Raper v Bowden [2016] TASSC 35

"9.244 The Particulars claims gratuitous care performed by Mr Raper for 3 hours per day from 4 April 2013 until 11 May 2013 at £16.70 per hour.

9.245 Mr Raper's evidence is that he would visit the Plaintiff between 2 and 3 pm in the afternoon and stay until 5.30 pm or 6.00 pm at night and on weekends he would attend her home between 10.00 am and 12.00 pm and stay for 3 or 4 hours, or longer if he went out with her.

9.246 Mr Raper gave evidence when at home with the Plaintiff he would sometimes sit with her, and watch a film or read to her. He stated he would hold her hand and she would know he was there when he was sitting with her.

9.247 Professor Ward's evidence is that Mr Raper spent no more than ½ to 1 hour every day with the Plaintiff and provided no hands-on care.

9.248 Mr Raper stated at T 4 that when he took the Plaintiff out, a carer was also in attendance, as was Mrs Raper. Mr Raper stated in cross-examination that the Plaintiff would be taken out more in summer than in winter.

9.249 Mr Raper's gave evidence at T 5 that he provided occasional assistance with personal hygiene and transfers.

9.250 In the Defendants' submission, the evidence establishes that any care that the Plaintiff received was minimal, on Mr Raper's own evidence. Further, the Defendants submit that a number of the activities that Mr Raper performed were indicative of a parent/child relationship rather than being gratuitous care.

9.251 Further, the nature of gratuitous care that Mr Raper may have provided (if any) should be calculated at the rates for a personal carer set out in Ms Kirby's schedule of costings at Ex P42 ...

9.253 On the basis of the evidence, the Defendants submit that at common law, gratuitous care by Mr Raper should be calculated as follows:

9.253.1 4/4/13 to 31/12/14 @ 3 hours per week @ £9.07 per hour = £2,472.22.

9.253.2 1/1/15 to 15/7/16 @ 3 hours per week @ £9.44 per hour = £2,273.70."

1. I do not accept the defendants' submissions. In my view the services provided by way of diversionary therapy, as well as the care in assisting with transfers, is compensable. As I have already noted it was and is reasonable to stimulate Ms Raper's senses. The evidence supports improvement in her ability to engage with her environment.
2. While conscious of Professor Ward's scepticism referred to earlier in these reasons I was impressed by Mr Raper's evidence taken on commission in the United Kingdom that Ms Raper appeared to him to differentiate between different movies that he would show her because she would look at the screen if she appeared interested in what was being shown but if she was not interested she would not look.
3. I allow the claim for three hours per day for 1,199 days at £11 per hour. The total is £39,567.

1. The plaintiff claims that her carer, Cherrie Orrell, has provided gratuitous services to her, including administrative support to the care team, the making of telephone calls and research into the plaintiff's care options of on average eight hours per week for the 18 months preceding the date of the trial of this action, and for a further eight weeks until the publication of these reasons for judgment on 15 July 2016. The plaintiff claims 86 weeks at eight hours per week, or 688 hours at £16.70 per hour. The total claimed is £11,489.60.
2. The defendants dispute this claim. They contend as follows:

"9.221 The Plaintiff claims gratuitous care provided by Ms Orrell for 8 hours per week for the 18 months preceding the trial to date, at a rate of £16.70 per hour. Ms Orrell's evidence was objected to by the Defendants when evidence on commission was taken, on the basis that it was not particularised.

9.222 The Particulars claims that Ms Orrell provided administrative support to the care team and made telephone calls and researched the Plaintiff's care options during the period claimed.

9.223 Ms Orrell is employed by Complete Care and is part of the Plaintiff's care team, whose costs are met by Chorley and South Ribble CCG on behalf of the NHS.

9.224 Ms Orrell gave evidence that she was paid by Mrs Raper for additional work. Ms Orrell put the time on her timesheet which was paid to her through Complete Care. The arrangement was for 5 hours a week, which commenced possibly 8 months ago, or a bit longer, and the time was billed to Mrs Raper.

9.225 Ms Orrell gave evidence that in addition to the extra 5 hours per week for which she was paid, she performed 8 hours per week of unpaid work, consisting of conferring, researching products, arranging appointments and ordering supplies etc. She also performed part of these tasks within her rostered hours.

9.226.1 Documentary evidence of payment for Ms Orrell's services, paid for by Mrs Raper is not in evidence and no allowance should be made for it.

9.226.2 The tasks which Ms Orrell says she undertook are matters that should fall into the area of responsibility of the case manager, insofar as making medical appointment arrangements are concerned. Researching products or ordering products, other than day to day medical supplies, is a matter for health professionals and the case manager. The ordering of medical and like products should be accommodated within shifts. The Defendants submit that no allowance should be made for any gratuitous care provided by Ms Orrell.

9.226.3 In any event, given the nature of the tasks performed, the Defendants submit market value is not £16.70 per hour, which exceeds the rates paid to Ms Orrell for her usual work. If anything, the appropriate rate is £8.98 per hour in accordance with Ms Kirby's costings at Ex P42."

1. I apprehend Ms Orrell's evidence to be that she performed these services over and above the extra five hours a week for which she was paid by the plaintiff and that it was only before "Elaine set up this arrangement", that is the arrangement to pay for an extra five hours per week, that Ms Orrell would try and perform during her rostered hours some of the tasks she now performs in the gratuitous eight hours per week.
2. I allow the claim at £11 per hour. The total is £7,568.
3. The total amount assessed for past gratuitous care is £224,397.

Whilst travelling in Australia the Plaintiff would have continued to work and rates of pay are claimed at $756 per week gross and $529 net of tax representing 100% of her wages with the Defendants. The Plaintiff would have taken the option of an extra year on her travel visa and would have returned home in August 2013 so that she could commence her teaching qualification.

The Plaintiff would have started her Post-Graduate Certificate in Education (PGCE) in September 2013 after finishing her travel. She would have commenced employment as a teacher on 1st September 2014 at the average gross annual salary of £27537.5 and annual net earnings of £21,892.70 or £421.00 pw.

The Plaintiff would have received a bursary during her PGCE year: £5,000.00

1. The defendants agree that Ms Raper would have received a bursary of £5,000 but otherwise dispute the claim as follows:

"9.8 The Defendants submit that the Plaintiff's past economic loss for notional employment with them should be calculated at no more than 3 months from the date of injury:

9.9 Given the lack of evidence about the Plaintiff's intentions or her prospective earnings, the Defendants submit that if any further allowance is to be made for economic loss while the Plaintiff was travelling in Australia after she had ceased employment with the Defendants, the following amount should be allowed:

9.10 The Plaintiff claims that she would have started her PGCE in September 2013 and would have commenced employment as a teacher in September 2014.

9.11 Mr Carter's report extracts a statement from the Plaintiff contained in her university project, which suggests that teaching was a career path that the Plaintiff was proposing to pursue, and that she was applying for a PGCE in art and design.

9.12 However, the Plaintiff has not led any evidence of what she had done to progress her PGCE application; what the application entailed; whether she had applied for it by 30 December 2011; and if she had, what the result was.

9.13 Further, the Defendants submit that the Plaintiff's 2:1 degree was not in high demand and the PGCE entry is competitive and it ought not be concluded that the Plaintiff would have been successful in her application for the PGCE in 2013.

9.14 If the Plaintiff did successfully complete teacher training by June 2014, Mr Carter stated that the course took 1 year, then she would have been required to undertake at least a term of work placement in order to be awarded the PGCE. The evidence of Mr Carter does not disclose whether the work placement is paid or unpaid, or by whom it is arranged. However, Mr Carter's evidence is that '...you may find somebody has actually finished PGSCE (sic) but then doesn't qualify as a teacher because they choose not to. They haven't got their 6 month work placement or 4 month.'

9.15 In the Defendants' submission, on the evidence of Mr Carter, the Plaintiff would not have become a qualified teacher any earlier than the beginning of 2015, and possibly later.

9.16 The Defendants submit that while the Plaintiff has a 2:1 degree, it was in a non-vocational discipline and assuming that she completed the PGCE, the Court should not accept that the Plaintiff would immediately find employment. Even if Mr Carter's evidence was accepted in respect of the employment rates for graduates of Leeds College, which the Defendants submit is not faculty-specific, that data is taken at 6 months post-graduation, which potentiates unemployment for up to 6 months. It is not clear whether the data is for employment in the graduates' chosen field or employment in any area not studied for.

9.17 The evidence of Dr Banks (Ex D4, Appendix 2) and accepted by Mr Carter (at T 5) is that in 2015, teacher pays rates changed to a new system of performance-based increments. The Defendants submit that the Plaintiff's starting salary would be £18,213 and if she commenced working in July 2015, she would not have acquired sufficient experience to have warranted an increment to the date of the trial.

9.18 The Defendants state that if the Court determines that the Plaintiff would have commenced work as a teacher prior to the date of hearing:

9.18.1 Mr Carter allows £4,000 for a bursary to which the Plaintiff would have been entitled. However, Dr Banks stated that the Plaintiff would have received a bursary of £5,000.00 and the Plaintiff claims that amount.

9.18.2 economic loss should be calculated from 1/7/15 - 15/7/16 (54 weeks, 2 days) x £350.25 = £19,013.57.

9.19 The Defendants claim a set off for an ESA of $146 x 13 weeks = $1,898 and thereafter at the rate of $218 per week and continuing for the future".

1. It is not appropriate that a set-off should be allowed in respect of the receipt by Ms Raper of Employment and Support Allowance Income (ESAI) benefits in the sum of $146 (sic) for 13 weeks and thereafter at the rate of $218 (sic) per week. Those amounts are recoverable by the Department of Works and Pensions.
2. The plaintiff made the following closing submissions in relation to past loss of earning capacity, which understandably flow over into the claim post judgment:

"The approach to assessment lost earning capacity in the case of an uncertain career path was set out by Porter J in Potts v Frost :

305 Evaluation of the worth of a loss of a capacity to earn, being the loss of a chance to earn, does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 per Heydon JA at 553 [71]. In the assessment process, it is necessary to take account of future or hypothetical events, and a court can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. 'The inquiry - the process of estimation and probabilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters': State of New South Wales v Moss (above) at 553 [72] referring to Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643. Accordingly, damages for financial loss caused by a diminution in a capacity to earn caused by injury is only an estimate, and often a very rough estimate, of the present value of the prospective loss. 'Ultimately the process must always be one of judgment rather than calculation': Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 413.

