less. Michael himself is paid £8.50 an hour by the agency when he works normal hours, and slightly more when he works other hours. If Michael's employment were taken over by his receiver, the agency would be entitled to a fee equal to 15% of Michael's annualised gross starting salary, but it is said that in the long run that would still be less than what the agency currently receives. Accordingly, it is said that the amount for past support should be reduced to reflect that.
- I do not think that such a reduction would be appropriate. Ms Riley's evidence was and I have no reason to doubt it that she did not know of anyone who was prepared to take over when Johnny and his immediate replacement left. She had no alternative but to use an agency if Martin was not to be deprived of support for even longer than elapsed between the departure of Johnny's immediate replacement and Michael's arrival. In the circumstances, I do not think that it was unreasonable to use an agency to find a replacement worker. As it is, Michael has been employed by Martin's receiver since 5 June 2006, so since then less has been paid for Michael's services than before.
- The third issue relates to the possibility of Burnley College providing a support worker itself making it unnecessary for Martin to have had his own support worker while he was at college. The evidence on this topic was sketchy, but such evidence as there was suggested that an inclusive learning officer could have been provided to Martin by the college for 15 hours a week, and the funding for that could have come from the Learning and Skills Council. I do not think that this possibility should be factored into the equation. Martin needed help both at college and away from college, and the view was taken in my view, reasonably that what has been needed up to now was continuity of support, i.e. that one support worker should be engaged to help Martin at all times. That kind of support could not have been provided by an inclusive learning officer. It is true that earlier this year when it was thought that Martin would be staying at Burnley College for another two years, there was talk of funds being made available to enable the college to comply with the recent disability discrimination legislation, and that might produce funds for Michael to support Martin at college. But the college's budget was small, it had received no additional funds to cope with the requirements of the legislation, and Martin's needs would use up most of the budget, despite the fact that the college had very many disabled students. In any event, there was no evidence about this particular funding stream having been available before this year.
- For these reasons, I do not believe that the sum agreed for Martin's past support should be reduced, but the amount which has been agreed £27,082.39 will have to be (a) updated to the date when this judgment is handed down, and (b) reduced to take into account the £103.00 a week which Martin has been receiving from Lancashire for domiciliary care since 24 April 2006 (as to which see [54] below). I cannot do the calculation myself because I do not know how the agreed sum has been calculated.
- Past case management. It is not disputed that this was an appropriate case for a case manager to be appointed, and the sum of £13,480.00 was claimed as the cost of case management up to 23 March 2006, which was when the later schedule of damages was prepared up to. Although the defendant's advisers regarded this sum as a little excessive, and did not know how it had been calculated, they were prepared to agree it on the basis that it was a relatively modest sum. It will have to be updated to the date on which the judgment is handed down. I cannot do the calculation myself as I too was not told how the £13,480.00 had been calculated.
- Past travel expenses. Although the defendant's advisers think that the rate claimed per mile is on the high side, this sum is agreed at £1,347.00.
- Past holiday expenses. A claim was originally advanced on the basis that it cost more to take Martin on holiday than would otherwise have been the case because (a) quiet accommodation on the ground floor had to be found for him and (b) his disability resulted in increased holiday insurance premiums. There was no evidence to support this claim, and in the end this claim was not pressed.
Future losses
A. Loss of earnings
- There is no claim for past loss of earnings. That is presumably on the basis that Martin would still have been in full-time education now had his life not been interrupted by his accident. Mr Geoffrey Tattersall QC for the defendant did not suggest otherwise. I am prepared to go along with that assumption. Mrs Redhead struck me as the sort of woman who would have had some ambition for her children. I appreciate that the course which Martin completed this summer was the equivalent of GCSEs, but the fact that he intends to stay at college for another two years points to someone who wants to get on in life. Having said that, James left school at sixteen, and although he did a course in motor mechanics, for much of the time since then he has not been working (admittedly through illness) and he is currently unemployed.
