Lord Justice Waller :
- On 22nd June 1989 the claimant/appellant (the claimant) was knocked down by a car driven by the defendant/respondent (the defendant) while walking down the middle of the road. At a trial which did not take place until November 2002 the defendant was held liable for the accident with the claimant being held responsible in contributory negligence as to 60%. That apportionment was varied by the Court of Appeal in July 2003 to 40%. As a result of the accident the claimant was very severely injured suffering serious brain damage. Following a trial in December 2003 and in accordance with a reserved judgement handed down on 19th December 2003 and a shorter extempore judgment of the same date Cooke J ordered the defendant to pay damages in the sum £1,499,268.13, and he refused permission to appeal.
- The most significant aspect of the damages award was the judge's assessment that £66,000 was the appropriate sum for the annual cost of the future Care Regime needed by the claimant. To that figure he applied a multiplier of 18.5 representing his assessment of the claimant's life expectation taking into account also the period that the claimant would spend in a rehabilitation unit. This figure involved accepting the expert evidence of Tessa Gough who gave evidence for the defendant to that of Maggie Sargent. It was assessed on the basis that the claimant's needs were for a continuation with the carers provided as at the time of trial by Social Services through an agency Care Watch but importantly also on the basis that (1) the regime would be enhanced; (2) it should be funded privately and (3) a saving could be made because of some likely improvement in the claimant as a result of the rehabilitation course, resulting in her needs at night being met by the less expensive sleep-in carer rather than an awake carer.
- He also found that with such a care regime, and in particular because there would be a need for a room for the sleep-in carer, the flat also supplied by Social Services would no longer be suitable, and that further accommodation would need to be purchased leading to an award of £215,265.
- Those advising the claimant applied for permission to appeal to the Court of Appeal. No attempt at this stage was made to disturb the judge's assessment of the care regime needed for the claimant. One Ground (Ground 11) asserted that £2000 should have been added to the £66,000 on the basis that a concession had been made by Tessa Gough that she should have included certain items in the Appendix to her report (Appendix D) which the judge had taken as the basis of his calculation. The other grounds sought to attack the judge's findings on 14 or possibly 15 discrete issues.
- Potter LJ granted permission on 12 grounds including Ground 11 on the basis that the grounds seemed to raise issues of principle.
- Those advising the defendant sought to respond by raising three grounds on which the assessment made by the judge should be reduced. They involved making an attack on the key finding that the need was for a privately funded care regime. These grounds sought to uphold the judge's conclusion that the present regime of carers would continue, but attacked the finding that the claimant needed that regime privately funded, and attacked the judge's finding that there was any necessity to move accommodation. The argument which they wished to put was that there was simply no need to disturb the present regime other than by a limited enhancement for which the defendant should pay. They were thus seeking to adopt Tessa Gough's primary position as costed in her Appendix A, which if successful would dramatically reduce the damages as assessed by the judge on the key issue from £1,354,500, to about £420,000, and would further reduce the award by £215,265.00, the sum awarded for the change in accommodation. The respondents also attacked a finding by the judge that they should be responsible for the costs of a rehabilitation course at the Kemsley Unit which, if successful, would have reduced the damages by a figure in the region of £150,000. Mance LJ granted the defendant permission to appeal on those grounds.
- This led those advising the claimant to look again at the judge's approach to his assessment of the amount to be awarded for care, and his assessment of damages generally. Following this review a skeleton argument was served in which notice was given of an intention to attempt to amend the notice of appeal to assert that the figure of £2000 in the original ground 11 to be added to the £66,000 should be increased to something in excess of £22,873. This would have increased the judge's award by some £400,000. From the skeleton it was clear that in part (as with the figure of £2000) this aspect, covered by a proposed Ground 11A to the notice of appeal, was to be argued by reference to points which could be made on the evidence, but which it was said the judge had failed to take into account, but in large measure by reference to points on Appendix D to Tessa Gough's report which had not been explored at the trial in any way at all. The skeleton also indicated that an application would be made to amend to challenge the award of general damages assessed by the judge at £165,000.
- At the commencement of the hearing of the appeal we had to deal with applications to amend the notice of appeal by the claimant as well as applications to renew grounds on which permission had been refused by Potter LJ. During this exercise the process it became apparent that those advising the defendant now appreciated that they had to concede Ground 1 of the appeal which related to the fact that the judge had deducted from past earnings a sum received in respect of income support, but Mr Faulks QC indicated that his clients might wish to allege that there had been a failure to take into account receipt of other benefits in the calculation of future losses for which they would need leave to amend their respondents' notice. He also indicated that he resisted Ground 11A, but the interchange with the court indicated that his own attitude to arguing the major ground in his respondents' notice, i.e. that the Appendix A calculation should be adopted, could be affected by the court's approach to Ground 11A.
- In any event we granted permission to the Appellant to amend and raise Ground 11A and we granted permission to raise certain grounds for which permission had been refused, Grounds 8 and 10, on the basis that they raised the same point of principle as Ground 9. We refused the application to renew Ground 7 on the basis that there was no evidence on which costs of speech therapy could be assessed, and no issue of principle was raised; and we refused permission in relation to Ground 16, relating to additional telephone calls to be made by the care team, on the basis that it was impossible to demonstrate any loss having regard to the lesser use of telephone which the claimant was likely to make and because no issue of principle was raised. We refused permission to amend to challenge the award of general damages because the figure was within the range which a judge could award and no issue of principle was raised.
- It is not necessary to go further into the details of the arguments which took place at this stage, but it is important to identify the issues which ultimately had to be considered on the appeal. It will I hope assist in that exercise if I do that by categories.
THE ISSUES IDENTIFIED
The costs of 12 weeks assessment at the Kemsley Unit for rehabilitation, and 9 months thereafter at the unit which the judge assessed as likely to occur
- This issue raised by the defendant in the respondent's notice was whether having been faced with a fait accompli at the beginning of the trial, of the claimant having been sent to Kemsley to be assessed, it was right for them to have to pay by way of damages for that assessment and for the projected 9 months of rehabilitation.
The cost of a care regime and accommodation
- This issue (as will by now be apparent) was of most significance in monetary terms. The first sub-issue (raised by the defendant in the respondent's notice) was whether the judge was right in finding that the claimant needed a privately funded regime as opposed to a top up to the regime being provided by Social Services, the latter being costed in Appendix A of Tessa Gough's report. This sub-issue involved two aspects, first whether the only requirement in addition to that which Social Security was already providing was a manager together with care for a four hour gap and second, whether, if this regime continued, that would make it unnecessary to consider whether the appellant would only need a sleep-in carer at night, the factor that influenced the judge in holding that there was a need for different accommodation. The second sub-issue was whether, if the judge was right that a privately funded care regime was necessary, he was right to take Miss Gough's Appendix D as he did with adjustments indicated in paragraph 55 of his judgment, or whether significantly greater adjustments were necessary. This is the issue raised by Grounds 11 and 11A of the appellant's notice of appeal as amended.
Benefits referred to in the second Schedule of the Social Security (Recovery of Benefits)Act 1997 "the 1997 Act"
- .Two benefits identified in the second Schedule of the 1997 Act are income support and mobility allowance. As regards income support, Mr Faulks made the concession that the judge should not have deducted £30,237.80 from the claimants past earnings. [He did not press any request to amend to assert that allowances should have been made in calculation of future losses]. That disposed of Ground 1. We were concerned as to whether the judge may have been misled by an apparent agreement on this aspect in the court below. Mr Leviseur stoutly refuted that suggestion, and we did not think it right to take up time exploring the position.
- As regards mobility allowance (Ground 5), the issue was whether the judge's finding that the claimant would be obliged to use that allowance to partake in the Mobility Scheme in order to provide herself with transport, which would provide her with a less costly transport than the scheme proposed by the claimant, infringed Section 17 of the 1997 Act.
- The determination of that issue is linked with a further issue (Ground 6) as to whether the judge was right to award the cost of insurance by reference to a driver over 25 rather than a driver from the age of 17.
Travelling expenses
- The judge deducted 15% from the claimant's past earnings as travelling expenses. He made no such deduction in respect of future earnings. The claimant argues that the deduction should not have been made relying on a passage in the speech of Lord Griffiths in Dews v The National Coal Board [1988]A.C.1 at 13.(Ground 2)
Individual items available on the NHS or from Social Services
- The judge found that certain items would be available from the NHS or Social Services, and that the claimant could not claim the cost of the same from the defendants. Potter LJ had granted permission for Ground 9 laundry; we granted permission in relation to Ground 8 chiropody and Ground 10 Tena pads, which raised the same issue.