306 Whilst it is generally desirable for detailed evidence to be called as to what the plaintiff might have earned but for the injury, and what the plaintiff is likely to earn after it, there is support for the proposition that over-elaborate evidence is unhelpful, and that the task of assessing damages in this context should be kept as simple as possible: State of New South Wales v Moss (above) at 551 - 552 [66] - [68]; Cowra Shire Council v Trudgett [2004] NSWCA 9 at [21].

307 In Cowra Shire Council Palmer JA at [21] (Meagher and Hodgson JJA agreeing) noted the observations of Moffitt P in J K Kealley v James [1979] 1 NSWLR 723 at 734 - 735 that there are cases in which evidence of prospective earnings which it is claimed would have been achieved, may actually distract from, rather than aid in, the quantification of loss. Palmer JA said that 'This is especially so where the plaintiff is a young person who has a number of possible careers open at the time of the accident'. In a case involving a young child, Greg James J in Sullivan v GIO [2005] NSWSC 135 at [160] - [161], referred to that passage from Cowra Shire Council, and said that he was not called upon to make a finding as to whether the plaintiff was likely to become a particular professional but was 'called on to estimate, having regard to all the probabilities, what the extent of [the plaintiff's] loss, whatever he might have done in life, would probably be if expressed in money terms".

Holly had strong academic qualifications: a 2:1 university degree from the Leeds College of Arts in visual communication, specialising in photography . Statistically her qualifications placed her in the top 15% of graduates. Her earlier education was also strong, evidenced by her GCSE and A level results.

Holly had worked in various jobs at College and University. At University she worked for the Brothers of Charity, first as a volunteer and soon after as a paid casual employee where she worked with persons under disability. Miss Andrea Fairhurst, Holly's manager at the charity, gave evidence to the effect that she was keen to fast track Holly from volunteer to paid work and did so two months after Holly commenced work . In that employment Holly was also retained by the charity for two paid commissions for her skills as a photographer.

Ms Andrea Fairhurst described Holly in the following passage from the transcript of her evidence:

'Oh amazing. Yeah she was very natural, what we look for in support workers is somebody who's very natural with people with our client group and she took to it very quickly which is why we very quickly wanted to move her from her volunteer position to a paid position which was the casual work. At that time obviously she wasn't able to take any vacancies that come up within the organisation because of her full time studies but yeah we wanted to move her on to paid work quite quickly.'

At college Holly worked at a pub and for a wedding photographer. She self-published two 'coffee table' photography books. The quality of those works is self-evident.

She was regarded as having a strong work ethic, although she didn't share the same view.

The evidence of Andrea Fairhurst was that Holly was an amazing employee . Angela Fairhurst said Holly had high ambitions.

She obtained work with the defendants soon after her arrival in Australia. She was working at the time of the accident. Ms Bowden described her as hard working and good natured worker.

The reference in Ms Parry's report that Holly was struggling to find employment should be viewed as an anomaly. It was not put to Elaine Raper, the apparent source of that reference, that Holly had struggled and the suggestion she had is inconsistent with other evidence, in particular, the evidence of Andrea Fairhurst that Holly had worked up until the time she left for Australia.

How would Holly have deployed her earning capacity?

Mr Carter gave evidence that if he was giving Holly career advice he would have recommended she pursue a career as an Art Therapist.

In addition, Mr Carter and Mr Banks gave evidence that some persons employed in the public sector, be it as a teacher or other worker (such as an art therapist), earn additional income through hobbies or interests.

Holly's qualifications, history, interests and work ethic demonstrate a capacity to earn additional income using her skills as a photographer. During her under-graduate study she had deployed those skills for reward. Holly claims for her future lost earning capacity as a wedding photographer, in addition to her claim on the basis she would have been employed, within the public system, as an art therapist or teacher.

Both Mr Carter and Mr Banks noted that persons employed within the public sector can be drawn into the private sector, provided the financial incentive is sufficient to warrant relinquishing the continued benefit of the generous public sector pension. Holly had all the qualities to make her an attractive proposition for private sector employers. In that event, Holly's lost earning capacity would have exceeded that which is particularised.

Ultimately, Holly's qualities, listed above, demonstrate that her earning capacity could have been deployed across a diverse field of employment and the expression of her loss of that capacity should reflect that diversity and her potential to excel in whatever profession and interests she may have pursued."

1. I instruct myself in accordance with the observations of Porter J in Potts v Frost [2011] TASSC 55 set out above. In doing so, I do not find any of the defendants' criticisms of the plaintiff's approach to assessing her damages under this head of past loss as at all convincing. Perhaps some of those criticisms might be valid, but on the balance of probabilities Ms Raper has been shown as well able to have pursued the path predicated.
2. Ms Raper suffered damage to her capacity to carry on various careers. On the balance of probabilities I am well satisfied on the whole of the evidence that Ms Raper was a talented and conscientious young woman who would have been able to exercise her earning capacity as a public or private sector school teacher, either as a class room teacher, or an administrator.
3. Moreover, on the evidence of the employment consultant Mr Carter I am satisfied that Ms Raper was well placed to exercise her earning capacity as an art therapist if she chose. All of the relevant evidence strongly indicates that Ms Raper had the capacity to go as far as it was possible for a person to go in the teaching profession if she chose to apply herself and work towards achieving such a goal.
4. Additionally Ms Raper was obviously a talented photographer and was sought after to carry out paid professional work, even at such a young age and while still a student.
5. The evidence of Ms Raper's character, personality, ability and dedication were positively glowing.
6. As Porter J said in the passage from Potts v Frost set out above, it is necessary to take account of future or hypothetical events, and a court can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain.
7. The inquiry is therefore an imprecise and indeterminate one to be carried out within very broad parameters and must be one of judgment rather than calculation. This is particularly so where as in the present case, Ms Raper is a young woman who was still a student and plainly had a number of possible careers open at the time of her accident.
8. Taking those considerations into account, and by reference only to the possible pathway mapped out in the particulars, which ignores any possibility of Ms Raper earning extra income from photography, but not ignoring the possible impediments Ms Raper might have encountered, some of which are pointed out in the defendants' submissions, I assess damages under this head at £65,000.

1. The plaintiff claims that after her period of travel until August 2013 she would have completed a one year full-time PGCE, and would then have commenced employment as a teacher in September 2014 working for three years at an average gross earnings of £27,537.50 per annum, or £421 per week net.
2. The plaintiff claims loss from 16 July 2016 to 30 August 2017 (58 weeks) at £421 per week. Discounted at 3% the claim is £24,060.
3. For the next seven years, from September 2017 to September 2024 the plaintiff claims she would have earned average gross earnings of £36,544.50, or net earnings of £28,017.46 per annum (£538.80 per week).The claim for this period, discounted at 3%, is £172,954.80
4. Thereafter, from September 2024 until her notional retirement at the age of 70 years, the plaintiff claims she would have earned at the average for an Upper Pay Range or Leading Practitioner Pay Range teacher. That is an annual gross figure of £46,944.50, or a net figure of £34,695 per annum (£667.20 per week). The claim for this period, discounted at 3%, is £585,034.
5. In addition, the plaintiff submits that Ms Raper would have pursued her hobby of photography in order to provide her with a second income (which it is said she would need at such modest teaching pay levels). The plaintiff submits that whilst it is accepted that this income source is far more difficult to assess with any precision, it is a loss upon which I will have to make findings based on all the evidence.
6. The plaintiff claims that the following information in respect of photographers in England, working on a part-time basis is relevant.

"(i) Locally to the Plaintiff a photographer might charge between £695 and £1,950 for a wedding.

(ii) The recommended daily rate (as recommended by the Association of Photographers) is £575 per day to £1,148 per day."

1. The plaintiff submits that, whilst it is recognised that the approaches to be taken to this second income are virtually infinite the following is suggested as a "compromise approach":

"The Plaintiff's loss of income as a photographer is based on the following assumptions:

(a) The Plaintiff would have been able to work as a photographer for 50 days p.a. (It will be noted that as a teacher her long summer holiday would have coincided with the busiest time of year for wedding photographers. In addition she would be able to work on weekends.)

(b) The average wedding fee is £1,322.50. The average 'daily' rate is £861.50. (The average of these two rates is £1,092.)

(c) To take into account expenses (albeit that in a digital age they are reduced) the suggested gross daily rate (after expenses) is £750.

(d) On this basis (and taxed as additional but self-employed Schedule D income) the gross annual income as a photographer would be £37,500. Net annual income = £29,071 or £559.05 pw.

NOTE: These are advanced as compromise figures. The Plaintiff has, for example, not advanced a claim for the loss of a chance that she would have achieved the status of a deputy or head teacher. It will also be noted that a career as an art therapist would result in higher income levels than those pleaded in this Schedule as a teacher. For the purposes of the photography income it is assumed that it would have taken 3 years to build up this work and 50% of the established income is assumed for the first 3 years.

The claim for the first three years (September 2014 - September 2017), although partly in the past has been discounted at 3% (149.8). The claim is based on earnings at £559.05 pw, divided by 2. The total is £41,873.00.

The claim for the remaining period (2017 - to retirement (42 years), discounted at 3% (1255 -51 = 1204 deferred) is £673,096.00

9.20 The Defendants dispute that there is any persuasive evidence that the Plaintiff would have become an art therapist but for injury. In the event that she intended to become an art therapist, the Plaintiff would have been required to complete a 2 year full time or 3 year part time post-graduate course and there is no evidence of enquiry by her to institutions or of any applications being made.

9.21 Further, on the Plaintiff's case as set out in the Particulars, she would have commenced employment as a teacher in September 2014, and there is no reconciliation of how she would have progressed in her career as a teacher whilst studying at post-graduate level, in order to become an art therapist. Mr Carter agreed in evidence that the training for art therapy was more difficult to get into than teaching. The Defendants submit that the evidence militates against the Plaintiff pursuing a career as an art therapist.

9.22 The Particulars claim that but for injury, the Plaintiff's career path as a teacher would have resulted in earnings as follows:

9.22.1 three years at £27,537.50 gross net per annum;

9.22.3 thereafter at £34,695 net per annum (on the basis of an average of the upper pay range or a leading practitioner pay range to a notional retirement age of 70 years.

9.23 The Plaintiff claims that but for injury she would have worked as a photographer, and was capable of making a net annual income of £29,071.

9.24 As demonstrated by the evidence of both Mr Carter and Dr Banks in 2015 the manner in which career progression as a teacher is measured and the resultant increase in remuneration changed to a merit-based system of appraisal, instead of an automatic yearly increments.

9.25 Mr Carter stated in evidence that the merit-based system was fairly new and a teacher would expect to progress every two years.