- Assessing what Martin's career path would have been if the accident had not happened is not an exact science, but the probability, I think, is that he would have become an average earner on the labour market. That is what his performance at college suggests, as does such evidence as there is about his powers of reasoning. I do not think that that is an unrealistic assessment of what his employment prospects would have been. Of course, it would have taken a few years before Martin would have been achieving average earnings, but in my judgement he should be compensated on the basis that he would have completed his full-time education this summer, and started work at the beginning of September, earning 70% of the average net annual earnings now, rising by increases of 10% a year to the average net annual earnings in three years' time. The appropriate figures should be taken from the Annual Survey of Hours and Earnings for 2006 produced by the Office for National Statistics for all employee jobs if they have been published. If they have not, the 2005 figures should be used with an uplift of 2½% to reflect inflation. This approach is in line with that advanced by Mr Stephen Grime QC on Martin's behalf, but since Mr Grime's calculations did not reflect the few years which Martin would have been earning less than the average net annual workings, I leave it to the parties to calculate the multiplicand.
- I turn to the multiplier. The table in the Ogden Tables which most clearly reflects the age at which Martin would probably have stopped working is table 9, i.e. the table of multipliers for loss of earnings to pension age 65. For someone of Martin's age on the date of the handing down of this judgment, the multiplier is 26.92. But that will have to be discounted by such a percentage as reflects the many contingencies which might have befallen him: after all, there is the risk that illness, economic downturn or any of the other imponderables of life may have resulted in Martin stopping work much earlier than 65 or having lengthy periods of unemployment. The tables set out in section B of the explanatory notes to the Ogden Tables represent a more scientific basis for determining what that discount should be. I bear in mind that Mr Grime acknowledged that a reduction was appropriate for employees who are likely to be working in the North West of England, and but for the question of whether Martin has a residual earning capacity, the appropriate discount on the multiplier would have been 4%.
- Despite his significant cognitive disabilities, I have concluded that Martin has a residual earning capacity. Mr Tattersall rightly conceded that Martin's future employment prospects are seriously compromised. But Mrs Redhead contemplates some form of sheltered employment for Martin, and I can see him performing administrative or clerical work in a supportive environment, perhaps using a computer where he has some skills. Indeed, he calls himself "a computer nerd". It would not be right to rule out Martin's prospects of remunerable employment altogether. It is extremely difficult to assess the extent to which the multiplier should be reduced to take this additional factor into account. But I have concluded that the multiplier of 26.92 should be discounted by 25% in all to reflect Martin's residual earning capacity and the imponderables of life. Accordingly, the multiplier in his case will be 20.19.
B. Future care
- Martin's care needs in the future depend on a number of imponderables: when he is likely to leave college, whether he is likely to be able to live on his own, and if so when, and what level of care he will require up to then and thereafter.
- Given his disabilities, Martin has done really well at college. Mrs Redhead is rightly very proud of him. He has shown that he can cope with his studies and hold his own with other students. In the light of that, and bearing in mind that he is not yet 19, and is therefore still relatively young, I think it more likely than not that he will remain at college for another two years. He will, I think, unquestionably continue to live at home while he remains at college. He would be far too young and disabled to face the world on his own even with carers. But there will inevitably come a time when he will cease living with his mother not only to give her a life of her own (and she is now talking of a career in social work) but also because that is what Martin himself wants. It is common ground that, given the appropriate level of care, Martin will be able at some time to live on his own. The question is when and what level of care is needed.
- I doubt if anyone would think it right for Martin to move into accommodation of his own as soon as he leaves college. The change from studying to working will itself be a challenge for him, and I am sure that both he and Mrs Redhead will want to make that transition as easy as possible. It would only complicate things if Martin were to move away from home at the same time. In any event, I suspect that he would not be ready for it, and a good few years should elapse after he leaves college and while he gets used to working before he leaves home. I therefore proceed on the basis that the probability is that Martin will not be leaving home until the summer of 2011.