Cigarettes
- The claimant had been a smoker before she was injured. In her injured state she began to smoke excessively, and to waste some of the cigarettes that she was contemplating smoking. The judge awarded a sum for cigarettes wasted in the past, but not for the cost in any increased number of cigarettes smoked, drawing the distinction it would seem between those from which she obtained a benefit and those she did not. He made no award for the future, relying again, possibly, on the benefit obtained if she did smoke more than prior to the accident, but also on the fact that it was in this area that rehabilitation at Kemsley was likely to assist.
Receiver
- The claimant is a patient subject to the Court of Protection. Mr Duffield, the solicitor who has acted for her throughout the proceedings, has been appointed by that Court as her receiver. Mr Duffield's evidence was that he would continue as a receiver and that his charge would be £200 per hour and the claim on that basis was for £280,710. The judge took an adverse view of Mr Duffield because of, among other matters, the delays in the conduct of this litigation, and took the view that the claimant's mother could perfectly well act as the receiver with such professional help as she needed. He awarded a sum of £30,000 to enable the mother to take professional advice. The issues are (1) whether the judge was right to contemplate that the mother or anyone other than a professional receiver would be appointed by the Court of Protection as receiver; (2) if a professional receiver was necessary whether the costs of such a receiver would be the £280,710 claimed or some lower figure.
Panel Brokers
- Quite separate from the issue relating to receivers was the issue as to whether the judge was right in his conclusion that Panel Brokers' fees which will be charged by the Court of Protection on advice and other aspects of dealing with the investment of funds awarded by way of damages.
Interest
- The judge took the view that there was 7 years of delay, which was the fault of those acting for the claimant, and refused to award interest for those 7 years. The claimant's advisers seek to reduce that period from 7 to 2 years.
GEWA Central Control Unit
- A Central Control Unit enables a disabled person to operate housing functions such as opening windows and opening doors remotely. The judge refused to award any sum for such a unit on the basis it was "unnecessary". The issue is whether that finding should be disturbed [Ground 3].
Cleaning
- Both experts were of the view that a sum should be allowed for extra cleaning. The judge took the view there was no need for separate cleaners since in the past the carers had done all that was necessary. The issue was whether the judge should have rejected the evidence of both experts. [Ground 4]
The Kemsley Unit Issue
- The claimant was injured in an accident on 22nd June 1989. She received various forms of therapy in the years following her accident, including intensive rehabilitation in Addenbrooks Hospital, between the 19th November 1990 and the 8th February 1991. Without any recommendation from any of her treating doctors and without any consultation with those representing the defendants, the claimant was admitted to the Kemsley Unit, a specialist unit for brain-damaged patients, so that she could be assessed as to her suitability for a rehabilitation course. This admission seems to have been under the auspices of the occupational therapist and her solicitor.
- On a pre-trial review of the case on the 24th November 2003 Mr Justice Collins was informed that the claimant had been admitted to the Kemsley Unit four days earlier. The defendants before Mr Justice Collins expressed concern as to whether the trial judge was going to be in a position to decide the case, having regard to the recent admission to the Kemsley Unit and the uncertain benefit of therapy there. Mr Justice Collins expressed anxiety about this himself.
- The trial duly commenced before Mr Justice Cooke on the 8th December 2003. There was an application before the trial judge that the judge should visit the Kemsley Unit and that provoked argument as to whether the claimant should be entitled to advance the claim for the costs of therapy at the Kemsley Unit, notwithstanding the fact that the twelve week assessment period had not been completed. Ultimately the judge ruled against the visit but allowed the claim to be advanced as requested on behalf of the claimant. That provoked an application for an adjournment on behalf of the defendant. The judge ruled against that application and made clear that he would simply have to do his best in assessing damages, notwithstanding the uncertainty of any benefit that might accrue for the claimant as a result of her time at Kemsley.
- The refusal of the judge to adjourn the trial was not appealed. As Mr Faulks explained to us it would have been an uphill task for him to persuade a Court of Appeal that the refusal to adjourn was a wrongful exercise of discretion by the judge.
- In the result the trial continued. The claimant invited the judge to award damages on the basis that there was likely to be an eighteen month in-patient stay at Kemsley following the assessment. On that basis the award sought by the claimant was in the sum on £221,738.
- By the end of the trial the position was as follows. First, Professor Wood had given evidence and clearly had approved of the move to admit the claimant to the Kemsley Unit for assessment. The judge recorded indeed that both he and Mr Paul Jamie, who was consulted by the defendant, had respectively agreed that there were no substantive differences in their observations or opinions with the regard to the claimant and that
26. ". . .They both believed that a period of behavioural rehabilitation was still worthwhile, because some of the claimant's current behaviour placed her at risk and appeared to have a manipulative element. In this respect they particularly had in mind the claimant's habit of dropping lighted cigarettes on the floor, likewise they were in agreement that, following such rehabilitation the claimant would require supervision and a care manager to co-ordinate her care . . ., but rehabilitation would make her easier to manage on a day-to-day basis and might slightly reduce her daytime care needs."
- Professor Wood considered that the claimant would be likely to spend a period of less than a year in the Kemsley Unit following the period of assessment. So far as benefit from that period of rehabilitation was concerned he accepted that there was no question of any significant improvement of the claimant's physical condition. As the judge recorded:-
27. ". . .The most that could be hoped for was improvement in her standing balance, which would enable her, during a day, to occasionally stand on one leg with the help of a frame. This would be morale boosting and of some benefit because of the unhealthy repercussions of remaining chair-bound or bed-bound. The brain damage suffered was irreversible. All that could now be hoped for in this respect was an improvement in behavioural conduct."
This led the judge to conclude:-
30. " . . Whilst there would be no dramatic improvements as a result of rehabilitation, there could be modest but significant improvement which would affect her daily life and the care awarded to her."
- In the light of the above findings the judge concluded as follows:-
35. "In the light of the clear evidence of Professor Wood, Mr Jamie, Dr Dick and Dr Sawle, I am in no doubt that it is appropriate for an assessment to be made of the claimant for her suitability for her behavioural rehabilitation course at the Kemsley Unit. The cost of that period of assessment is therefore recoverable. Equally if the assessment concludes that she is suitable for the rehabilitation course it would be in proper mitigation of damage for the claimant to undergo that course. Whilst it is unclear what the length of such a rehabilitation period would be, exactly what benefits will result if it is followed and there is no certainty as to the assessments to be made, I conclude that, on the balance of probabilities, she will prove suitable for such a course, and that, following the initial twelve week assessment, she will undergo a course lasting a further nine months."
- On the above basis he awarded the cost of the period of assessment and the cost of a period of nine months on a rehabilitation course. This attendance on the course he further reflected in his assessment of the number of years of care, which the claimant would need once she returned from that rehabilitation.
- I have some sympathy with the defendant's position, who assert that the Kemsley Unit was forced on his advisors at a time when they had no opportunity to say one way or another whether it was the right thing to do and when, because of the lateness of the referral, they would not have an opportunity to assess the benefit and any possible impact on the damages that the court might otherwise award. They say that the award of the cost of assessment and a period of rehabilitation against them is unfair if they cannot properly take into account the benefit to be attained there from. Sympathetic as I may be, it seems to me that the judge's approach cannot be criticised. He too was faced with the last-minute referral and he was of the view that it was important in the context of the history of the case that the trial should not be adjourned. He cannot be criticised for taking that decision. As the evidence developed it became clear that some period of assessment would always have been appropriate, and some period of rehabilitation would have been likely to take place as a result of that assessment. Furthermore he had clear evidence that there was likely to be a benefit at least in relation to the quality of life of the claimant by virtue of a period of rehabilitation. The evidence was indeed all one way, that there was likely to be that benefit, but it was equally likely that the claimant would still need a full-time care regime and it was only the quality of her life which would be improved.