9.26.1 that if a teacher did not perform, s/he would not progress (at T 5);

9.26.2 the number of teachers who become deputy head teachers and head teachers was low (at T 5);

9.26.3 teachers had additional preparation and curricular responsibilities and extra-curricular activities (at T 7);

9.26.4 extra-curricular school activities would take up personal time (at T 8); and

9.26.5 the Plaintiff was more likely to pursue photography as a hobby and take photographs of weddings and the weekend (at T 8).

9.27 Mr Carter stated that when reaching the upper pay scale, teachers would generally decide whether to proceed into a managerial route and that decision would generally occur when a teacher was in their late 30s.

9.28 There is no independent evidence that the Plaintiff would have continued to work until age 70, as asserted in Mr Carter's report.

9.29 Dr Banks' evidence is that the Plaintiff would have been entitled to a teachers pension at age 65, and as the state pension age was 68, she may have worked until that age, but most female teachers had generally retired by the age of 65.

9.30 The Defendants submit that the Plaintiff would have retired from teaching at the age of 65.

9.31 The merit based system has been conceded to be new and it is submitted that the manner in which it will operate in practice is unclear. The Defendants submit that the Plaintiff's life expectancy is 11.4 years from present and on the best scenario, 15 years from present. The Defendants submit that the Plaintiff would have followed a teaching career and would have earned no more than an average of the main pay scale per annum (£18,213 net and £25,412 net = £21,812.50 net).

9.32 The Defendants submit that damages for future economic loss should be calculated as follows:

9.33.1 £419.47 x 504.9 x 15% = £180,021.84 (3% multiplier).

9.33.2 £419.47 x 456.0 x 15% = £162,586.57 (5% multiplier).

9.34.1 £419.47 x 632.3 x 15% = £225,446.25 (3% multiplier).

9.34.2 £419.47 x 555.0 x 15% = £197,884.97 (5% multiplier).

9.35 The Defendants submit that the Plaintiff should not be awarded damages for loss of secondary income from photography. The evidence from Ms Fairhurst is that the Plaintiff has had only two commissions, which she believed were paid. There is no documentary evidence of actual payment; the amounts; or the deductions for expenditure. There is no evidence of earnings from photography that were included in any pre-injury taxation return. Ms Fairhurst's evidence is that the Plaintiff was inexperienced about the manner in which she could obtain photography work and asked for advice about invoicing. Neither of the Plaintiff's parents gave evidence that they were aware of the amount of the Plaintiff's earnings from photography.

9.36 The Defendants submit that the Court cannot be satisfied that the Plaintiff would have earned any income from photography and further, as there is no evidence of income earned, capital expenditure and outgoings, the Court cannot estimate what any notional income would have been, even if it were pursued, given the expert evidence regarding the demands of a teaching career."

1. In considering the defendants' submissions it is to be noted that the plaintiff's particularised claim is not based on her becoming an art therapist, and is not predicated upon her progressing beyond the pay scale level of a Leading Practitioner Pay Range Teacher. I repeat however that in adopting the approach considered appropriate by Porter J in Potts v Frost (above) my view is that all of the relevant evidence strongly indicates that Ms Raper had the capacity to go as far as it was possible for a person to go in the teaching profession if she chose to apply herself and work towards achieving such a goal.
2. It is true that Ms Raper's degree was only the equivalent of what would in Australia be second class honours and not first class honours, but her potential was obviously enormous. The UK degree classification is fail, a third, a 2:2, a 2:1 and a "first". As I understand Mr Carter's evidence almost all graduates obtain a 2:2, a 2:1 is "pretty impressive" and "very few get a first". Mr Carter estimated that Ms Raper was probably in the top 15% of graduates with her class of degree.
3. I do not doubt that Ms Raper could have become an art therapist or could have advanced beyond a Leading Practitioner Pay Range Teacher if she chose. The subject at hand for my judgment is teaching and photography and not theoretical physics or cosmology. That is not said flippantly.
4. I accept the defendants' submission that there is no evidence that Ms Raper would have worked until age 72. In my view it is most likely she would have worked until age 68 when she would have been entitled to her pension. She perhaps then may have even focussed on her hobby of photography to earn an income to supplement her pension.
5. I do not accept the defendants' submission that Ms Raper would not have earned any income at all from photography, but I am far from satisfied that she would have been likely to, or even able to work as a wedding photographer or similar on 50 days a year during her career as a teacher or similar.
6. Mr Carter's evidence as to the likelihood of Ms Raper carrying on two jobs was as follows:

"Well obviously it depends on the individual there are some people who thrive on having as many activities going as possible you'll need to decide whether Holly Raper was one of those. Generally it would be my professional opinion that if you are at the lower end so you're going home at more or less the end of the day then you put your efforts in your hobby or your other activity which in photography there's a capacity to earn some money from it. If you move up the scale so you take on greater responsibility at school then your point is absolutely right there's no space to do anything else. So you either stay at the bottom and do something else or you move up and there's no space to do anything else."

1. My impression is that Ms Raper's personality was such that she is not likely to have wanted to "stay at the bottom" as a teacher notwithstanding her love of photography. Nonetheless she may still have been able to work as a Leading Practitioner Pay Range Teacher or above or as an art therapist and have had time to do wedding photography several times a year, particularly during vacation periods. I find that her passion for photography was such that she would in all likelihood have sought to perform work at a professional level in one capacity or another.
2. Taking all of these considerations into account, I would assess the plaintiff's damages under this head, before adjustment for the "lost years" and for contingencies other than death in the amount of £1m.
3. From that amount however deduction needs to be made for the "lost years".
4. The defendants' submissions as to this are as follows:

9.37 The Defendants contend that the Court should adopt the reasoning of Lord Diplock in Gammell v Wilson, that where there is no history of steady pre accident employment, no award for lost years should be made because 'the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process.'

9.38 The Defendants further contend that the Court should adopt the reasoning of Griffiths LJ in Croke v Wiseman (with whom Shaw LJ agreed) and not make an award for the lost years in this case because the Court should refuse to speculate whether, if the accident had not occurred, the Plaintiff would have acquired dependants. '...the court should refuse to speculate whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist.'

9.39 If the Court determines to award damages for the Plaintiff's lost years, the Defendants contend that the appropriate calculation is to take the Plaintiff's current earning capacity and deduct an amount for what is estimated would have been the Plaintiff's living expenses.

9.40 The current average household expenditure set out by the ONS is £540 pw. The average household was made up of 64% 1 and 2 people households and 16% 3 person households, with the remainder 4 and more person per household. Because the individual's cost of living is substantially more than the ratio of the individual to the household, the Defendants contend that 70% of £540 pw is a fair approach, being £378 pw or £19,656 pa.

9.41 The appropriate discount rate shall be the rate applicable deferred for the period of the Plaintiff's life expectancy.

9.42 The Defendants contend there is no evidence to suggest that the Plaintiff would have worked past 65 years of age and anything else is purely speculative.

9.43 It is appropriate to apply a deduction for vicissitudes of at least 15%. The Defendants contend that any amount awarded, if at all, for lost years is largely if not wholly, speculative, and in the circumstances of this case a discount for vicissitudes of more than 15% is appropriate.

9.44 The calculation for the lost years is made from 2 July 2016 as follows:

9.44.7 10/12/2027 to 28/10/2053 is 25 years 10 months and 19 days.

9.44.8 10/12/2027 to 28/10/2056 is 28 years 10 months and 19 days.

9.44.9 16/7/2031 to 28/10/2053 is 22 years 3 months and 13 days.

9.44.10 16/7/2031 to 28/10/2056 is 25 years 3 months and 13 days.

9.45.1 £419.47 x 944.3 x 0.714 x 15% = £240,396.44 (3% multiplier).

9.45.2 £419.47 x 767.2 x 0.574 x 15% = £157,014.70 (5% multiplier).

9.46.1 £419.47 x 1,014.0 x 0.714 x 15% = £258,140.41 (3% multiplier).

9.46.2 £419.47 x 808.3 x 0.574 x 15% = £165,426.20 (5% multiplier).

9.47.1 £419.47 x 852.1 x 0.642 x 15% = £195,049.76 (3% multiplier).

9.47.2 £419.47 x 709.0 x 0.481 x 15% = £121,593.72 (5% multiplier).

9.48.1 £419.47 x 929.6 x 0.642 x 15% = £212,789.88 (3% multiplier).

9.48.2 £419.47 x 758.1 x 0.481 x 15% = £130,014.38 (5% multiplier)."

Award for lost earning capacity for the lost years

At para 9.37 of their submissions the defendants contend

The Defendants contend that the Court should adopt the reasoning of Lord Diplock in Gammell v Wilson, that where there is no history of steady pre accident employment, no award for lost years should be made because 'the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process.'

Gammell v Wilson (this and the other case on appeal were fatal accident cases) is not authority for that proposition. Rather, it is authority for the well understood principle that the court is required to make the best estimate it can on the evidence available. - see Martin v Howard per Nettlefold J at page 201 and Cosgrove J at 212.

In Skelton v Collins The plaintiff, who was seventeen years of age at the time when his injuries were sustained, suffered severe brain damage which rendered him unconscious.

Taylor J said at page 121 damages in the present case should have been assessed under this head having regard to the plaintiff's pre-accident expectancy and not only to the expectancy of life remaining to him after the receipt of his injuries.

The award for lost earning capacity must take account of the expenditure required to enable the future earnings to be earned.

• Meagher JA (in the majority on this point) at [24] referred to Reynolds JA in Fitch v Hyde-Cates

the problem is to ascertain what his net earnings would have been, and to deduct from that sum the estimated costs of his maintenance, and not to deduct all he spent for whatever purpose.

• Sheller JA (with whom Spigelman CJ, Stein and Giles JJA) agreed first dealt with the established principle that damages are awarded for the destruction or diminution in earning capacity . He then, from [55], dealt with the lost years in the various situations where the issue arises. At [87] he concluded his analysis of the topic by saying

In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff's life expectancy is reduced or not (see Sharman v Evans at 577). Even if the life expectancy is not reduced expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would have enabled the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further.

The question then is what deduction should be made in this case for expenses such as

- living expenses which would have enabled the plaintiff to earn.

There is no direct evidence which would enable a deduction to be made for fares or clothing. Neither of the experts called on employment suggested that there was any requirement for special clothing nor that any fares or travelling expenses would necessarily be incurred. However, it might be reasonable to make a deduction for transport costs necessary to enable Holly to earn as well as a deduction for clothing, sustenance and the like.