- (i) While Martin remains at college. Before Martin started at college, both care experts assessed the level of support which Martin would need while he was at college at significantly less than the number of hours of support which his support workers have in fact been giving him. But the level of support which Martin has in fact had has worked well, and I think it should continue for the next couple of years. Having said that, the time has now come when the continuity of support which Martin gets is less important than it was, and I do not think that the support which Martin needs at college has to be provided by the same support worker who gives him support outside college. That means that if Martin can be provided with support at Accrington and Rossendale College, that support would make it unnecessary for the support worker he has when he is not at college to be with him when he is at college. On balance, I think it unlikely that Martin will be provided with such support. There is no evidence that such support workers can be provided by the college, but even if they can, there are likely to be a number of students who wish to have such support. If the experience of Burnley College is anything to go by, the number of inclusive learning officers available is reducing as a result of the learning support budget being trimmed, and the funding for support for disabled students is very limited. The claims of each applicant for such support will have to be assessed by the college, and the claims of those applicants who do not have other means of support will be prioritised. In view of the size of Martin's award even if it was reduced to reflect the possibility that he would be provided support by the college it is unlikely that Martin would be allocated such support.
- In my view, the number of hours of support which Martin will reasonably need are 7 hours a day on the days he goes to college and 5 hours a day on the days he does not. That will have to be based on a 58 week year to take into account public and annual holidays and sickness, and the hourly rate should be £8.50 an hour on weekdays and £9.50 an hour at weekends and on public holidays, because that mirrors what Michael is apparently currently receiving. I say "apparently" because although the written statement of the terms of Michael's employment by the receiver refers to him as entitled to £12.50 an hour at weekends and on public holidays, Mr Grime's calculations were based on £9.50 an hour. I proceed on the basis that the college terms amount to 30 weeks in the year, and that Martin will be going to college 4 days a week.
- The annualised calculation of these costs from the date of the handing down of this judgment until 30 June 2008 which I take to be the date when Martin will leave college is therefore as follows:
| Support during term time: 33 hours a week at £8.50 an hour (Monday to Friday) x 30 weeks |
£8,415.00 |
| Support during term time: 10 hours a week at £9.50 an hour (Saturdays and Sundays) x 30 weeks |
£2,850.00 |
| Support outside term time: 25 hours a week at £8.50 an hour (Monday to Friday) x 28 weeks |
£5,950.00 |
| Support outside term time: 10 hours a week at £9.50 an hour (Saturdays and Sundays) x 28 weeks |
£2,660.00 |
| |
£19,875.00 |
- There are a number of costs associated with the provision of this care:
- CRB checks. Checks will have to be made with the Criminal Records Bureau on each new support worker. Two such checks a year are likely at £33.00 for each check. £66.00
- Recruitment costs. I think it more likely than not that support workers will in the future be engaged through advertisement rather than through an agency. After all, Mr Grime's schedule in his final submissions bases the hourly rate for support workers on what they would be paid for their services rather than what an agency would charge. Compiling job descriptions, considering curricula vitae and interviewing possible candidates are all part of Ms Riley's case management, but advertising costs will have to be paid for. Two such recruitment exercises are likely every year, and I assess the advertising costs at £125.00 for each exercise. £250.00
- Payroll costs. The cost of maintaining a payroll and administering PAYE has to be taken into account. I assess that cost at £250.00 a year. £250.00
Employer liability insurance. The premiums payable for employer's liability insurance are assessed at £84.00 a year. £84.00
- Employer's national insurance contributions. These amount to 12.8% of the employee's weekly earnings over £97.00. Since I think it likely that two support workers will be engaged each year, the calculation is 2 x 12.8% of ((£19,875.00 χ 2) (£97.00 x 52)). £1,252.74
- Training. A support worker may have to be trained in how to do the job. Whether he or she needs to be trained depends on what their previous experience is. The best estimate which can be made is that one support worker a year is likely to need training, and I assess the cost of training him or her at £300.00 in accordance with the schedule attached to Ms Riley's first witness statement. £300.00
- Expenses. The support worker will have to be reimbursed his or her expenses in looking after Martin for example, travelling expenses when they go out together and meals when with Martin. I assess their expenses at £28.00 a week. One of them will also have to accompany Martin when Martin goes on holiday. I assess that expense at £400.00 a year. £1,856.00
- Car insurance. This head of loss is claimed on the basis that the support worker will have to be insured for driving with comprehensive cover rather than with cover for third party risks only. I see no basis for not allowing this head of loss, as I regard it as an additional item of expenditure which is both reasonable and likely to be incurred. The difference in premium is estimated to be £400.00, and bearing in mind that the support worker is likely to be young and the premium correspondingly large, I do not regard this as excessive. £400.00
Total: £4,458.74
This list does not include the cost of supervising the work of the support worker. Although it is recommended that a support worker be supervised at regular intervals by social care workers, I do not think that it will happen with Martin's social workers. It has not happened in the past.