- Indeed it is right to say by the end of the trial Mr Faulks, on behalf of the defendant, felt constrained to accept that the defendant should pay the cost of assessment. As it seems to me, that was a concession rightly made. The finding by the judge that the defendant should also pay for the period of nine months' rehabilitation, which conformed with the evidence of Professor Wood that that would be the likely period also seems to me to be unassailable. Thus I would dismiss this aspect of the appeal by the respondent.
Care Regime
- .This as indicated is the most significant aspect of the claim but having regard to the conclusion I have formed, it is possible to take the matter reasonably shortly. Before the judge the parties were at either end of the spectrum and therefore concentrated very little on any intermediate position. By the time of the trial the claimant was living in a flat which was accommodation supplied by the Social Services. She was being cared for by carers organised by Norwich Social Services through "Care Watch ", those carers providing care in turns from 11 am to 2pm; 2pm to 7 pm; 7pm to 11pm; and 11pm to 7 am (this night carer being an awake carer and not a sleep-in carer, and thus much more expensive than a sleep-in carer). On behalf of the claimant evidence was given by Maggie Sargent RGN and for the defendant Tessa Gough RGN. Following their joint meeting it was recorded as follows:-
"The two experts both agree that a case manager and carers will be necessary if she is to live in her own accommodation. The two experts do not agree rates of pay and Maggie Sargent has costed for a high rate of pay to attract experienced carers who are capable of managing her behaviour. Tessa Gough has costed on the rates paid to the carers presently caring for The claimant together with alternative cost to identify the local commercial rates of pay for the area." [Bundle D page 105]."
- Two calculations were placed before the court by Maggie Sargent, one of which assessed the cost of her higher paid carers with an awake night carer, and one of which provided for a sleep-in carer at night, on the basis that Kemsley would produce some improvement. She gave evidence to support her view and her costings.
- Tessa Gough gave evidence that in her view the present Care Watch regime would meet the claimant's needs, but as the joint statement indicated she accepted that a manager would be needed and that the four-hour gap should be filled. The present scheme was supplied by the Social Services and that led to the defendant's primary case being at all times that that scheme was what the claimant needed and all that should be funded privately was the cost of a manager and the "four hour gap". This was costed by Tessa Gough in her Appendix A.
- The alternative case was that if the Social Services were not to provide the care, then the equivalent should be provided privately with a manager and the four-hour gap filled. Her report stated that the present carers were paid £6.50 –
"This is prior to any increase they may receive in April 2003". . . . . "I include the carers' rate of pay at £6.50 per hour; there is no reason to pay any more than this rate which is above the local rate and the rate paid to carers who have been very committed to the claimant over the past 5 years."
The cost on this basis was set out in her appendix B. Her comment as to some possible increase in April 2003 was a little strange since although her original report was dated 29th April 2003, at which time she might not know of any suggested increase, the report before the judge was the updated version dated 10th October 2003, and one would have thought the question of increase or not would have been resolved.
- She too produced an alternative to Appendix B with a sleep-in carer as opposed to an awake carer, and that was set out in Appendix D. No advocate at the trial noted that two elements "training" and "entertainment", which were in Appendix B and which clearly should also have been in Appendix D, had been omitted from Appendix D. It is this error which was the subject of the original Ground 11 and the figure of £2000.
- Miss Gough also produced examples of costings of private carers through various local private agencies in Appendix C.
- The judge made the following findings.
49. . . ."I conclude on the evidence before me that there is great benefit in consistency of care support and the continuation of established good relationships between the claimant and her carers. I conclude also that, although the Social Services have made provision thus far, a more appropriate regime would be one established on more directive and structured lines; for all the reasons set out earlier in relation to the rehabilitation of the claimant and the need to perpetuate the disciplines and routines put into place. Thus, notwithstanding such authorities as Sowden v Lodge [2003] EWHC/588 QB, I take the view that a different structure of care is required and that this falls to be funded by the Defendant, not by Social Services.
. . . . . . . . . . .
52.The claimant's nursing expert costed 2 contrasting care regimes based on "unsuccessful rehabilitation" and "successful rehabilitation". The former included a second carer for 6 hours a day in addition to 24-hour care by one carer, with sleep-in care for 10 hours. The evidence of Prof Wood and others satisfied me that there was no need for the extra carer. The carer's rates charged were to be £8 per hour and £10 at weekends now, going up to £9 and £11 respectively in 2005. A sleep-in carer would be paid for 6 hours when present for 10 hours overnight.
53.The Defendant's nursing expert costed care on the basis of the rates paid to the Care Watch Agency carers of £6.50 per hour with the team leader at £7 per hour. A night awake carer would be paid for the full 10 hours overnight care whereas a sleep-in carer would be paid for 6 of those hours. Those rates were on Ms Gough's evidence above the local rates and above BNA Norwich rates for weekdays, but cheaper at weekends and public holidays.
54. It is generally accepted that a sleep-in carer is likely to be sufficient for the claimant. Although she sometimes awakes screaming in the night, because of pain and may need changing or assistance in turnover over to be more comfortable, there is no suggestion that there is any risk which requires an awake carer throughout the night. She shows no inclination to smoke at night so there is no enhanced fire risk. On Ms Gough's costings, the annual difference between the use of an awake carer and a sleep-in carer is of the order of £23,000. With a life expectancy of a further 26 years after rehabilitation, this differential amounts to almost £600,000.
55. Having examined the evidence of rates for appropriate care, I am satisfied that Ms Gough's figures are in essence to be accepted, with some small adjustments in respect of weekend and bank holiday care. I assess the appropriate costs for the employment of carers, including the team leader, ENIC, liability insurance, recruitment advertising, expenses, payroll and training at the annual sum of £66,000. I see no need for any separate cleaning as the carers have in the past done all that is necessary. Equally I could see no justification for the higher figures put forward by the claimant's experts for case management. £65 per hour is the figure to be used for this purpose. In the first year as the rehabilitation course draws towards its close and after it has finished (in about December 2004), to there will be additional costs involved in setting up the regime, which I assess at £4000, over and above the usual annual cost which I assess at £7000 p.a. with a greater requirement for hours spent that Ms Gough allows on a monthly basis."
- Those findings are only consistent with him using Miss Gough's figures in Appendix D with some modification for weekends and bank holidays and with some allowance for other items such as training and expenses.
- Mr Faulks' attack on the judge's rejection of Appendix A and a regime that was basically state funded was not pressed hard by him, and in my view rightly. That the claimant needed a regime on more "directive and structured lines" was a finding clearly open to the judge, and not a finding that it would be right to reconsider in the Court of Appeal.
- That leaves Grounds 11 and 11A. Mr de Wilde together with Mr Leviseur who followed on this aspect sought to persuade us first that the judge if he was finding that there should be a private regime should have found in favour of the regime costed by Tessa Gough in Appendix C. Indeed Mr de Wilde submitted that counsel, when they received the judge's judgment, thought that the judge was working off Tessa Gough's Appendix C. Apart from finding that difficult to understand in the light of the paragraphs above quoted, so far as the appeal is concerned it is accepted that after judgment the judge made clear he was working off Appendix D, and yet there was no suggestion in the original notice of appeal that he had in some way made the errors it is now suggested were made.
- In any event the submission to us included the following points. That the judge had made an error in failing to appreciate that the care would have to be carried out post rehabilitation by trained carers whose rates would be higher than the Care Watch rates; that Tessa Gough's rates were drafted as at April 2003 and did not allow for the increase in the uplift that the Social Services would have to pay to Care Watch as at April 2003 as allowed for in their contract of 5.3%; that entertainment had not been allowed for; that the weekend and bank holiday adjustments were too low; that no allowance had been made for consequential ENIC increases. Mr Leviseur, when he followed, concentrated on the entertainment and training expenses, the subject of the original Ground 11, and the increase which he submitted would have taken place in April 2003 and a further increase which he submitted would have been likely in April 2004, plus the consequential ENIC increases making, as he submitted, at least a 10% uplift in the figure of £66,000 chosen by the judge.
- The difficulty is that none of the points sought, now to be taken up, were taken up with Tessa Gough or made the subject of submissions to the judge. The question for example of whether the carers received any increase in April 2003 (as opposed to Care Watch itself) was not explored in evidence, and Mr Leviseur's suggestion that another rise would have occurred in 2004 is simply a submission without a scintilla of evidence to back it up. Two of the carers came and gave evidence and were available to be examined on the question, but they were not asked questions relevant to these points.