Holly would have needed housing to enable her to exercise her earning capacity. At page 44 of the closing submissions in the context of the accommodation claim we state

Holly may have married and that, if so, her partner would have contributed to the cost of housing. Further, the reduction should be tempered by the likelihood that she would not have needed a property of comparable size to the notional property and would have received inheritances from her parents, both of whom were professionals. Taking such matters into account, the reduction from her loss of earning capacity should be modest.

There are other expenses that fit the category of ones which would have enabled the plaintiff to earn.

D 69 contains a 24 page document entitled 'Components of household expenditure UK, 2014'. It was compiled by the Office of National Statistics. There was a survey of 5,130 households. The result suggests an average weekly expenditure of £531.30 but other items were recorded and not included in this total. The total is of little assistance to the Court as the households included in the analysis presumably included:

3 households in more expensive cities that the town of Chorley

The analysis also included many expenses which would not have been necessary to have 'enable the plaintiff to earn':

1 items that are gender or age specific such as men's clothing or children's accessories which are not applicable

2 a large component for education which Holly had substantially completed.

3 other items that would not appear to be used by the plaintiff such as narcotics or tobacco

4 duplication of expenditure such as is noted in transport with households having multiple cars and/or using public transport. Household petrol costs are recorded at £14.90 but we don't know the average number of cars and the cost relates to all usage.

5 the vast majority of items are likely to be enjoyed by all in the household such as TVs, holidays, house insurance, gardening supplies and so on.

The table may be useful to identify those expenses that are necessary to enable a person to live as well as to exercise their earning capacity. Of the items assessed the following fit that category - food £58.80, clothing and footwear £23.70, housing fuel and power £72.70, household goods and services £35.40, health £7.10, housing £46.30. Those items total £244.

This is obviously a difficult task. In our submission a deduction in the order of £80 is reasonable. That takes account of the fact that the expenses listed above are for households and not tailored to the costs of an individual required to exercise an earning capacity."

1. I reject the defendants' submission that no damages should be awarded for the lost years. Ms Raper had graduated from university and she had a discernible career path and demonstrable opportunities.
2. I accept the plaintiff's submission that the correct approach is to adjust the award for future lost earning capacity to take account of the expenditure that would have been required to enable the income during the lost years to be earned.
3. As to the approach to be adopted, I accept the defendants' submission that the appropriate calculation is to take Ms Raper's projected earning capacity and to deduct an amount for what it is estimated would have been her living expenses.
4. While I accept that Ms Raper would not, for the purposes of this calculation, have required housing as elaborate or as expensive as her present needs require, I do not accept the plaintiff's criticisms of the defendants' modelling as determinative in any way. There is artificiality about the exercise which is inherent and the ONS figures seem to me to be a preferable starting point to the items chosen by the plaintiff and adjusted without explanation. It may well have been that Ms Raper moved to London to work and formed a family conforming to the ONS models. Above all I find the attribution of 70% of the figure of £540 per week to be fair and the resultant figure of £378 per week more realistic than the plaintiff's randomly selected figure of £80 per week.
5. It follows that I accept the defendants' calculation based on 15 years' life expectancy and retirement at age 68 discounted at 3%. The resulting figure is £212,789.88.
6. The defendants submit that this figure should be discounted by 15% to take account of the ordinary vicissitudes during the lost years. The plaintiff does not agree and submits as follows:

Once Holly's life expectancy has been determined the allowance for future pecuniary loss (excepting lost earning capacity) will be for a set period. The only contingency that could apply - mortality - has been removed. No further adjustment is appropriate for future losses with the exception of the Wilson v McLeay type claim for the future gratuitous services of Chris and Elaine as particularised. These claims must be adjusted to take account of the contingencies that arise due to the age of both Chris and Elaine.

The award for lost earning capacity is properly one which could be adjusted for contingencies. Just what adjustment should be made (if any) will depend on the findings in respect of this head of damage. Contingencies such as the type of job, level of remuneration, promotion, self-employment or employment (relevant to superannuation) and unemployment may well be the subject of the findings that underpin the head award. In Hendrex, Blow CJ incorporated contingencies in the figure he found appropriate as representing the weekly value of the plaintiff's uninjured earning capacity and said at [131].

In selecting the figure of $250 per week, I have made allowance for the usual contingencies, including mortality, illness, and injury, as well as unemployment and under-employment.

It might be that the only usual contingencies left once Holly's earning capacity is valued are sickness, industrial disputes and mortality. In these circumstances consideration of the 'customary discount' for mortality, sickness, accident, industrial disputes, unemployment and underemployment would be inappropriate.

In the event that the usual contingencies have not been taken into account in arriving at the value of Holly's earning capacity our submission is that to reduce that value by 15% is inappropriate. A reduction around 5%-10% should be made.

The appellant's written submissions in Partridge contain the following which we gratefully adopt

In Western Australia, the figure for general contingencies is about five per cent in a claim for damages for personal injury .. . In New South Wales, the conventional discount for general contingencies is 15 per cent in personal injury claims. Some years ago I was a party to the reasons in a special leave application which stated that there was 'no reason to doubt the correctness' of a 15 per cent discount for the vicissitudes of life. Further reflection on statistics concerning unemployment and the payment of social services and workers' compensation, however, now makes me think that the figure of 15 per cent is too high - at least for low to middle income workers. And the Western Australian figure, although probably too low, may just be within the appropriate range in personal injury claims, particularly where the actuarial figures or tables used to calculate the present value of lost earnings allow for death. Beneficial social and industrial legislation has improved, and continues to improve, the financial lot of most workers who lose work and income through injury, illness, accident or unemployment. Once allowance is made for contingencies being favourable as well as adverse, a figure of five per cent may not be unreasonably low for the contingencies involved in personal injury claims.

114 The Appellant adopts the analysis of Professor Luntz in Assessment of Damages for Personal Injury and Death that a discount of more than 10% in the absence of considerations unique to a particular plaintiff is not statistically justified.

115 It is submitted that Professor Luntz's conclusion that the 'usual' discount should not exceed 10% is correct and that the 'usual' deduction of 15% that was applied as a starting point by His Honour was too high. It should not have exceeded 10%.

We also refer to the reasons in Partridge in particular to [181] and the discounts in Kember v Thackrah.

In Partridge the court concluded its consideration of the issue saying 'It may be that a customary discount of 15% is too high'. "

1. The full passage from Partridge v Hobart City Council (above) is as follows at [182]:

"It may be that a customary discount of 15% is too high. If that is so, it does not follow that his Honour's figure of 35% was too high. Whilst his Honour acknowledged that there was a customary discount, and can only have been referring to the Tasmanian customary discount of 15%, his reference to McLennan v Luttrell (above) makes it clear that he was well aware that, according to the available statistical information, a discount of that size is greater than adequate in an ordinary case. Being aware of that, he may well have chosen a percentage that he considered appropriate to the facts of the case before him, remaining conscious that a 15% discount tends to be generous to the defendant in an ordinary case."

1. In McLennan v Luttrell [2006] TASSC 44 at [40]- [42] Evans J said:

"40 At par6.4.13, Luntz concludes that in the average case it is more than fair to a defendant to allow a 5 per cent deduction for income loss due to the chance of a regular member of the workforce being unemployed. However, the plaintiff is not the average case. His Honour identified more than the average number of risks associated with the possibility of the plaintiff becoming unemployed or under employed in the future, regardless of her injuries. Whilst this strongly suggests that a higher discount than 5 per cent should be applied in respect of the plaintiff's unemployment risk, this is not necessary, as the adoption of a 5 per cent discount is sufficient to demonstrate the fallacy in the defendant's contention.

41 Adopting the above calculations the appropriate discount would be:

42 As pointed out by Luntz at par6.4.14, his calculation of the maximum discount for all contingencies is much less than the standard 15 per cent employed in New South Wales, and I would add, in Tasmania ... ."

1. In my view the exercise in the present case of valuing future lost earning capacity is akin to "an ordinary case" and I apprehend that a discount of 15% in an ordinary case is overly generous to the defendants. In my view the appropriate discount is 10%. In arriving at that conclusion I note that the type of employment in which Ms Raper was likely to be engaged was career professional employment and the incidence of unemployment or underemployment was not likely to be high.
2. It follows that I assess the plaintiff's damages for future lost earning capacity on the basis of a loss from 16 July 2016 to retirement at age 68 of £1m, a deduction for the expense of earning income during the lost years from 16 July 2016 to retirement of £212,789.88 and a discount of 10% of the resultant sum of £787,210.20 for vicissitudes. The total award under this head is therefore £708,489.18.

1. The plaintiff's claim under this head is particularised as follows:

Based solely on the teacher's earnings and assuming a career average scheme and assuming a career average figure for pension calculation of £42,000.00 and 45 years' service:

The Plaintiff would have had a life expectancy, but for her injuries until 27 April 2079, a period of 20.5 years following retirement. The loss of pension claim is for the period 29 October 2058 (day after date of retirement) to normal life expectancy but for the injuries (27 April 2079) a period of 20.5 years (commencing in 44 years) is:

£605.77 - £80.00 (for lost years) = £525.77 x 52 weeks x 20.6 years, discounted at 3% (218.45 deferred) the claim is £114,854.

"9.49 No claim is made for past superannuation from employment with the Defendants or as a result of any other notional employment while the Plaintiff was in Australia.

9.50 Carter states that the UK government have moved towards defined pensions. However he does not provide detail of how the scheme works.

9.51 Banks states that the employer contribution for teachers is 16.4% on top of a 9% contribution from the employee. Entitlement to a pension arises after a qualifying period (see Teachers Pension Regulations 2014).

9.52 The employer contribution is not a pool of funds which accrues to the employee but payment into a government scheme. Once the Plaintiff has worked longer than the qualifying period as a teacher, she becomes entitled to a defined benefit. The Defendants contend that as monies contributed on behalf of the employee are placed in a government scheme managed by The Teachers Pension Board, and the entitlements are not related to the amount of contribution, the Court should ignore superannuation contributions in the award of damages."

1. I reject the defendants' submissions. Mr Carter gave evidence in the form of a report prepared by him in which he set out the formula for the defined benefit pension Ms Raper would have been entitled to upon retirement. It is this formula that has been used in the updated particulars of claim and set out above in these reasons.
2. Mr Carter gave evidence that it seemed probable, given the findings of an inquiry conducted by Lord Hutton, that UK public sector pensions would convert to a "career average" scheme which would still be highly beneficial when compared with public sector "money purchase schemes". I understood that evidence as meaning that it was probable that in the future the formula may be changed to utilise a career average salary as opposed to the present final salary component of the formula. He was not cross-examined about that and I am required to assess damages as at the date of judgment.
3. The plaintiff's calculation is from age 70, whereas I have found that Ms Raper would have retired at age 68 when the pension became available. Moreover the plaintiff has adjusted the lost pension to take account of the "lost years". That does not seem to me to be necessary as there would have been no expense incurred in "earning" the pension. Adjusting the particularised claim accordingly I assess the total damages under this head in the sum of £145,285.89. I will hear counsel as to this, as well as to other mathematical calculations I have made.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff relies on the evidence of Mr S Threlfall and P36 and P37.