- On top of this commercial support, Martin will still need to receive care from his mother. I rather think that the level of care she needs to provide to Martin will be a little less from now on than it has been in the past. She wants Martin to be as independent as possible, and I think that the level of care from her which Martin will reasonably need over the next couple of years will be in the region of 3½ hours a day. That should be costed at £6.50 an hour which is less than the commercial rate by as much as 25% and for the reasons given in [21] above, a Housecroft deduction is inappropriate. The annual value of this care, from the date of the handing down of the judgment to 30 June 2008, is £8,303.75.
- (ii) After college and before living on his own. I do not see the level of care which Martin will reasonably need changing much between the time he leaves college in 2008 and going to live on his own in 2011. However, he will be getting such support as he needs while he is working in the sheltered employment which I think he is likely to get. I imagine that his working day will be shorter than while he is at college, and I therefore estimate that he will reasonably need 4 hours of support a day on weekdays and 5 hours a day at weekends, though I think it likely that Martin will only be working 45 weeks a year. The annualised calculation of these costs for each of the three years from 1 July 2008 to 30 June 2011 is therefore as follows:
| Support on weekdays (in weeks he is working): 20 hours a week at £8.50 an hour x 45 |
£7,650.00 |
| Support on weekdays (in weeks he is not working): 25 hours a week at £8.50 an hour x 13 |
£2,762.50 |
| Support at weekends: 10 hours a week at £9.50 an hour x 58 |
£5,510.00 |
| |
£15,922.50 |
The annual costs associated with the provision of this care will be the same as those set out in [41] above, save that the sum for employer's national insurance contributions will be £746.82. The calculation is 2 x 12.8% of ((£15,922.50 χ 2) (£97.00 x 52)). The total is £3,952.82
- Just as while Martin was at college, he will still need to receive some care from Mrs Redhead. I agree with both sides that she will be devoting less hours of care to Martin than before (though I recognise that Mr Grime's concession is based on a greater number of hours of commercial care than I have provided for). I think it likely that Mrs Redhead will still need to provide 2½ hours of care a day to Martin. This should be costed at £6.50 an hour without a Housecroft deduction. The annual value of this care, which covers the period from 1 July 2008 to 30 June 2011, is £5,931.25.
- (iii) When Martin lives on his own. The need for Martin to have continuing support and care when he leaves home and no longer has the inestimable advantage of the loving care which his mother has given him is obvious. One option is for him to live in a specialist support living complex, provided that he continues to receive sufficient support and care. Martin, however, is resolutely opposed to that. He does not accept that he needs special care, and he would find it almost impossible to share accommodation with others like him. He would only be happy living a life which appears to him at least to be as normal as possible. Although it may result in a measure of social isolation, the only real option in these circumstances is for Martin to live in his own flat with such care and support as he needs.
- One important issue which has divided the parties is whether Martin will need night care. Martin finds it hard to settle down at night. Because his sleep pattern is disturbed, he will frequently get up and check and then re-check whether the doors and windows are locked. Should there be some unforeseen occurrence or disturbance outside, Martin would find it hard to cope and find an appropriate solution. Since he does not adapt to change easily, he could respond aggressively and inappropriately to something unexpected. On balance, I believe that the risks are too great for Martin to be left on his own, and his reasonable needs will include sleep-in care at night.
- But the critical issue which divides the parties is the level of support which Martin will need otherwise than at night. I do not think that Martin will need 24 hours of support, but in addition to sleep-in care, he will need support for much of the time during the day. He should not be left alone for more than an hour or so at a time. At present, I see him as reasonably needing 8 hours of support a day on those days when he is engaged in sheltered employment and 10 hours of support a day when he is not. This is more support a day than he will be getting in the years he lives at home after he has left college, even when one takes into account the care provided by Mrs Redhead, but there is a significant difference between Mrs Redhead being in the house and able to come to Martin's help if needed, and providing him with care and support. This level of care is likely to require a third support worker, and one of the support workers will have to act as a team leader to organise their rotas, to assess Martin's needs for the day in question and to do his paperwork for him.