- The reality is that at the trial those advising the claimant concentrated their arguments on seeking to persuade the judge that he should adopt the private care regime of Maggie Sargent with the higher rates she recommended. They did not challenge Tessa Gough's figures if that case failed. That being so it is in my view too late to do so now particularly as Tessa Gough has had no opportunity, and the judge no opportunity, to consider the points. The only question which I have been a little concerned about is whether the mistake in Tessa Gough's Appendix D, where entertainment and training do seem to have been missed out, was noticed and whether the judge did intend to cover those items in his uplifted figure of £66,000. But I have concluded that the judge, having expressly mentioned items that he was including in the enhanced figure, and the matter again not having been taken up at the trial, it is now too late.
- I would therefore dismiss Grounds 11 and 11A.
Benefits referred to in Schedule 2 of the 1997 Act
- The statutory scheme provides for a tortfeasor to be able to obtain a certificate (a CRU) in relation to certain defined benefits received or to be received over a period of 5 years from the accident. The tortfeasor has then a liability to the Secretary of State for the amount of those benefits, and is entitled to deduct from any damages payable to the claimant the amount shown on the CRU. The scheme contemplates benefits during the relevant period being claimed and a certificate applying to those benefits during the same period. It does not contemplate there being a reduction against claims for future loss of mobility or future loss of earnings. [see the General Note under Schedule 2 in Halsbury's Statutes Volume 40 Social Security page 975]
- Schedule 2 is in the following form:-
SCHEDULE 2
CALCULATION OF COMPENSATION PAYMENT
(1)
Head of compensation |
(2)
Benefit |
1 Compensation for earnings lost
during the relevant period
2 Compensation for cost of care
incurred during the relevant period
3 Compensation for loss of mobility
during the relevant period |
. . .
Disablement pension payable under
Section 103 of the 1992 Act
Incapacity benefit
Income support
Invalidity pension and allowance
Jobseeker's allowance
Reduced earnings allowance
Severe disablement allowance
Sickness benefit
Statutory sick pay
Unemployability supplement
Unemployment benefit
Attendance allowance
Care component of disability living
allowance
Disablement pension increase payable under section 104 or 105 of the 1992 Act
Mobility allowance
Mobility component of disability living
allowance |
- There is a general provision Section 17 which provides as follows:-
"Benefits irrelevant to assessment of damages
In assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded."
This provision clearly applies both to the calculation of losses during the relevant period (subject of course to the Certification process), and to future losses.
- In this case for reasons which are unclear the defendants obtained from the Secretary of State a CRU which stated that during the relevant period the benefits received by the claimant were "nil". It followed that the defendants were unable to deduct any sums pursuant to that certificate from the damages to be awarded to the claimant.
- It became common ground at the trial however that the claimant had received benefits identified in Schedule 2 and had also received benefits not identified in Schedule 2. At the trial the assessment of the quantum of those benefits took time and the figures were only received from those acting for the claimant very late, indeed at the moment final speeches were beginning. All the benefits that she had received were deducted from her past losses including £30,237.80 being the income benefit that she had received. It is now accepted that Section 17 provides for such benefits not being taken into account in the assessment of damages and it is for that reason Mr Faulks has conceded Ground 1 of the claimant's appeal.
- It was also common ground that because any damages that the claimant received would be held by the Court of Protection, that her damages would be ring fenced, and the result would be that the claimant would continue to receive benefits. One of the benefits she would continue to receive would be the mobility allowance, a benefit identified in Schedule 2. It is the receipt of this allowance in the future which gives rise to a difficult point of construction on Section 17 (although it is fair to say I am not sure that the judge had his attention fully directed to it).
- The claimant's claim for damages included a claim for compensation for loss of mobility in the future, i.e. outside the five-year period. This was not a claim, accordingly, to which the provisions, which might have allowed for the obtaining of a CRU certificate, and a reduction of the damages by reference to that certificate, applied. As regards future loss of mobility both experts were of the view that the claimant should have a car adapted to deal with her disability. The choice was between the scheme preferred by Mrs Clarke-Wilson, and that preferred by Tessa Gough. Tessa Gough's involved taking advantage of a Motability Scheme. Such a scheme was only available to a person who was in receipt of a mobility allowance and who invested that mobility allowance in the scheme. If the claimant was obliged to invest her mobility allowance in the Motability Scheme that scheme was certainly cheaper than the scheme suggested by Mrs Clarke-Wilson. If she was not obliged to do so, then Mr Faulks has a second string to his bow, arguing that a "brand new" people carrier as recommended by Mrs Clark-Wilson was unnecessary, a second-hand vehicle would be sufficient. He submitted that the cost of a second-hand vehicle was in fact below the sums awarded by the judge, but accepted that the judge's award should not be disturbed.
- The first argument accordingly is about a duty to mitigate, and the question is whether a ruling that the claimant is obliged to use her mobility allowance and invest it in the Motability Scheme which, under the ordinary rules relating to mitigation, she would be obliged to do, is the correct approach, or whether Section 17 forbids the court so ruling.
- I have not found the answer to this question easy. At one stage I was attracted by a narrow construction of Section17 suggested by Mr Faulks. His submission was that since the effect of not insisting that the claimant should use the mobility allowance to invest in the Motability Scheme would be that she was over compensated, that supported a construction of section 17 that simply forbade direct deduction of the mobility allowance in any assessment of damages, but did not preclude insisting that the use of that allowance should be made in order to mitigate her loss. Indeed if one tested the matter by reference to the situation in which a claimant was claiming for loss of mobility during the five year period in that situation a defendant could obtain a CRU which would have enabled a deduction of the amount of the mobility allowance from the damages. Is there any reason why in order to ensure that a claimant is not over compensated a defendant should not also say that during the relevant period the claimant should use the mobility allowance the claimant will in fact receive from the state to mitigate their loss?
- I have ultimately concluded that a narrow construction would be inconsistent with the way the Section has been construed by the House of Lords in Wisely v John Fulton(Plumbers) Ltd[2000] 1 WLR 820. In that case the House of Lords ruled that so far as interest was concerned, Section 17 meant that it had to be calculated by reference to a figure which ignored the fact that benefits had been received and ignored the fact that the defendant was paying the benefits to the Secretary of State. That does not support a narrow construction of Section 17.
- Prima facie it seems to me that a rule as to mitigation can be said to be a rule relating to the assessment of damages. If that is so, on its language the section precludes an insistence that any of the benefits set out in schedule 2 to the 1997 Act should be used in any way to mitigate loss. It would only be if a strained, narrow construction was placed on the Section that such a conclusion would be avoided, and authority does not support the adoption of such a strained construction.
- In relation to the second string to Mr Faulks' bow, no oral argument was addressed to us by either side. It would however appear from the schedule on which the judge's findings on transport are recorded that this submission of Mr Faulks' was not considered by the judge as an option. Accordingly I would allow the appeal relating to this ground and substitute in relation to transport the figure put forward on behalf of the claimant.
Driver over 25 (Ground 6)
- This ground was connected to the previous ground by virtue of the fact that Tessa Gough gave oral evidence to the effect that the Motability Scheme included a named driver and one other and that she had costed the insurance as part of the Motability package recommended by her. Having rejected the Motability Scheme as the appropriate scheme by reference to which damages should be assessed, this approach of Tessa Gough can no longer be supported.
- However, it is not clear that the judge was making his finding on this aspect by reference to Tessa Gough's evidence because he found "that insurance is sufficient for one named driver over 25". This appears to be following a recommendation of Tessa Gough as to the allowance she was making as recorded in the joint statement in the following terms:-
"One named driver plus any driver over 25, as the insurance costs are less."
- Mrs Clark-Wilson, who gave evidence on behalf of the claimant on this aspect, was of the view that restricting insurance cover to over 25 restricted the recruitment of carers. She was of the view that it would be quite difficult to recruit carers and the pool needed to be as wide as possible.
- It seems likely that the judge took the view that it was unlikely that carers between the age of 17 and 25 would be looking after the claimant at all. The present members of the existing care team were over 25 and the serious condition of the claimant meant that she was likely to require experienced carers, i.e. carers who were not teenagers.
- In my view the judge's assessment on this aspect should not be disturbed. He was entitled to find that insurance for one named driver over 25 would supply the needs of the claimant. I would dismiss the appeal on this aspect.