The Plaintiff has the benefit of a lay Deputy and a professional Deputy and the following Court of Protection costs have been incurred to date:

1. As to this claim the defendants' position is that the past fees are conceded as being appropriate, but that no satisfactory evidence has been provided as to the quantum of the deputy's costs except for one account which was assessed with a discount of approximately 28%.
2. I allow the fees claimed and the assessed costs of £3,099.68, a total of £6,236.73. Given that the remaining bill for past costs of £22,153.84 has not been assessed, I allow 75% of the amount claimed which gives a sum of £16,615.38. The total allowed under this head is therefore £22,852.11.

1. The plaintiff's claim is particularised as follows:

£400.00 Application fee £1020.00 Professional Fees on Application for Order of Court of Protection Annual Professional deputy fees are estimated below on the basis there is a sole Professional Deputy.

Court Annual Supervision Fees (supervision Type 2/2A intermediate level)

Security Bond (anticipated to increase following receipt of any award):

Costs Draftsperson Fees (bill preparation inc of VAT)

Submission and preparation of annual tax returns (inc VAT)

Discounted at 3% for life (805), the claim is £692,361.00

One off professional fees (arising during 2/3rd year of Deputy appointment and certainly post settlement) based on a joint appointment are as follows:

Further application post settlement for case review £850.00

If sole Professional Deputy this estimate for 'one off' fees would be £32,760.00

1. In support of this claim the plaintiff makes the following submissions:

To date Elaine Raper has performed a 'significant' portion of the role of professional deputy, in particular through the payment of invoices on Holly's behalf. The difference between Mr Threlfall's estimate of annual fees with and without Elaine's involvement was in the order of £24,500.00, representing the difference between £9,000.00 with her significant involvement and £33,500.00 without that involvement.

At the time of trial, no firm decision had been made as to the extent of Elaine's involvement as lay deputy into the future. She may continue, perhaps to a lesser degree, in that role, but she should not be forced to undertake that role for want of adequate compensation for the likely future cost of a professional deputy.

The likely cost of the future fees is a matter of judgment. Mr Threlfall estimated that for like cases £33,500 per annum was expected. It is accepted that if an agency model remains in place those fees may reduce, but nevertheless it is reasonable to assume that the overall future involvement of the deputy will be considerable on account of Holly's vast needs. If Elaine was not able to provide any support in this regard, every aspect of Holly's needs (nearly all of which must come at a price) would need to be managed and paid for by the professional deputy.

In our submission, the court should reject the evidence of Mr Jones, the defendants' expert. His evidence was to the effect that nearly every aspect of the professional deputy's role should be delegated to another person, be it the case manager or the nurse manager or the family. Effectively, the only function he would retain control over would be to organise the necessary 'direct transfers' to enable funds to be deployed periodically. If most of the deputy's functions were delegated the claims for the relevant managers and the gratuitous care for the Holly's parents should be increased accordingly. However, that course is not pressed by the plaintiff. The professional deputy should discharge his or her functions diligently and, in the process, take an active role (like Elaine has to date) in managing, budgeting and paying for Holly's vast range of needs. Under Mr Jones' model, and in the absence of Elaine Raper or another family member, it is difficult to envisage how Holly's best interests would be given sufficient consideration during such a modest number of hours per year. Considering expenditure on experimental and expensive treatment, dealing with change in any aspect of Holly's care model, planning for holidays and the like would not be given sufficient time."

"9.323 There is no further claim particularised for past Professional Deputy costs and no satisfactory evidence has been provided as to the quantum of any such pass costs except for the one account which was assessed at £3099.68 (P36 at 10.2). The original professional bill, for a six-month period, was £2825.53 but only £2046.23 was allowed, a discount of approximately 28% (Bill Summary sheet at exhibit SDT4 of Ex P36). As this is the only assessed bill for Professional Deputy costs it is the only credible guidance provided by the Plaintiff as to future costs which, upon this basis, would be £4092.46 plus the application fee and Deputy bond fee totalling £600 annually. This is approximately 10% higher than the pre-settlement costs suggested by Mr Jones at schedule C of D1, namely £3643 and for the reasons set out below Mr Jones's figures should be preferred. It is conceded that there may be extra costs for the first two years post settlement and these are dealt with below. Note that there is a clear error at T4 where the figures are quoted at £37,090 and £25,070 with the correct figures being the ones quoted above.

9.324 Mr Threlfall is very inexperienced as a deputy especially compared with the experience of Mr Jones. Mr Threlfall was also a witness in his own cause attempting to justify charges made by his firm and projected by him and hence wherever there is a discrepancy between his projected costings and those of Mr Jones the latter should be preferred for the following reasons:

9.324.1 Mr Threlfall had only been acting as a deputy for a couple of years and his firm only has about 14 active clients whereas Mr Jones has been specialising in this type of work for approximately 18 years, has dealt with 3-400 cases and is currently managing about 170 cases (T 17).

9.324.2 The only bill from Mr Threlfall (or his firm) assessed to date was discounted by approximately 28% by the assessor which is significantly higher than the 5 to 10% discount on bills provided by Mr Jones (T 28).

9.324.3 The costings provided by Mr Jones are in line with the guidance set out in Ex D2, a document entitled 'Professional Deputy Costs' issued by the Office of the Public Guardian.

9.324.4 Mr Threlfall prevaricated and made very few concessions whereas Mr Jones was prepared to admit that he may have been a 'little bit mean' when projecting future costs (T 28).

9.324.5 Mr Jones concisely and convincingly dealt with all matters put to him in a very thorough cross examination by Mr Cox including;

(a) J: It is trying to get across the point that the work of a deputy in some cases is not of a magnitude that perhaps might be suggested by others so if I was to look at Holly Raper's case once the case is settled all the things that Mr Threlfall talked about the property, the care regime will all be put in place it will be set up but sadly because of the level of disability I see her regime as being a very stable and steady one and one with the vast bulk of the work, the financial work, the work of the deputy is involved in regular bill paying not in day-to-day management her care and other matters (T 20).

(b) C So I just want to be clear about this so you'd have Mr Threlfall effectively the CEO if you like the business with 12 employees and you'd give him an hour and a half a year to manage that situation?

J: Yeah because she's not managing the situation the management of care is with the case manager; she is the CQC registered person who is the only person who has the legal authority to manage that team. Mr Threlfall does not have a management role in supervising how they perform their duties that is a matter for the case manager was another paid professional dealing with his or her special part of this package (T 21).

(c) J: The case manager is the person who supervise and looks after all the care regime and the support for the welfare and care of the client because the financial deputy's role does not wander into welfare issues. They're separate issues under our law (T 23).

(d) C: Mr Jones what I want to suggest to you is that you're over delegating the functions of the deputy in suppressing the proper award for costs for the deputy on account of Elaine Raper's involvement in Holly Raper's care that's what I suggest to you?

HJ: I'm only giving my evidence based on how I run my significant number of deputyships have been supervised and looked at by the Court of Protection and the Office of Public Guardian and my conduct was never found to be wanting.

C: And put it to you that to allow for the £4000 in the absence of Elaine Raper for a sole professional deputy to care for Holly Raper is just plain mean?

HJ: No I think I'm perfectly prepared to accept that it could be a little bit more but if you were to say to me what more might it be? I could see it perhaps being 6 to £7000 at tops. That is the sort of cost I would say if I was being not mean in your words. I do not understand where £33,000 come from (T 27).

(e) Mr Cox, in an attempt to show that a Professional Deputy should be doing more work than envisaged by Mr Jones, suggested (at T 27) that a Deputy should be involved in decisions about transportation. Mr Jones did not consider it an area in which the Deputy should be involved. Mr Threlfall (at T 6) could not demonstrate any evidence to suggest that his firm and been involved in transportation decisions and, if they had been so involved, it could not have been a diligent involvement having regard to the extremely excessive fees charged by Mr Kiely and the absence on the file of any comparative quotes.

9.325 In view of Mr Threlfall's concession that all work done by he and his firm to date has been carried out in a diligent manner, the fact that Mrs Raper deals with most of the day-to-day management and the only assessed bill indicates a yearly average of £3643 future Professional Deputy costs should only be allowed in the amounts quoted by Mr Jones and adjusted during his evidence, especially when questioned by His Honour at T 29. Those amounts are as follows:

9.325.1 First year of Deputyship Post settlement- mother maintains an active role: £11,549.

9.325.2 Second year of Deputyship Post settlement mother maintains an active role: £9005.

9.325.3 Third and subsequent use of Deputyship Post settlement mother (or other party such as father) maintains an active role: Between £4092.46 (extrapolation of annual costs to date) and £7025 (see schedule F of D1 and concession at T 29). Mid-point: £5558.73.

9.325.4 Post settlement period with mother (or no other lay deputy) taking no active role £10,247 (see schedule G of D1 and concession noted at para 9.259.5(d) above). Note it is considered highly unlikely that no member of the Plaintiff's family would be involved as a lay deputy in the future.

9.326 Summary of post-settlement Deputy costs assuming a life expectancy of 15 years (without discount):

9.327 Total past and future Court Protection costs including amount conceded at paras 9.256 - 9.257 above is £94,010.34."

1. As to these future costs and fees, the plaintiff claims £725,121 and the defendants concede £90,098.42. The evidence of Mr Threlfall and Mr Jones, the professional deputy called by the defendants, could hardly be further opposed. It is indeed a "matter of judgment" as the plaintiff submits.
2. Mr Threlfall was a relatively inexperienced deputy as compared to Mr Jones. He had only been acting as a deputy for a couple of years and his firm only had about 14 active "deputy clients". Mr Jones on the other hand had been specialising in this type of work for approximately 18 years and had dealt with hundreds of cases, currently managing about 170 cases.
3. Under Mr Jones' model without Mrs Elaine Raper continuing to do the work she presently does it is hard to see such a modest number of hours per year as proposed by Mr Jones could suffice, although he did concede an allowance of £7,000 per year to replace Mrs Elaine Raper if there was only a sole professional deputy.
4. On the evidence I have, Mrs Elaine Raper has not made a decision as to the extent of her involvement as lay deputy into the future. If she does not continue it appears that Mr Raper would take over. However if either of them continue to act in this role the plaintiff would be entitled to additional damages for gratuitous care.
5. I am not impressed by the cost modelling of either Mr Threlfall or Mr Jones. Mr Threlfall's figures were confused and confusing and it is clear that he has billed more than was considered reasonable by the Court of Protection in the past. Mr Jones, on the other hand, was glib and did not appear to me to have given any depth of thought to his costings. One was, in my view, egregiously over generous in the amount of hours thought necessary, and the other was similarly parsimonious. The gap is vast.
6. I see no reason not to allow the future fees estimated in full as well as the one-off costs of statutory will preparation and Official Solicitor's fees etc. Doing the best I can with the balance of the projected costs for years 1 to 15 post judgment I assess a total amount under this head, on the basis of a sole deputy in the sum of £225,000.