- If the annual cost of this care is assessed using the same methodology as the care which Martin will need before he leaves home, the calculation is as follows:
| Support on weekdays (in weeks he is working): 40 hours a week at £8.50 an hour x 45 |
£15,300.00 |
| Support on weekdays (in weeks he is not working): 50 hours a week x £8.50 an hour x 13 |
£5,525.00 |
| Support at weekends: 20 hours a week at £9.50 an hour x 58 |
£11,020.00 |
| Care at night: 7 nights a week at £50.00 a night x 58 |
£20,300.00 |
| Team leader: 35 hours a week at an additional £2.00 an hour x 58 |
£4,060.00 |
| |
£56,205.00 |
Although it was argued that the cost of care might be cheaper if it was provided by an agency offering a package of care on a weekly basis, the evidence about such a package related to 24 hour care. In any event, I was not persuaded that the cost of care which Martin will need can be provided by an agency on a weekly basis any more cheaply than it can be provided by engaging individual support workers.
- The costs associated with the provision of this care will be:
- CRB checks. I estimate 3 such checks a year at £33.00 for each check. £99.00
- Recruitment costs. I think that 3 recruitment exercises are likely every year at £125.00 for each exercise. £375.00
- Payroll costs. These are likely to remain at £250.00 a year as before.
£250.00
- Employer's liability insurance. The premiums are likely to remain at £84.00 a year as before. £84.00
- Employer's national insurance contributions. Since three support workers will be engaged each year, the calculation is 3 x 12.8% of ((£56,205 χ 3) (£97.00 x 52)) £5,257.34
- Training. I estimate that three support workers will need to be trained every 2 years, and the annual cost of training on the basis of £300.00 for each support worker is £450.00 £450.00
- Expenses. The expenses have to include not merely the expense of looking after Martin and accompanying him on holiday, but also the cost of the additional domestic items which the support workers will be using. I assess the expenses at £50.00 a week, with an additional £400.00 in respect of holidays £3,000.00
- Car insurance. The insurance premium is likely to remain at £400.00 a year. £400.00
Total: £9,915.34
- The multipliers. I turn to the multipliers. The appropriate table in the Ogden Tables is table 1. For someone of Martin's age at the date of the handing down of this judgment, the appropriate multiplier is 31.55. On this basis, I have used multipliers of
- 1.70 for the period from when the judgment is handed down to 30 June 2008 (period 1)
- 2.78 from 1 July 2008 to 30 June 2011 (period 2)
- 27.07 from 1 July 2011 (period 3).
These multipliers must be discounted by such a percentage as reflects the possibility that Martin's needs for care and support may decrease over the years. I do not think that there is any real possibility of that while Martin still lives at home, but I can see a time well in the future when he will reach a plateau with the result that less care (and possibly less support) may be required. That possibility justifies a discount of 20% on the multiplier for the period from 1 July 2011. Accordingly, and subject to the possibility of public funding for his care needs, that produces the following award for future care, which represents my view of what is required to meet Martin's reasonable needs:
- Period 1: 1.70 x (£19,875.00 + £4,458.74 + £8,303.75) £55,483.73
- Period : 2: 78 x (£15,922.50 + £3,952.82 + £5,931.25) £71,742.26
- Period 3: 80% of 27.07 x (£56,205.00 + £9,915.34) £1,431,902.08
Total: £1,559,128.07
- Public funding of domiciliary care. Section 29(1) of the National Assistance Act 1948, when read with section 2(1) of the Chronically Sick and Disabled Persons Act 1970, requires Lancashire to meet Martin's needs in respect of "the provision of practical assistance for [him] in his home", because he is "substantially and permanently handicapped by
injury". In order to meet Martin's needs for such domiciliary care, Lancashire was required, by section 47(1) of the National Health Service and Community Care Act 1990, to carry out an assessment of what Martin actually needs. Having completed that assessment, Lancashire could provide the appropriate domiciliary care either by providing such care itself or by making direct payments to Martin to enable him to pay for the care himself. As it is, in Martin's case Lancashire does not have to provide such domiciliary care itself. Instead, it is required to make direct payments to him to enable him to pay for the care himself. That is the effect of regs. 4(1) and (3) of the Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2003 (SI 762/2003) ("the 2003 Regulations"), made pursuant to section 57(1) of the Health and Social Care Act 2001.