Travelling expenses
- In assessing loss of past earnings the judge without any explanation simply deducted 15%for travelling expenses. Rather illogically, it could be said, he made no such deduction in relation to future earnings. It seems that one explanation for the difference is that in the defendants' submissions to him they suggested the deduction in relation to past earnings but did not suggest any deduction for the future. Little time unsurprisingly was spent on this item with other more significant issues taking up the parties concentration.
- Mr de Wilde and Mr Leviseur in their written submissions before us refer to the following passage in the speech of Lord Griffiths in the House of Lords in Dew v The National Coal Board [supra]:-
"Where ever a man lives he is likely to incur some travelling expenses to work which will be saved during his period of incapacity, and they are strictly expenses necessarily incurred for the purpose of earning his living. It would, however, be intolerable in every personal injury action to have an inquiry into travelling expenses to determine that part necessarily attributable to earning the wage and that part attributable to a chosen life-style. I know of no case in which travelling expenses to work have been deducted from a weekly wage, and although the point does not fall for decision, I do not encourage any insurer or employer to seek to do so. I can, however, envisage a case where travelling expenses loom as so large an element in the damage that further consideration of the question would be justified as, for example, in the case of a wealthy man who commuted daily by helicopter from the Channel Islands to London. I have only touched on the question of travelling expenses to show that in the field of damages for personal injury, principles must sometimes yield to common sense."
- The judge was not directed to this passage. However even if he had been the passage does not lay down any rule of law. If there were some rule of law that travelling expenses should not be deducted no doubt Mr de Wilde and his team would have protested more loudly at the suggestion in the defendant's submissions that there should be the deduction. What the passage seeks to prevent is inordinate time being spent on not very significant items in the context of an exercise which is attempting to assess damages in a broad way. I would not disturb the judge's finding.
Individual Items from NHS and Social Services
- These are not significant items in themselves. This may again have led to the judge not receiving the help he needed as to the correct approach. So far as the NHS is concerned the correct approach flows from Section 2(4) of the Law Reform (Personal Injuries) Act 1948 which provides :-
"In an action for damages for personal injuries . . . there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977 . . ."
- The following submissions in the skeleton of Mr de Wilde and Mr Leviseur are not I think in dispute:-
"The effect of this provision has been considered judicially a number of times. The authorities establish that the Act is to be regarded as preventing a tortfeasor from raising an argument that because facilities are available on the NHS it is unreasonable to allow the, higher, costs of obtaining goods and services privately.
(See Harris v Brights Asphalt Contractors Ltd. [1953] 1 Q.B. 617: Cunningham v Harrison [1973] Q.B. 942 and Lim Poh Choo v Camden [1080] AC 174)
The question thereafter becomes one of fact: who will provide the services. If the answer is that the claimant will purchase goods and services privately then it is no answer that the claimant could obtain them under the auspices of the N.H.S. more cheaply. If the facts establish that the claimant will obtain goods and services freely under the auspices of the N.H.S. then the cost of obtaining them privately will not be allowed.
The question is never "are these services available on the N.H.S." It can only be "are these services available on the N.H.S. and am I satisfied that they will actually be provided to the claimant: thus obviating the need to purchase them privately." These are not matters of theoretical concern to a Judge: in each case he must be satisfied that the claimant will actually get the relevant service from the N.H.S."
- So under the section the question is whether on balance of probabilities the claimant will obtain the services from the NHS. So far as the Social Services are concerned again there is no reason why the test should not be the same – on the balance of probabilities will the claimant obtain the services from the Social Services? The judge held that the claimant is a person who would when uninjured normally have obtained state benefits so far as possible. But he held she needs a private care regime. Once the judge has so held it must be for the defendants to show that the services such as laundry, Tena pads, and chiropody will be obtained on the NHS or from Social Services. It cannot be enough for the defendants to say, "there is no evidence that the services will not be available from the NHS or Social Services" which was the submission of Mr Faulks on behalf of the defendant made in relation to each of these items. We have had a note of the evidence on these items as agreed as between counsel and that was the only submission open to Mr Faulks, but in my view, on the basis that a private care regime was needed, it was for the defendant, if the judge was to find that a private care regime was to be what the claimant needed, to show that these kinds of items would have been available and obtained either on the NHS or from Social Services.
- As it seems to me the defendant's evidence came no where near to establishing that the three items would be available to the claimant under the regime favoured by the judge, and accordingly since the findings of the judge (in accordance with the submissions of the defendant) was simply that there was no evidence that the services would not be supplied by the NHS or the Social Services, those findings in my view cannot stand. I would allow the appeal on these items.
Cigarettes
- As indicated in defining the issues the judge awarded a sum for past wastage. He did not award any sum for the increase in smoking in the past. He did not award any sum for increased future smoking or any sum for wastage in the future.
- .There is something deeply unattractive about the notion that a claimant should recover damages to cover her increase in cigarette consumption either for the past and a fortiori for the future. Only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes, could the extra consumption be a head of damage. In this case the judge has awarded a sum for those cigarettes destroyed rather than smoked in the past, and Mr Faulks for the defendants sensibly does not seek to disturb that finding. But he submits first that the medical evidence does not support the theory that it was the brain injury which caused he claimant to increase her smoking habit, and second that so far as the future is concerned additionally it is hoped that a benefit will come out of the Kemsley rehabilitation for which the defendants are entitled to credit.
- Mr Leviseur referred us to the evidence of Prof Wood at 69/86/11-69/88/21 as to the consequences of Miss Eagle's head injury. He spoke about her injury restricting her to procedural learning and memory and the consequences of repetitive practice. He then said (69/88/11) "Her life revolves around . . . repetitive smoking because that is the habit she has got into, pulling the cigarettes out of an available packet". In my view that does not support the submission that it was the claimant's brain injury which left the claimant no choice but to increase her smoking habit. On this aspect I would not disturb the judge's award.
Receiver
- There is no issue that the defendant is liable to pay the costs of the receiver. The issue relates to whether a professional is needed as receiver and the costs.
As in other areas the judge was faced with the parties arguing for the extremes of their positions without alternatives nearer the medium. For the claimant the evidence was provided by Mr Duffield who had represented her throughout the litigation and with conspicuous dilitariness. He had in fact been appointed by the Court of Protection as her receiver in May 2003. He put in a statement which suggested what he contemplated he would be required to do as a receiver and the sort of fees he would charge.
- The defendants put in a statement from Mr Hyde, another litigation solicitor, who expressed the view that he could not see how Mr Duffield's assessment of what he would have to do or of the fees he would charge could be reasonable. He suggested that it should be possible for Mrs Giles, the claimant's mother, to carry out the task of receiver and for her son David to take over if it got too much for her. It seems that after David gave evidence it became clear that it would not be right to rely on him being able to take over from Mrs Giles. Mrs Giles, when she gave evidence, clearly showed herself to be competent with the way she had handled money on the claimant's behalf up until that time, but she was never actually asked whether she would be prepared to be the receiver. Mr Giles when he gave evidence stated that he would prefer it if Mrs Giles was not the receiver.
- Mr Duffield and Mr Hyde were called and cross-examined, and the judge held that Mr Duffield would not make an appropriate receiver and that his fees were excessive. He found that Mrs Giles would be able to do the job with professional help and he awarded what he thought was a generous sum of £30,000 to cover such professional help as she would need.
- When granting permission to appeal Potter LJ stated that notice should be given to the Court of Protection to enable submissions to be made on their behalf. Master Lush has responded to that invitation, and we have his submissions. He does not deal with panel brokers' fees (see below) and expresses views on the circumstances when a layman or a professional might be appointed a receiver and provides some form of general guidance on fees. Mr Faulks was concerned as to the procedure adopted on the basis that the parties, and in particular his client, had not been given any opportunity to make submissions as to the appropriateness of the Court of Protection making submissions at the stage they were sought. For the claimant Mr Leviseur made clear that her advisors did not make submissions to the Master and simply provided "the file" to him so as to enable him to acquaint him with the case.
- We were considerably helped by the submissions from Master Lush, but I do understand the anxiety of Mr Faulks. But it is right to point out that his instructing solicitors must have had notice of what was proposed long before any submissions were actually forthcoming from the Master, and were thus in a position to protest if they thought the direction inappropriate. It is I also think surprising that if the advisors for the claimant thought it right to supply a file to the Court of Protection, that they did not consult with the defendant's advisors as to, precisely what should be supplied. We are however where we are.