1. The plaintiff's claim for future care is as follows:

"The Plaintiff claims the need for future care (case management, nurse management and care team) as set out under the heading past care.

The Plaintiff claims £6469.46 per week discounted at 3% for life (805)

1. The claim as set out under the heading past care is as follows:

" A case manager is needed for 7 hours a week @ £102 per hour (£714 pw)

A nurse manager is needed for 2 hours per week @ £25 per hour (£50 pw)

A care team is needed for 49.5 hours a day @ £5,705.46 per week.

(£16.7x27+£18.90x11+£77.30) =£736.10 per day x 8 x 2 for double time divided by 52 = £226.50 pw.

1. The plaintiff's submissions in support of this claim were set out in part under the head of past care; however I set them out here in full with the exception that I do not replicate the table set out above where it appears in the plaintiff's submissions. The submissions are as follows:

We submit the court should find that Holly's care will be provided through an agency rather by direct employment. Elaine and Miss Sheffield considered direct employment in 2014 but did not continue to explore than avenue. It is clear that the care provided through Complete Care Agency is reliable. It was not put to Elaine Raper that she would move to a direct employment model. Nor was it put to Miss Sheffield.

In Mercer v Allianz Australia Insurance Ltd (No 2) Blow CJ considered whether it was reasonable for the plaintiff to continue to receive care from a service provider whose costs exceeded those of other service providers capable of providing comparable care. He continued at [92]:

In Kostik v Giannakopoulos , which concerned excessive physiotherapy expenses, King CJ, with whom Bollen J agreed, said at 68,904:

'A plaintiff is entitled to recover only the reasonable cost of the treatment which he requires. A reasonable amount of latitude may properly be allowed in choosing professional advisors and providers of treatment and the cost of treatment need not be regarded as unreasonable simply because the treatment might have been obtained more cheaply elsewhere, Wyld v Bertram [1970] SASR 1. A plaintiff cannot recover, however, exorbitant charges made by those from whom he has obtained treatment.'

93 In the circumstances, I consider it to be reasonable for the plaintiff to continue receiving care from ParaQuad indefinitely, rather than terminating his relationship with ParaQuad and engaging a less expensive provider of attendant care services. However I think I should take into account, in the defendant's favour, the possibility that the plaintiff might one day make such a change.

The difference in costs between the models is not stark and the costs under the agency model are not, by comparison, exorbitant.

At present Holly receives 24 hour a day, one on one care, plus 10 hours of overnight care, between 10pm and 8am, which is provided by an on call sleep carer, plus five hours from a second carer, being at 8am to 9am, 12pm to 2pm, 5pm to 6pm and 9pm to 10pm.

In all, Holly receives 39 hours of care, although it should be noted that the one hour allocation between 5pm and 6pm (provided by Housing 21) is not necessarily a whole hour. A carer from Housing 21 arrives at some time in that hour to help transfer Holly to and ready her for bed. Ms Orrell gave evidence that the carer from Housing 21 may only be at the house for 15 minutes for that purpose.

Holly does not have double up care between the hours of 9am and 12pm, 2pm and 5pm and 6pm and 9pm. As noted directly above, because the carer from Housing 21 only stays for as long as is needed to prepare and put Holly to bed, it could be said that Holly does not have double up care between 2pm and 9pm, save for the 15 minutes the carer from Housing 21 is at the house.

What happens when Holly doesn't have double care?

The simple answer to this question is that Elaine Raper fulfils the second carer role with support from her husband and sister along with Ms Orrell.

Ms Orrell gave evidence as to the need for double up care and the difficulties encountered when only one carer is rostered. Notable difficulties include: the inability to transfer Holly alone, manage Holly's spasms when repositioning, and keep Holly's head from falling down over her tracheostomy to avoid suffocation . An example of the day to day difficulties (and safety concerns) encountered by the carers was described by Ms Orrell as follows:

When Holly coughs she has an inner tube and then she has what's called a HME a Heat and Moisture Exchanger it's like a little foam cap that fits on to the end of it, Holly has a strong cough and can often fill that inner tube with secretions and quite often it will actually come into that foam cap as well. That has to be cleared quite quickly because Holly isn't able to breathe if that's blocked or even partially blocked so it's a case of having to take your gloves off, leave her in a position where you can run into the bathroom wash your hands, come back change the inner tube or HME so she's got a clear airway and they you're putting gloves on and continuing. That's not usually once that happens that can happen several times while you're doing the personal care. If Holly was to cough a huge amount so it's actually blocked you would actually have to take your gloves off and do it and then there's a risk of cross contamination but you would at times have to do that if she wasn't still being able to breathe and then you've got to go and carry on the personal care but at the end of it Holly will then need repositioning because she'll quite often cough, tense, while you're doing it so she's no longer in a good position to either sit in a bed or putting her onto her side. So then more often not we have to use a slide sheet on our own which is a 2-person job to reposition Holly where you can put her back on her side or her bottom's in the right position so that you can sit the bed up. So we do have to do that on our own.

Ms Sheffield gave evidence that 'for someone in Holly's position, two carers, around the clock, are required.'. She is the expert case manager. Both Prof Ward and Prof Swash conceded that a specialist in care provision was better placed than them to provide an opinion of the delivery of care.

Elaine Raper gave unchallenged evidence of the risk to Holly if a second carer was not immediately available

if she was soiled and had to go back to bed we would be in a pickle really wouldn't we? Or if she's uncomfortable if Holly's uncomfortable in her wheelchair then it becomes dangerous because she will slide down somehow and at some point she will then potentially land on the floor really. We keep a belt on her but it gets tighter and tighter as she gets down so at that point we have to take her back and either reposition or put her back to bed.

A positive contingency. Ms Kirby gave unchallenged evidence that if the sleeping is carer is disturbed more than twice in a night then the carer should be paid the 'full shift.' (Weeknight sleeping carer £77.30 becomes £167.00 and higher rates apply for the weekend and bank holiday)...

Miss Sheffield gave evidence that 1½ additional hours are required for shift handover. The handovers would not involve the sleeping carer. The average rate for all waking shifts is approximately £18 per hour. Accordingly, a further £189 a week is claimed.

Regardless of the model of care delivery (agency or direct employment), a case manager is required. The case manager has been paid for privately in the past and will continue to be in the future. The rate is £102 per hour . Mileage, as reflected in the current case manager's accounts, should be added to this.

Miss Sheffield gave evidence as to the roles and responsibilities of a case manager and the likely time spent per month in fulfilling those roles and responsibilities. She reported that, in her experience, 25 hours per month is required. It is accepted that Miss Sheffield's breakdown of those hours was not satisfactory, but the diverse and vast range of Holly's needs do not make for easy quantification. To the hours set out in her report, regard should be had to the case manager's roles and responsibilities. These include the formulation of clinical goals and treatment plans, devising and implementing risk management plans which are considerate of Holly's best interests, overseeing all of Holly's needs for accommodation, transport and equipment and so on.

In our submission, a claim of 7 hours per week, without mileage allowance, is reasonable, particularly if the case manager's duties extend to liaising with and reporting to the professional deputy concerning financial matters.

A nurse manager is required to ensure Holly has optimal medical care; that doctors are consulted as needed and that Holly's tracheotomy and feeding, and skin are properly monitored. Holly's medication must also be overseen

Miss Sheffield estimated that with an agency model a nurse manager would be needed for approximately 2 hours per week at £25 per hour . That evidence was not challenged. A claim is made on that basis. Of interest, Ms Kirby gave evidence that a nurse manager would be required for ten hours a week on the direct employment model."

1. As to the care model the defendants submit as follows:

9.266 The starting point of this debate involves two simple propositions. The first is that, in every other case of this nature, it has been customary for the plaintiff to adduce evidence of the current care regime and the cost of that regime. The court then embarks upon analysis of whether the current regime is adequate or not and in what respects it is reasonable to make an award of damages which provides for an appropriate amount of care for the future. In the present case the current care regime (with its imperfections) in fact works. So much was acknowledged by Ms Orrell at Ex P26).

9.267 One extraordinary feature of the way in which the Plaintiff has presented a case is the relatively insignificant role played by various medical professionals who are not doctors and the lack of reliance on treating specialists such as Dr Shakespeare in relation to major aspects of the Plaintiff's claim. While there has been some debate about the constitution of an appropriate clinical team, the fact is that Doctor Shakespeare has been the central and most highly qualified (the medical sense) member of that team. He has had an ongoing relationship as the principal treater of the Plaintiff. He has not been asked to express a view about her care needs or life expectancy. These are the most significant (in monetary terms) aspects of the Plaintiff's case. Dr Swash was of the view that the current regime was more than adequate. Professor Swash is of the view that a lesser regime is all that is necessary (T 513.24). Professor Ward is of the view that the current regime is adequate with the exception that the emergency night time care should not be left to the Plaintiff's mother (Ex D46 at p 8.2). The regime which is proposed in relation to the amount of time spent with overlaps and case management is, it is submitted, excessive and should be rejected. Furthermore, in monetary terms the starting point of the debate ought to be the current cost of the current care regime. The Plaintiff has failed to provide this evidence. It is highly unusual in a case of this nature for evidence of the cost of the current regime not to be led. The inference which the court should draw is that the current cost of the regime is far less than the costing which flows from the regimes advocated by case managers and physiotherapists.

9.268 It is significant that Dr Shakespeare (who one would think is by far in the best position to speak on this issue) does not express a view supportive of the regime advocated in the Plaintiff's case. Professor Ward does not support the regime advocated by the Plaintiff.

9.269 The Defendants submit an appropriate level of care would be that advocated by Professor Ward. We also submit that Professors Ward and Swash, in the absence of any opinion from Dr Shakespeare, are the best guides in the reasonable care needs of the Plaintiff.