- In deciding the level of those direct payments, the question arises as to the extent, if at all, to which Lancashire may, or is required to, take into account any award of damages which Martin receives. The answer lies in para. 5(2) of the 2003 Regulations, which requires Lancashire to determine what amount it is reasonably practicable for Martin to pay towards the securing of the domiciliary care he needs "having regard to" his means. In assessing Martin's means, Lancashire has to act in accordance with any guidance issued by the Secretary of State: see section 7 of the Local Authority Social Services Act 1970. The relevant guidance is to be found in a paper issued by the Department of Health in September 2003 entitled "Fairer Charging Policies for Home Care and other non-residential Social Services". The material parts of the relevant paragraphs in the paper read as follows:
- 57. Councils may take account of a user's savings or other capital in assessing their resources, but are not obliged to do so.
- 58. Savings may be taken into account to calculate a tariff income on the same basis as set out in the Charges for Residential Accommodation Guidance (CRAG).
- 77. It is a matter for councils to decide whether to levy a contribution to costs or to seek to recover full costs, where possible. Councils will need to consider inter alia whether to use the levels of charge to target subsidy at priority users or services and whether charging full costs for some users will create perverse financial incentives for them to enter residential care.
- Since Martin's damages are to be held in trust for him by the Court of Protection, the relevant provisions in CRAG are those which relate to an award of damages held in trust. Those provisions were considered by Tomlinson J in Freeman v Lockett [2006] EWHC 102(QB), which was also a case in which a claimant was receiving direct payments from the local authority for domiciliary care. At [22], he said:
"Paragraph 6.028 [of CRAG] appears to achieve the result that an award of damages in respect of personal injury which is held in trust is a capital asset which is to be disregarded in the assessment of means. Having regard to the provisions in the more directly relevant document 'Fairer Charging Policies for Home Care and other non-residential Social Services'
it is a moot point whether the provisions in CRAG which deal with income are intended to be applicable by incorporation into the domiciliary care regime. If they are, paragraphs 8.005 and 8.0015 appear to provide that income from any capital held in trust 'which is as a result of a personal injury' will be taken fully into account for [as] long as the capital is disregarded."
I agree with these comments. It is only if the provisions in CRAG have been transplanted into the domiciliary care regime by para. 58 of the September 2003 guidance, which is itself questionable, that Lancashire has to disregard the capital, but take the income into account, when deciding whether the direct payments which it would otherwise be required to make to Martin should be reduced to reflect his award of damages.
- Against that background, it is necessary to see what Lancashire has done in Martin's case. Earlier this year, it assessed his needs for domiciliary care. It determined that direct payments should be made to provide him with up to 10 hours of care a week. He has therefore been receiving £103.00 a week since 24 April 2006. When that assessment was made, Lancashire was aware that the making of an award of damages was imminent. That was not, of course, relevant when assessing what Martin's needs for domiciliary care were, but rightly or wrongly it was regarded as relevant by the officer who made the assessment when he was determining what direct payments should be made to Martin. The assessment form which he completed included the following comment:
"It needs to be noted that Martin is currently receiving 35 hours support. It is envisaged that 25 of these hours will be paid for from Martin's compensation award."
That suggests that the number of hours support for which direct payments were to be made was based by the assessor on the fact that other hours of support were going to be funded by the proceeds of this litigation. However, there is no evidence as to whether that approach was consistent with Lancashire's policy, or indeed whether Lancashire has a policy on the topic at all, or whether the position is to be reviewed when the size of Martin's award is known.