- I have great sympathy with the judge in relation to this aspect. Mr Duffield was a litigation solicitor acting for the claimant giving evidence which was intended to assist her in her damages claim. His charges if he were appointed a receiver would of course be the subject of taxation, but he was not disinterested in the fees that he hoped that he would be able to charge. He could not conceivably be bringing any independent mind to bear on the right course or on the appropriate fees. He was not someone who acted in the normal run of things as a receiver, although apparently he had been appointed a receiver within the previous twelve months in another case in which he was the instructing solicitor. As an instructing solicitor he had not acquitted himself with any glory, the case having taken some 14 years to come to trial on liability. The judge was clearly right in thinking that Mr Duffield was not the right person to be the receiver.
- On the other hand the defendants called Mr Hyde another litigation solicitor who expressed the view that Mr Duffield's charges were too high. He thought that Mrs Giles could cope, but was himself no expert in receiverships.
- The judge on the evidence before him took a course which one can fully understand. He had seen Mrs Giles give evidence. He formed a good view of her competence. He was quite clear that Mr Duffield was inappropriate, and he therefore thought that Mrs Giles would as a member of the family be able to take on the task with the aid of professional advice, and he awarded a sum that would enable her to do just that.
- We now have the submissions of Master Lush and detailed submissions as to the way in which the Court of Protection works. Mr de Wilde's primary submission was that Mr Duffield had been appointed the receiver and that thus the court should conclude that he will remain so and should adopt the assessment of fees of Mr Duffield. He appreciated that that submission might not find favour, and his secondary submission was that even if not Mr Duffield, a professional receiver should be appointed. Mrs Giles was he submitted now 58 and would be unlikely to be able to cope in the short term but certainly not in the long term. He relied on Master Lush's submissions that a professional receiver was normally appointed at least for the first two years. As to the fees he sought to take the indications from Master Lush's submissions which were "in excess of £3,500 plus VAT".
- Master Lush's view as to professional receiver or not were ultimately summarised in two paragraph as follows:-
"In my view it is not appropriate to say that the court will only appoint professional receivers in damages cases, nor that, if a professional receiver has been initially appointed, a lay receiver should not subsequently be appointed. I consider that the proper approach in general is that a professional receiver is desirable in acquired brain injury cases at least until the first or second year after the award. Such cases are likely to be more complex in the early stages. After this initial period, much will depend on whether there is a family member (or friend) who is both willing and suitable to act. If there is such a person able and suitable to act, he or she may employ a solicitor or accountant to deal with matters reasonably requiring professional assistance. If there is no such person willing to act, then no doubt it will be necessary for a professional receiver to remain in post (in the present case, either the current receiver or a new receiver appointed from the panel).
Should a panel receiver be appointed in the future, the ongoing costs would depend on the complexity of the case. A professional receiver's costs are subject to detailed assessment (if not agreed), and are likely to exceed £3,500 a year (plus VAT). The costs of a professional receiver vary widely from case to case, and it would be difficult to predict what they might be in the present case. An alternative to a receivership would be the creation of a trust. The Court of Protection usually insists on one of the trustees being a professional, whose costs for acting as trustee may not be significantly less than the costs of acting as receiver."
- Mr Faulks' submission was that Master Lush's submissions did not undermine the judge's findings. In essence he submitted that the submissions supported the judge in his view that the fees that Mr Duffield said he would charge as a receiver were exorbitant. The judge had awarded a generous sum to enable Mrs Giles to obtain professional advice; the figure would in fact cover a period of a professional receiver if that were thought necessary at the sort of costs which on taxation a receiver would be likely to obtain.
- I accept Mr Faulks' submission. What the court is trying to do is to assess the cost of a receivership when the question as to who should be the receiver and what charges they will make, is in the hand of the Court of Protection. The indications in Master Lush's submissions are that the fees charged or allowed on taxation are no where near the sort of figures which Mr Duffield was suggesting even if a professional receiver were appointed. There is I suspect little distinction between Mrs Giles properly supported by professionals and a professional receiver for a short period until Mrs Giles can take over with some professional support thereafter. In my view the figure assessed by the judge is not ungenerous as to the likely charges whichever route the Court of Protection takes. I would not disturb the judge's award on this aspect.
Panel Brokers
- Davis J in Page v Plymouth Hospital NHS Trust [2004] EWHC 1154 (QB) heard as a preliminary point the question whether a claimant who was not a patient and subject to the Court of Protection should be entitled to claim the fees that he or she would incur on investment advice on receipt of the damages. He analysed the decisions over the years which had dealt with this topic. The key authorities prior to the decision in the House of Lords Wells v Wells [1999] IAC 345 commenced with Francis v Bostock (November 8th 1985), where Russell J reasoned as follows:-
"The award I make is compensatory. The whole object of the exercise upon which I have embarked by the progress of multipliers and multiplicands is to achieve a figure which compensates the plaintiff one and for all. The calculation of that figure, so far as future economic loss is concerned, seeks to achieve such a sum as will enable the plaintiff to recover her annual economic loss for the rest of her life, whilst in the process dissipating the fund. The result is what should be achieved by the award itself.
Having acknowledged that the proposition however, the Court is not concerned with the disposal of the award once it is made. The plaintiff may spend it as she wishes. The defendant, in my judgment, should not be called upon to find further monies to assist the plaintiff in the proper administration of an award which, in itself, affords adequate compensation.
Furthermore in my view the employment of financial advisers and the like is a consequence of my award and not a consequence of negligence of the defendant. The claim fails on the ground of remoteness."
- That was to be contrasted with the reasoning in the later case of Anderson v Davis [1993] PIQR Q87 where Mr Rodger Bell QC as he then was, sitting as a High Court Judge reasoned as follows:-
"That judgment of Russell J., as he then was, has been followed in other cases and it is with some trepidation that I decided not to follow it here, for the following reasons. First, in a case like this, which is one where any wise plaintiff without financial or investment expertise would be bound to require skilled advice on the management of his fund, I can see no difference, in principle, between an expense which is necessary under the Rules of the Supreme Court or pursuant to the direction of the judge on the one hand, and an expense which is enforced by circumstance, or which will probably be enforced by circumstance, save that the Court of Protection fees are bound to be judged as reasonable expenses, whereas other management fees may or may not be judged to be reasonable, in all the circumstances.
Secondly, if the plaintiff has, in commonsense and good judgment, to spend management fees to use his fund to provide true compensation, that seems to me to be part of the economic loss which the Court is enabling him to recover. Put another way, if he does not take such management advice, at a cost to him, the reality is that the award will not compensate him as the Court intends it to do my making its award of damages."
- The course which Wells v Wells took through the courts is conveniently summarised by Davis J in paragraph 15 of his judgment:-
15. "In Wells v Wells (and two related cases) the first instance judges were prepared to depart from the traditional approach in fixing the appropriate multiplier. They adopted a discount rate by reference to ILGS. In essence, their reasoning was that (applying the fundamental principle) the question was not whether it would be prudent for a claimant to invest in equities but whether investment of the award in ILGS would achieve the necessary object of compensation with greater precision: and in their view investment in ILGS would do that. That necessarily connoted a significantly lower discount rate (and hence higher amount of award of damages) than under the traditional approach. The Court of Appeal reversed these decisions. The Court of Appeal held, among other things, that a claimant in such a case was not to be put in some separate category distinct from the ordinary prudent investor; that ordinary principles of prudent investment had not in this context become outmoded by reason of the introduction of ILGS: and that, applying the fundamental principle, the traditional approach (on the basis that a claimant would probably be advised to invest in a mixed portfolio) remained valid. That decision of the Court of Appeal was reversed by the House of Lords. (It may in passing be noted that at least two of the cases considered in Wells v Wells involved patients: but the House of Lords did not seem to draw any distinction in that regard). The House of Lords decided that a claimant recovering a substantial lump sum award in personal injury litigation was not to be regarded as in the same position as an ordinary prudent investor: and that the applicable discount rate was to be fixed by reference to ILGS. The House of Lords decided that, on that approach, the appropriate discount rate was to be 3%, to be of general application in the typical case but to await the fixing of a rate by the Lord Chancellor under his delegated powers conferred by the Damages Act 1996."