9.270 The Plaintiff claims 24 hour paid care as well as ongoing gratuitous care of 3 hours a day from Mr Raper for care, comfort and support (equating to £350.70 per week) and £500 for ongoing gratuitous care by Mrs Raper for care, comfort and support, as well as assistance with the Plaintiff's finances and welfare. The Defendants dispute the claim for gratuitous care, as the Plaintiff claims 24 hour paid care and she cannot be awarded both paid and gratuitous care which aggregate to more than 24 hours per day. Further, to the extent that it needs to be stated, the Plaintiff is, and will be subject to orders regarding her finances and welfare made by the Court of Protection.

9.271 As part of Ms Kirby's estimate of future care, she has allowed for 10 hours per week for a team leader registered nurse. Her evidence at T 16 is that the 10 hour weekly allowance would be comprised of two 5 hour blocks, but it could be five 2 hour blocks if the Plaintiff was poorly.

9.272 Ms Kirby's evidence at T 4-5 regarding an allowance of 10 hours per week for a registered nurse, is in part based upon her understanding that the Plaintiff will be trying hydrotherapy.

9.273 Ms Kirby's evidence at T 15 is that the Plaintiff's carers have in the past, had access on a daily basis to Mrs Raper, in the event that there were any issues with the Plaintiff's health.

9.274 Ms Kirby stated in evidence at T16 that there may be training issues to address with staff or various liaison matters with the case manager or medical providers.

9.275 The Defendants submit that Ms Kirby's allowance for 10 hours a week for a team leader registered nurse is excessive for the following reasons:

9.275.1 The evidence is that hydrotherapy will be unsafe for the Plaintiff as she has a tracheostomy in situ, which is unlikely to be removed.

9.275.2 The care diaries between 5 April 2013 and 9 April 2016 demonstrate that Mrs Raper's documented input into the care regime consisted of personal care activities only.

9.275.3 In the event that the Plaintiff was unwell for a week, she would be under the care of doctors or in hospital.

9.275.4 The available invoices from Complete Group demonstrate that the Plaintiff was attended by a nurse as part of her care package in 2015. The nurse attended between 2 January 2015 and 11 December 2015 for periods ranging from a minimum of 0.33 hours on one occasion to a maximum of 3 hours on one occasion. The remaining visits were between 1 and 2 hours. There were 2 visits in both January and February; 1 in March; 3 in April; 4 in both May and June; 2 in July; 1 in August; 2 in September; 3 in both October and November; and one in December. These visits traversed periods when the Plaintiff was unwell.

9.275.5 The Complete Group nurse spent half an hour on administrative tasks per visit, save than on 30 January 2015, 17 September 2015, 4 November 2015 and 12 December 2015 when there was one hour spent on administration on each occasion.

9.275.6 The evidence of Mrs Raper is that the Plaintiff should have more personal care. She did not give evidence that the Plaintiff required greater nursing supervision at home.

9.276.1 The nursing care evidenced by The Complete Group is evidence of an appropriate level of care to meet the Plaintiff's needs, given that she remains under the care of a multidisciplinary medical team and her GP.

9.276.2 There were no complaints by Mr or Mrs Raper or by Ms Orrell that the Plaintiff's health was compromised by the level of nursing care provided for in The Complete Group package.

9.276.3 The Plaintiff would have a continuing entitlement to a care package through a Personal Health Budget and as part of that, would be able to obtain ongoing nursing visits."

1. I do not accept the defendants' submission that it is necessary to know the cost of the current care package provided by the Complete Care Group in order to judge the reasonableness or otherwise of the proposed future care regime. The evidence given by Ms Kirby and Ms Sheffield was not contradicted or undermined by cross-examination or other evidence, and I have already explained why I regard the current regime as inadequate as exposing Ms Raper to risk which fortunately to date has not materialised as a result of the gratuitous care of others. An agency model is appropriate for the future and that model must, in my view, provide 24 hour "double up" care for Ms Raper that does not rely on the good will of others.
2. I accept however as I will explain shortly, that, as the defendants submit, the plaintiff cannot be awarded both paid and gratuitous care that amount to more than 24 hour "double up" care in the aggregate.
3. Moreover, I accept the defendants' submission that some of the hours claimed outside the 49.5 hours per week for the core care regime are excessive, as is the handover period claimed within the core package of 1½ hours.
4. I do not accept that any adverse inference should be drawn from the fact that Ms Raper's lead specialist, Dr Shakespeare, did not "express a view a view supportive of the regime advocated in the plaintiff's case". In fact Dr Shakespeare was asked what his view was as to the number of hours per day of care that Ms Raper required in the future and he was prevented from answering by a successful objection by senior counsel for the defendants made on the basis that such evidence was not contained in the doctor's report which had been tendered.
5. I do not accept the defendants' submission that Professor Swash and Professor Ward were best placed to judge the extent of care required. Professor Swash was of the view that a lesser regime than at present was all that was required; and Professor Ward felt that the current regime was adequate with the exception that the emergency night-time care should not be left to Ms Raper's mother. However, Professor Ward and Professor Swash were retained to give evidence at the trial of this action. They were not her treating specialists. Professor Swash saw Ms Raper once and Professor Ward saw her twice.
6. More importantly I do not agree that medical specialists are best placed to form judgments about the care regime for a person in a minimally conscious state. Ms Kirby and Ms Sheffield are autonomous practitioners in the field of care and their evidence was not discredited in any significant way. In my view the defendants' submission pays unsubstantiated and unwarranted reverence to the casual observations of Professor Ward and Professor Swash because they are medical doctors.
7. The defendants also submit that the inference which I should draw is that the current cost of the regime is far less than the costing which flows from the regimes advocated by "case managers and physiotherapists". I do not find that submission to be persuasive.
8. The touchstone is the reasonableness of the care proposed. I am satisfied that the care currently provided to Ms Raper is inadequate and that the replacement package of care with some minor adjustments is reasonable. Even if the evidence showed, which it does not, that sufficient future care could be provided at a lesser cost, that of itself would not render the proposed level and standard of care unreasonable. I add that the proposed costs of themselves have not been shown to be based on unreasonable or inflated rates.
9. Making adjustments for the matters I have made reference to above and calculating the plaintiff's loss on the basis of a life expectancy of 15 years and not 20.6 years, I assess a total figure for future care in the sum of £3,697,737.80.

1. The defendants argue that the plaintiff is obliged to bring into account for the defendants' benefit the availability of NHS funding for Ms Raper's future care. In the UK the question would not arise as s 2(4) of the Law Reform (Personal Injuries) Act 1948 (UK) provides that in any action for damages for personal injuries the possibility of avoiding expenses by taking advantage of NHS facilities is to be disregarded in determining the reasonableness of any such expenses.
2. The defendants argue however as follows:

"9.56 In relation to State based services provided free of charge, most service providers are entitled to charge patients who are able to establish that they have entitlements to damages so that the question of the availability of free facilities is unlikely to often arise. However, Professor Luntz submits that if the situation did arise where services were provided free of charge to the plaintiff, the defendant should be entitled to credit unless the plaintiff is obliged to repay. The provision of services by the NHS is therefore not analogous to the treatment of most other social benefits (which have, in many instances, a requirement for the plaintiff to repay) now available in Australia. It is submitted that the treatment of services by the NHS should be considered in that light.

9.57 If the Plaintiff could reasonably obtain free hospital treatment, but chooses to incur private expense instead, the Plaintiff should not be entitled to recover damages for the private treatment. This is in direct contrast to the Law Reform (Personal Injuries) Act 1948 (UK), s 2(4) which, it is submitted, has no application in this case.

9.58 Professor Luntz says that if free services are available the defendant should be given credit for the payment out of public funds, so that the plaintiff would be unable to recover damages in respect of hospital treatment, unless the plaintiff is liable to reimburse the source from which payment has been made.

9.59 The vast majority of other social benefits in Australia are now legislated such that they are either repayable to the government or are precluded in the event of an award for damages. This trend is more consistent with the principles of compensation than the 'anomalous' development of the Griffiths approach.

9.60 As Gibbs J noted at para 13 of his judgment in Griffiths v Kerkemeyer:

'...Notwithstanding that Lord Reid, in the passage cited from Parry v Cleaver (1970) AC, at p 14 equated public with private benevolence, I consider that if the hospital, medical and nursing services provided by the state are such that the plaintiff has been and will be supplied with all the services that he reasonably requires at no charge to himself, the case will, as a general rule, be one in which the wrongdoer should have the benefit of that circumstance. There appear to me to be strong grounds of policy which distinguish services which the state makes available for all persons, or for all in a certain category, on the one hand, from services provided as a result of a sacrifice made by a relative or friend of the plaintiff, on the other hand. ...'

9.61 The NHS provides a scheme whereby certain services and items are provided free and to which a person's entitlement is not the subject of means testing.

9.62 That is to say, an award at common law to damages is an irrelevant consideration in the NHS determining the availability of the service or items from the NHS.

9.63 In the United Kingdom, a plaintiff who has available to him statutory funding has an absolute right to choose to forgo the same and require the tortfeasor to pay A defendant cannot resist a claim for medical expenses by arguing that those expenses could be met by the NHS.

9.64 In relation to statutory benefits that might be received, the general theme from the cases appears to be that where benefits are paid under a statutory scheme and are recoverable out of the damages paid or are otherwise repayable by the Plaintiff, the amount of the benefit is disregarded in the assessment of the victim's damages. The same principle applies in relation to Medicare payments and nursing home benefits which will be recouped under the Health and Other Services (Compensation) Act 1995 (Cth).

9.65 In relation to future Medicare payments, they are calculated without reference to the possibility of reimbursement because no benefits are payable in so far as the expenses have been allowed for in the judgment or settlement.

9.66 For the purposes of comparison with the NHS, there is thus not a problem in the nature of the one at hand when one examines Medicare in Australia; completely insofar as it relates to future payments and partially in respect of certain non-refundable services and items already paid for.

9.67 That is because, except as discussed above, the benefits paid by the NHS are not refundable by the Plaintiff. To the extent that NHS services and items are provided free of charge and are not refundable, the position in Australia regarding Medicare services and items and their treatment in the assessment of damages is therefore not of assistance in the present circumstances because the NHS services and items in question are not repayable by the Plaintiff. The only important point to note following an examination of the system in Australia is that 'there is a certain method of ensuring repayment and so preventing double dipping'. That is to say, there is a clear legislative intent that a plaintiff cannot double dip by claiming free benefits from the State and claim damages from the defendant.

'On the principle adopted in Griffiths v Kerkemeyer the plaintiff is prima facie entitled to damages for the reasonable cost of medical and hospital treatment once the need for such treatment is shown; it then becomes a question of whether the defendant is entitled to credit if the actual cost is not met by the plaintiff personally, but by public funds. However, the courts have never looked at the question in this way and have generally proceeded on the basis that Griffiths v Kerkemeyer is not relevant to the issue of recovery of damages for hospital expenses ....