- The effect of reducing Martin's award to reflect Lancashire's obligation to meet his needs for domiciliary care would be to transfer part of the liability of the tortfeasor onto the State. That is unlikely to have been Parliament's intention, which was the provisional view expressed by Tomlinson J in Freeman. But Tomlinson J did not reach any final conclusion on that issue. Rather, he preferred to address the practical question whether direct payments were likely to be made to the claimant in the future when the size of her award was known. Tomlinson J had some evidence about the local authority's policy in that case, which suggested that at the time the local authority took into account a claimant's savings and other capital in determining whether the claimant should be asked to pay for the services he or she was to receive. But even then, Tomlinson J took the view that no deduction should be made from the award of damages to reflect the possibility that direct payments would continue to be made to the claimant. There was in his view no principled basis on which he could estimate what funding the claimant could reliably be expected to receive from the local authority over the rest of her life.
- For the reasons which Tomlinson J gave, I too see no principled basis on which it is possible to estimate what funding Martin could reliably be expected to receive from Lancashire over the rest of his life. Local authorities have to face many calls on their necessarily finite resources, and will often have to make difficult decisions about which applicants for benefits should be given priority. So when considering what direct payments to make to an applicant who has received a massive sum by way of an award of damages, it is difficult to imagine local authorities not taking that award into account. And even if the award is not at present regarded as eliminating the need to make direct payments altogether, it is impossible to tell how a particular local authority's policies on the topic may change in the future. Indeed, all of that applies with greater force to Martin's case. The courts have stressed the need for defendants to put before the court at the very least evidence of the local authority's current policy if they wish to argue that public funding of the cost of domiciliary care should reduce the award of damages. That has not been done in the present case. I have no idea what Lancashire's current policy on the topic is, let alone what might happen in the future.
- I have not overlooked what the Court of Appeal said in Sowden v Lodge [2005] 1 WLR 2129 about reducing an award of damages to reflect the likelihood that a local authority will discharge its duty, under section 21 of the National Assistance Act 1948, to make arrangements for the provision of residential accommodation. But for the reasons given by Tomlinson J at [39]-[41], I do not regard anything said in Sowden as intended to give guidance in a case such as the present. Accordingly, and in conformity with Tomlinson J's approach in Freeman, I have concluded that the award for Martin's future care should not be reduced to reflect the possibility that direct payments will continue to be made to him by Lancashire to defray the cost of the care he needs.
C. Other future losses
- Case management. Martin needs someone to plan and organise the care and support he needs just as much in the future as in the past. In these circumstances, it is not disputed that a case manager will continue to be needed. This head of loss has been costed by Ms Riley. I do not regard £70.00 an hour for the services of a case manager to be excessive, with any travelling time to be charged at half that rate. But the case manager's travel expenses should be absorbed by him or her as part of their hourly rate. The regime for Martin's care and support is already in place, and I do not see why additional hours of input by Ms Riley are necessary in the immediate future. I can see how the need to plan and organise a new regime for Martin will be necessary when he leaves college, and when he moves to a home of his own, but I do not think that even that will require a significantly greater input then from the case manager. I see the case manager's input over the years as amounting to 6 hours a month, with 2 hours a month travelling time. The annual cost is therefore £5,880.00, calculated as follows: (£70.00 x 6 x 12) + (£35.00 x 2 x 12). Applying the multiplier of 31.55, the award under this head of loss comes to £185,514.00.
- Assistive technology. The later schedule of Martin's loss included a claim for a multi-disciplinary assessment of Martin's needs costing £1,000.00, with annual reassessments at a cost of £100.00 each. It was conceded that there was no evidence to support this claim, and it has to be disallowed.
- Physiotherapy. There is no evidence that Martin has had any physiotherapy yet, but it is common ground that he will need physiotherapy from now on. It is not disputed that he needs one session a year at £45.00 a session until he reaches the age of 40, and 8 sessions a year from then on. In the light of table 28 of the Ogden Tables, the appropriate multiplier from the date of the handing down of this judgment until Martin reaches 40 is 16.43, and the appropriate multiplier from then on (bearing in mind that the appropriate multiplier for the rest of Martin's life is 31.55) is 15.12. The award under this head of loss is therefore £6,182.55, calculated as follows: (£45.00 x 16.43) + (£360.00 x 15.12).