- He also summarises the prescription of discount rates by the Lord Chancellor under the Damages Act 1996 in paragraphs 16 – 19 as follows:-
16. "The Damages Act 1996 in the relevant respects provides as follows:
"(1) In determining the return to be expected from the investment of a sum awarded as damages for future pecuniary loss in an action for personal injury the courts shall, subject to and in accordance with rules of court made for the purposes of this section, take into account such rate of return (if any) as may from time to time be prescribed by an order made by the Lord Chancellor
Subsection (1) above shall not however prevent the court taking a different rate of return into account if any party to the proceedings shows that it is more appropriate in the case in question.
An order under subsection (1) above may prescribe different rates of return for different classes of case."
It had been made known that the Lord Chancellor was awaiting the outcome of Wells v Wells before making an order under s.1(1).
17. On the 25th June 2001 the Lord Chancellor (Lord Irvine of Lairg) made such an Order (SI 2001/2301), giving accompanying reasons. He fixed the discount rate at 2.5%. Very soon thereafter, objections were made that the Lord Chancellor had been provided with incorrect information as to the average gross redemption yield on ILGS for the three years up to June 2001. In consequence, the Lord Chancellor reconsidered the matter. Having done so, he maintained a discount rate of 2.5%, and declined to withdraw his previous Order of 15th June 2001. He gave Reasons dated 27th July 2001, expressly stating that he had considered the matter "completely afresh".
18. The Lord Chancellor concluded that he should set a single rate to cover all cases; should set a rate easy for parties and their lawyers to apply in practice, and to the nearest half percent, to be used in conjunction with the Ogden Tables; and should set a rate which should endure for the foreseeable future. He abjured an inclination to "tinker" with the rate to take account of transient shifts in market conditions. He made clear that he proposed to apply the fundamental principle, and stated (at page 2 of his Reasons) "It is accordingly unrealistic to require severely injured claimants to take even moderate risks when they invest their damages awards." He indicated that any approach to setting the discount rate must be "fairly broad-brush". He indicated that he did not consider that he was obliged to follow the basic reasoning of the House of Lords in Wells v Wells as to the averaging of gross redemption yields on ILGS in deciding on a rate of 3%. The Lord Chancellor concluded that the average gross redemption yield on ILGS before tax was 2.46% and that "the net average yield on ILGS, as adjusted to take account of tax, lay in the range between 2% and 2.5%". Given his decision to set the rate to the nearest half-percent, the discount rate was thus to be either 2.5% or 2.0%; and he stated that Wells v Wells did not require him to set one rate or the other. Stating that he had regard to the fundamental principle and to matters relevant to the setting of a discount rate which was just as between claimants and defendants as groups, he concluded that as at 25th June 2001 he should have set the rate at 2.5%.
19. In so concluding, the Lord Chancellor went on to state that he noted that the real rate of return to be expected from ILGS tended to be higher the lower the rate of inflation was assumed to be. He stated that he considered it reasonable to assume a rate of inflation for the reasonable future lower than 3% and that in turn "provides comfort that the discount rate set at 2.5% is reasonable."
- Davis J rejected the claim that investment costs should be included in the claim for damages and his reasons are compelling. The essence of that reasoning can be discerned from the following sentences in paragraph 49:-
49. "It is plain enough from the reasoning of the House of Lords in Wells v Wells, and it also, in my view, is implicit in the Lord Chancellor's Reasons, that investment costs are contemplated as arising in respect of the investment advice anticipated to be obtained by a claimant. But investment advice (on the Claimant's own approach) relates to the setting of the appropriate discount rate. Thus although the annual investment costs can be presented as an element of the multiplicand to which the appropriate multiplier is to be applied, in my judgment they are, for these purposes, in substance to be regarded as within the "territory" (to use an word employed in argument) of the applicable discount rate."
His conclusion included the following observation on the decision in this case at first instance:-
64. . . . . It also follows that I agree with the decision of Cooke J in Eagle v Chambers in disallowing panel brokers' fees: for my present view is that, for these purposes, there is no distinction to be drawn between Court of Protection cases, in this particular regard, and other cases."
- As recorded in the conclusion of Davis J, Cooke J in the instant case refused to award the Panel Brokers' fees, which the Court of Protection will be bound to charge the fund.
- Mr de Wilde did not make on a full frontal attack on Davis J's decision in so far as that decision related to non-patients. His attack was confined to a submission that a patient under the protection of the court had no choice about how the funds would be invested and would thus be charged the panel brokers fees in accordance with the prescribed rules whether they liked it or not, and that distinguished a patient from a non-patient. In the result the question whether Davis J was right in relation to non-patients has not been fully argued out, but Mr Faulks argued that Davis J was clearly right, and that there simply should not be a distinction between patients and non-patients.
- I have found Davis J's reasoning extremely convincing. Part of that reasoning comes to this. A defendant must pay by way of compensation damages assessed on the basis that the return on the money will be by way of investment in gilts even though the practice is to gain a higher return by investing more broadly. To order the defendant to pay the costs of taking the advice so as to enable the investment to be made more broadly so as to enable the claimant to recover more than that which he would have recovered if investments had been maintained in gilts is to make the defendant lose both on the swings and the roundabouts, and to provide the claimant with a head of damage which flows from a decision as to how to invest and not from the accident. A claimant is entitled to use his money as he likes, but if he wishes to increase the sum awarded and awarded on the most advantageous basis to the claimant, he must set off the fees charged against the gains made and not recover the fees from the defendants.
- All that is as true of a claimant who is a patient as it is of a claimant who is not a patient. Thus again in agreement with Davis J, my strong inclination is to feel that as a matter of principle different answers should not be reached depending on whether a claimant is a patient or not.
- .The argument for a distinction is that it is the accident which has made the claimant a patient; the patient has no choice as to how funds will be invested; the Court of Protection will invest more widely taking the advice of a panel of brokers, and it is by virtue of the rules that the fees of the Panel Brokers will be charged. I cannot accept that this distinction is valid. First there is in fact no compulsion on the Court of Protection to invest more widely. It happens to be its present policy but the policy is not "set in stone": see e.g. Lord Lloyd of Berwick in Wells v Wells at 369. Thus it is not by virtue of being a patient that the wider investment takes place, it is because of a decision to invest more widely which is no different from the decision taken by any person seriously injured (or as will be more likely) any competent adviser who will be looking after a fund on behalf of a seriously injured person. Second it seems to me to be wrong to equate the Court of Protection to some body independent of the patient or person injured. It is because the patient cannot take the decisions as to whether to invest more widely that a Court of Protection is required. That decision to invest more widely should not be looked at as any thing other than the decision of the patient if he or she were capable of making the same. Third the rules which give the court power to charge the panel brokers' fees are necessary, but they are actually no different from the fees that a non-patient will be charged if the non-patient decides to use brokers to make more of the funds that he has been awarded.
- .In my view the judge was right not to award the panel brokers fees which are likely to be charged by the Court of Protection while looking after the fund representing the damages and I would dismiss this ground of appeal
Interest
- .The judge rightly took the view that this case should have been tried by the end of 1996. The accident occurred on 22nd June 1989; no writ was issued until limitation had practically expired; nothing was done to move the action forward over many years. There was no explanation from Mr Duffield who had the conduct of the claim from the outset as to why there had been the delay. The judge took the view that 7 years of the delay was inexcusable and that accordingly in assessing interest the claimant was being kept out of her money not by any failure by the defendant to pay but by the lack of progress of the case by her advisers. As was pointed out by Croom-Johnson LJ in Spittle v Bunney [1988] 1WLR 847 at 859:-
"In Jefford v.Gee [1970] 2 QB 130, which first established the guidelines on which interest should be awarded in personal injury actions, it was explicitly stated by Lord Denning M.R. that interest should not be awarded as compensation for the damage done, but should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him. Where the case takes a long time to come on for trial because there has been unjustifiable delay by the plaintiff, he has been kept out of his money by his own default for part of the period. It is a "special reason" for not giving some of the interest. Birkitt v Hayes [1982] 1 W.L.R. 816 made that addition to the guidelines."
- .The judge undoubtedly took a tough view. That is clear from the fact that he went further even than the defendants in their submissions were asking him to go. But his logic is inescapable, and in truth Mr de Wilde's submission that two years was the appropriate deduction was a submission one must assume was being made on behalf of Mr Duffield's insurers rather than the claimant. Two years' interest one must assume was something the insurers would recompense the claimant for, and the question is whether the amount of recompense should be that which the judge decided i.e. seven years or some lesser sum.