- Other therapy. It is conceded that Martin will require water therapy costing £244.40 a year. There is no concession as to how long he will need that, and I doubt whether he will be prepared to go swimming regularly, and certainly not after the age of 30. Using table 28 of the Ogden Tables, I take a multiplier of 9.75, and the award under this head of loss is £2,382.90. However, I do not think that the claim for speech and language therapy should succeed. I know that a therapist suggested in 2001 that such therapy might help Martin to maintain his optimum speed of speaking with an increased range of intonation. But he has stopped receiving such therapy since then, because the view was taken that there was nothing more that the therapist could do for him to improve his speech and language. The claim for occupational therapy is also disallowed: I have not discerned any evidence from an expert in a relevant field that occupational therapy has been required since he left school.
- Equipment and other items of expenditure. It is conceded that the specialist equipment which Martin needs consists of a bath board and a modular button hook. It is also conceded that Martin will need additional heating. The sums conceded under these heads of loss are £749.56 and £3,790.20, and Mr Grime did not question that. Accordingly, those are the awards which I make. No other claims under this rubric were pressed.
- Travel and transport costs. These are highly speculative claims. Travel costs are claimed on the basis that there are some forms of public transport which Martin is unable to use. There was no evidence about that, and I do not think that his disabilities are such as to prevent him from using any means of public transport. Transport costs are claimed on the basis that he needs a more reliable car than he would have needed had he not been disabled. That presupposes that he would only have been able to afford an unreliable car if he had not been disabled. I do not accept that. In any event, Mr Grime was content not to press these claims if a sizeable award for loss of earnings was made. Since such an award is being made, the claims under this head of loss are accordingly disallowed.
- Home decoration, DIY and gardening. It is claimed on Martin's behalf that when he moves into his own home there will be a number of things which he will not be able to do without some help. They include decorating his home, gardening and doing the little jobs which need to be done. The evidence of his need for assistance of this kind is thin. The highest it is put by one of the care experts is that Martin "may need additional help with home decorating and gardening". That is not a sufficient evidential basis for making an award under this head of loss, especially as these are precisely the sort of things which Martin can do with his support workers. I therefore disallow this claim.
- Receivership costs. These have been agreed at £108,285.68.
Periodical payments
- The case was opened by Mr Grime on the basis that this was just the sort of case for Martin's damages to take the form of periodical payments. As is well known, section 2(8) of the Damages Act 1996 enables an order for periodical payments to be varied by reference to the retail prices index. The court may disapply section 2(8) or modify its effect in an appropriate case, and order an alternative form of indexation. Since earnings have historically increased faster than prices, and since Martin's award includes a significant element for the engagement of carers and support workers, the fear is that periodical payments linked to the retail prices index will result in Martin being under-compensated in the years to come. That led Mr Grime to contend that his preferred option for Martin was an order for periodical payments linked to the average earnings index instead of the retail prices index. But if the order for periodical payments was to be linked to the retail prices index, his preference then was for a conventional lump sum.
- By the time the trial recommenced in June, the Court of Appeal was due to consider shortly the circumstances in which it was appropriate to disapply, or modify the effect of, section 2(8). It was thought inappropriate for me in those circumstances to address the issue of periodical payments until the Court of Appeal had expressed its view on the topic, and I was asked to calculate Martin's damages for the time being as if a conventional lump sum was to be awarded. The case in which the Court of Appeal was to consider the indexation of periodical payments is Flora v Wakom (Heathrow) Ltd. [2006] EWCA Civ 1103, and judgment in that case was handed down on 28 July. It may be that the parties will agree what the impact of that decision should be on the question of periodical payments for Martin, but if agreement is not reached, the action will have to be restored before me for this issue to be addressed.
Conclusion
- Even if this is an appropriate case for the award of a conventional lump sum, there remain a few elements of the award which still have to be resolved. In these circumstances, it is not possible for me to make a global award, and in any event (a) the interest on it cannot be calculated and (b) the award will have to be discounted by 5% to reflect the agreed extent of the defendant's liability for Martin's injuries. Accordingly, I give the parties permission to restore the action before me in the event of any of the outstanding issues not being resolved. I wish to spare the parties the expense of having to attend court when the judgment is handed down, and I leave it to the parties to see if they can agree costs, assuming that it is not premature to address the issue of costs. If the parties think that the issue of costs should be addressed now, but cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any written representations which are made. If any party wishes to apply for permission to appeal, their solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing.