- .The difficulty for Mr de Wilde on this issue is that there is no basis for saying the judge misdirected himself or came to a view which was clearly wrong. The logic of the judge's ruling was, as I have already said, impeccable. If (and it cannot be gainsaid because there is simply no explanation for the delay) there was a period of 7 years for which the claimant or her advisers were responsible then they were being kept out of their money not because the defendant refused to pay but by there own conduct. He submits that he cannot find any case where more than two years has been deducted, and he took us to a decision of Latham J (as he then was) Barry v Ablerex Construction (Midlands) Ltd [2000] P.I.Q.R. Q263, where the period of delay was 5 years and the judge deducted two years interest. But that is simply an example of the judge exercising his discretion in that case, and does not show that the judge in this case was misdirecting himself. I would dismiss this ground of appeal.
GEWA
- Sadly the claimant's injuries are such that she needs 24 hour care. Furthermore she probably does not have the capacity to decide for herself whether windows should be opened or not. It is true that Maggie Sargent's evidence that the claimant did need a central control unit was not challenged by Tessa Gough – her evidence was that she would not resist the provision of this unit if one was not available on the NHS. The judge is not bound to accept the evidence of experts, and it was open to him to take the view that this unit was unnecessary. I would dismiss the appeal on this aspect.
Cleaning
- .The expert evidence was consistent on both sides allowing for extra cleaning. In Tessa Gough's Appendix an allowance is made for that extra cleaning, but the judge has decided that the carers would do that cleaning. My difficulty in this instance is, although respecting the judge's right not to accept even the unanimous views of experts, I cannot find any evidence to support the view that the carers would in fact do all the necessary cleaning. Indeed Mr de Wilde referred us to a passage in the evidence which indicated that carers would not, for example, clean the oven. If this had been the only item in relation to which an appeal had been launched, I accept it is unlikely that this court would have contemplated interfering with the judge, but, it being an item which has had to be considered with many others, I consider that it is right to restore Tessa Gough's figures relating to extra cleaning, and would allow the appeal on this item.
Lord Justice Buxton :
- .I gratefully adopt the account of the case given by my Lord, and also the great majority of his conclusions. I add some words of my own only on the one issue upon which I have the misfortune to differ from him; and by way of comment upon one other issue.
Panel brokers' fees
- .The judge disallowed this head of claim because he thought that it was inconsistent with the decision of the House of Lords in Wells v Wells [1999] AC 345: since the multiplier is fixed according to the discount rate appropriate to ILGS, a defendant should not be able to charge for expenses incurred in investing the lump sum thus produced on a different basis. The same view is taken by Davis J in what was, if I may be permitted to say so, a detailed and helpful judgment in Page v Plymouth Hospitals NHS Trust [2004] EWHC 1154(QB), a non-patient case. As my Lord has pointed out in his § 98, we did not have the benefit of full argument on the judgment of Davis J. I am however content to assume that it was correct in respect of the case of non-patients that it addressed. I venture to differ from the judge's conclusion, following Davis J, because I consider that the special position in which a patient has been placed by the tortfeasor gives rise to special considerations in her case. But before indicating why that is so I need nonetheless to make some observations about the approach in a non-patient case.
- .The House of Lords decided Wells v Wells as it did because it considered that an injured plaintiff was not like an ordinary prudent investor, but was entitled to the greater security for the future provided by ILGS. It is the defendant who has put the plaintiff in the position of having to manage, now, a very large lump sum that must last for the rest of his life: rather than be like everyone else, and meet his expenses as they arise from income as it arises. That rationale was reinforced by the Lord Chancellor in his reasons for fixing the rate, cited by Davis J at his §46:
"It is accordingly unrealistic to require severely injured claimants to take even moderate risks when they invest their damages award"
- .The emphasis in that statement is upon what the claimant is required to do. To equiparate the injured claimant with the ordinary prudent investor, as this court had done in Wells v Wells, forced upon the claimant a hazard as to the eventual outturn of the court's lump sum award that, first, might undermine the process by which that award had been made; and, second, placed upon the claimant burdens that, if they were to be borne by anyone, should be borne by the defendant. The claimant was accordingly saved the cost of managing the lump sum in order to achieve the rate of return on which it had been predicated: investment in ILGS, although not without cost, would not require the active involvement of the prudent investor.
- .At the same time, however, the ordinary claimant, once he has money in hand, can use it as he wishes. Because what he does is a matter of choice, and not forced on him by the defendant or by the system, he cannot impose on the defendant expenses or losses arising from his use of the money: whether he indulges in investment on the stock exchange or investment on the race-track. But the patient is in a different position. Because of what the tortfeasor has done to him, he has no control over his affairs, but is in the hands of the Court of Protection. The Court of Protection's fees are an inescapable result of the severity of the injury. The brokers' fees are chargeable whatever their level of success. In other words, when a tortfeasor renders his victim a patient, he not only, as in any case of serious injury, imposes on the claimant the wholly unreal world of a single lump sum to provide for the whole of the rest of his life; but also deprives the claimant of the normal power to decide how that lump sum should be managed.
- .I quite understand the argument that attracts my Lord in his § 101, that the Court of Protection is simply the agent for the claimant, just as his broker would be the agent for a non-brain damaged claimant; and that in each case the defendant should not be charged with the cost of the agent trying to do better for the claimant than the ILGS return on the basis of which the lump sum of damages was calculated. But in the ordinary case the claimant chooses his agent. In the case of a patient, not only has he not chosen his agent, in the events that have occurred the need for and the identity of the agent have been brought about by, have been imposed on the patient by, the tortfeasor. In those circumstances, the tortfeasor should pay for what is not merely a foreseeable but in fact an inevitable cost of that agency.
Interest
- .I agree that the judge plainly had power in law to adjust the interest payment, and that we cannot interfere with his exercise of discretion as to the amounts deducted. I merely wish to observe that this case underlines the unsatisfactory nature of this area of the law.
- As Farquharson LJ put it in Corbett v Barking HA [1991] 2 QB at p446:
"The power to deprive a tardy litigant of interest when he is guilty of unjustifiable delay is an essential discipline"
This power exists, and is exercised, even if the litigant himself was not guilty of delay; or even, as a patient or infant (like the plaintiff in Corbett), was incapable of either expedition or delay. It is a machinery that belongs to the pre-Woolf era, when cases were allowed to drift on for years without any effective sanctions available to the court apart from the draconian remedy of strike-out (see per Lord Denning MR in Allen v McAlpine [1968] 2 QB at p 245). The addition of indiscriminate interventions ex post facto of the kind now under review was therefore perhaps understandable. But in a case where the defendant has suffered no loss through the delay (and in the present case we do not know whether or not that is so, because defendants are not required to demonstrate any loss before this sanction is imposed) deprivation of interest so far as the claimant is concerned only adds injury to the insult that she has already suffered because of the dilatoriness of her lawyers. Now that we have moved into the era of the CPR (and the present case very far predates that era) gross delays simply should not occur. But if they do, an opportunity should he taken in an appropriate case to reconsider this whole area of jurisprudence, not least by taking into account whether the defendant has used the machinery now available, in a culture that does not permit him simply to stand by, to progress the case or secure its dismissal.
- .That is for the future. For the present, the claimant's only recourse is against her solicitors. The severity of the judge's sanction demonstrates that he thought this to be a particularly serious case. It is rendered the worse by there having been absolutely no explanation of the delay, despite the same solicitor having had the conduct of the case throughout, and thus being fully informed of its progress. The claimant must be advised as to her rights in this matter. The judge's observations have no doubt been brought to the attention of the Master of the Court of Protection. If however the case has not been notified to the claimant's solicitors' liability insurers that must be done immediately. I would be disappointed if they did not take the terms of the judgment of Cooke J very seriously.
Lord Justice Scott Baker :
- .I have had the advantage of reading in draft the judgments of Waller and Buxton LJJ. On the one issue on which they differ, namely Panel Brokers' Fees, I am convinced by the reasoning of Waller LJ. Furthermore, it seems to me it would be most unsatisfactory for there to be a distinction between patients and non-patients for the assessment of damages in this regard. This question apart I agree with both judgments.