"Prior to Griffiths v Kerkemeyer the courts assessed the defendant's liability in this area by reference to the extent of the plaintiff's liability to pay the hospital fees and, ... they have continued to do so after Griffiths v Kerkemeyer".'

9.69 As Luntz points out, the benefits conferred on plaintiffs by the National Health Service there was seen as being in the nature of public benevolence, indistinguishable from private benevolence, or akin to insurance financed by contributions paid by all, including in most cases the particular plaintiff. Thus, under the principles of collateral benefits the Plaintiff was not required to give credit for the value of the benefit conferred.

9.70 In the case of a statutory benefit, the intention of the legislature with regard to the nature of the benefit must be gleaned from an intention of the statute.

9.71 The basic criterion for determining whether a collateral benefit should be taken into account in assessing damages is its character (National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 applying Redding v Lee and Zheng v Cai)."

1. I have already held that, in my view, on an Espagne approach, the facilities provided by the NHS are benevolent subventions from public funds with the intention that no payment was to be made for them by the plaintiff and no repayment or refund sought. Indeed while a very limited and capped recoupment from a tortfeasor is permitted by or on behalf of the NHS in respect of past hospital expenses, the availability of future benefits is quite irrelevant to any claim for damages.
2. In so holding I accepted the plaintiff's submission that there is no clear legislative intention that NHS services or their value are to be deducted from the plaintiff's otherwise established right to damages.
3. NHS care benefits are of an entirely different character to social security benefits in Australia and I am not assisted by the consideration that the care benefits might be said to be "conferred on the plaintiff independently of any other right of redress"; Redding v Lee (above) at 125.
4. In my view it is beyond argument that the availability of NHS benefits is not to be brought into account in diminution of the plaintiff's damages for future care. Nor does any notion of double recovery or unjust enrichment have a role to play. I am satisfied that there is no realistic prospect that the plaintiff will "double dip". Mrs Elaine Raper gave evidence, which I accept, that the plaintiff will fund future care from "the verdict" if there were sufficient funds and that for the reasons she gave she would "definitely" and "certainly" avoid using the NHS and would move away from it. The right to "self-fund" was expressly acknowledged by the Court of Appeal of England and Wales in Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145 at [53].
5. In so far as concerns any question of mitigation of damage I accept the plaintiff's submission that the relevant inquiry is whether it is reasonable for Ms Raper's litigation guardian and deputies to opt for privately funded care instead of relying on the NHS.
6. As to this the plaintiff makes the following submissions:

"The standard of reasonableness is not objective. A subjective element is involved. The court is tasked by a defendant to find that a plaintiff, having regard to his or her circumstances (or in this case Elaine and Holly's circumstances) has failed or will fail to take reasonable steps to mitigate the loss.

It is acknowledged that Holly has received a care package from the NHS and that package, with extra care funded by Elaine and gratuitously provided by Elaine, Chris, other family members and Ms Orrell, has resulted in a workable care regime for Holly. However that regime is not adequate to meet all of Holly's needs and it is only workable in the sense that Holly's accommodation is workable, or her time on the neurosurgical ward at Royal Preston Hospital was workable. Ultimately, Holly's care regime is only workable because Elaine has option but to make it work.

The two things that keep Elaine awake at night are that she will die before Holly or that Holly will be put into a nursing home . From the outset, the NHS did not provide Holly with adequate care. During the discharge planning meetings (at Royal Preston Hospital) Elaine expressed her desire to bring Holly back to the family home, but that was not met 'with a great deal of enthusiasm' . In the course of discussing a NHS care package on Holly's discharge, Elaine had to 'fight' to bring Holly back to the family home. The alternative being that Holly be placed in a residential care home. Those who determined the care package 'absolutely and definitely wanted her to go in a residential care home '. Even before Holly was discharged there were difficulties on account of the presence of Holly's tracheostomy. Its presence precluded Holly from being placed on the neurorehabilitation ward. Instead she was placed on the neurosurgical ward .

The care package that Holly initially received was inadequate. It did not provide for 48 hour, double up care. This was so despite that level of care originally being proposed by the Commissioning Care Group (CCG). In the process of settling the care package, Elaine was not invited to attend any of the CCG meetings and, to her understanding, nor were any of Holy's medical team . The original recommendation was that Holly would not only have the double up care but also receive physiotherapy on a daily basis. However, the only package 'that they put on the table was one to one and I think it was either one to one or a care home really so to me that's not an option' .

Elaine gave evidence that if she received a sufficient award of damages she would fund Holly's need for double up care in line with the CCG's initial recommendation .

An example of the sort of difficulties Elaine has encountered with the NHS is the withdrawal of the NHS dietician about a year ago. Moreover, there is the risk of reassessment every year for Holly's NHS entitlements. With that assessment, comes the real prospect that Holly will be moved into a nursing home. Miss Sheffield and Miss Peters were equally concerned that, on reassessment, Holly would only be offered a residential placement. Whether funding to the value of a residential placement would be given in lieu of a placement is unknown. It could be inferred that funding, rather than a placement, may be given in line with the policy of the Government to move from the provision of services for care (paid directly by the NHS) to personal health budgets (where the funding recipient deploys the funds at their own discretion). In that event, the funding may be significantly less than that which is presently provided by the NHS. Holly is at risk of the burden of any shortfall in funding on reassessment or a change in government policy or decision by any NHS entity charged with allocating funds or providing services to Holly

Ultimately, Elaine Raper expressed the following intentions in terms of Holly's funding for future care:

I think for my own peace of mind and for Holly's future I would definitely like to move away from the NHS just because I have seen services being taken away, eroded, we have seen a doctors strike yesterday for the first time in history it's a real critical time for the NHS and I am worried that there will come a point where they say she needs to go into a nursing home.

Elaine Raper was not shaken under cross examination in relation to this issue. Indeed she further explained under cross examination that if, following judgment, she did not have sufficient funds to privately pay for all of Holly's needs she would have no option but to use the NHS, however, 'if there was enough funds available I would avoid using NHS yes certainly'.

Elaine Raper's difficulties with and concerns about the NHS system do not constitute a mere fear, but evidence a perfectly reasonable basis to avoid reliance on the NHS and opt for self-funding. In the circumstances (being Elaine and Holly's circumstances) the defendants cannot establish to the requisite degree that in the event Elaine elected not to fund any of Holly's care via the NHS she will have failed to mitigate Holly's loss.

No discount should be made for the chance or likelihood that Elaine may use NHS funded care. Such an approach is impermissible. A contingency ought not apply to this issue. Either Elaine's option to self-fund is unreasonable or it is not.

There is also an inherent unfairness with the defendants' argument; if the damages are reduced, Elaine will have no choice but to use the NHS. Further, if the NHS cannot meet all of Holly's needs, she will not receive full compensation. And, the risk of that occurring cannot be remedied by an order of the Court to the effect that the defendants' indemnify Holly to the extent of any short fall in funding - the damages must be assessed once and for all.

Finally, the defendants' position is inconsistent with the liberty of an individual. Expressed another way the position is inconsistent with the 'tortfeasor pays' principle. Even under English law a claimant in a personal injuries action has the unfettered right to 'opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority' (see Peters v East Midlands Strategic Health Authority and Anor)."

1. The defendants contend that there is no realistic prospect of changes to the NHS in the future adversely affecting the level of care that is currently provided, that Ms Raper will remain eligible for continuing healthcare and that there is nothing to prevent her from augmenting that care out of her own funds (to which extent of course she would be entitled to compensation).
2. That, to my mind, is not the relevant consideration. The question is whether it is reasonable to move away from the NHS. In my view it is.
3. Ms Raper should not be required to have her future health care needs arising as a result of the defendants' negligence placed beyond her deputy or deputies' control and in the hands of the NHS bureaucracy. She should not be exposed to the possibility that her present care package might be downgraded and in particular she should not have to run any risk that health bureaucrats might take the decision to fund only residential care.
4. I accept the plaintiff's submissions as to this and to the measure of reasonableness I add the following passage from the evidence of Professor Ward:

"She's in a slightly better position, however to those within your nursing facilities because at home she's less likely to pick up an infection; is that fair?......There's no doubt about it. I mean, people in institutional care are more likely to get infections. One always has to be slightly worried about carers coming in because they come in with their respiratory tract infections and can give them to the patient, to Holly. So I mean there is a - that infection risk is always there."

1. All of the relevant medical evidence in this case had one feature in common and that is that the greatest single risk of death for Ms Raper was infection, and in particular chest infection. Thus, even if it might be said that the likelihood of Ms Raper being forced into residential care is small, the magnitude of the risk if it eventuated is great.
2. The defendants' answer to this is that they offer an indemnity from their insurer that promises that during Ms Raper's lifetime the insurer will pay the cost of any shortfall in the current level of NHS care provided should the NHS reduce that level of care.
3. The defendants submit as follows:

"7.1 Compelling evidence was given by Sue Peters an experienced housing care professional whose evidence was not seriously challenged.

7.2 In her conclusions at page 15 of Ex D12 Ms Peters notes the following:

5.1 Miss Raper currently receives a commissioned care package, fully funded by Chorley and South Ribble CCG (Clinical Commissioning Group) by virtue of her eligibility to receive fully funded Continuing Healthcare.

5.2 On the basis of information available to me I do not envisage a situation where she would not be eligible in accordance with current legislation and guidance.

5.3 Miss Raper's care package is currently commissioned via an agency, however her case manager would prefer a directly recruited team of carers. A Personal Health Budget would ensure the retention of NHS funding to facilitate this transition.

5.4 it is unlikely that a PHB will meet the entirety of the cost of the care package as envisaged by Ms Sheffield, however private funding can augment the pot of money in respect of nonclinical needs-for example the sleep -in carer or additional 2nd carer hours to enable choice and flexibility.

5.5 I strongly recommend that this is considered a partnership funding opportunity with the CCG and a dialogue is initiated with Chorley and South Ribble CSU as soon as practicable.

5.6 Continuing healthcare is not means tested; a personal injury award is irrelevant to the eligibility decision and consequent continuation of funding.

7.3 At p 2.2 of Ex D13 Ms Peters notes that Ms Sheffield suggests a PHB is a long-term goal to write greater control over delivery of care. This could have been pursued any point since October 2014 but appears not to have been pursued and care continues to be delivered via a care agency.

7.4 At Ex D13 pp 2.6-2.7 she notes that there is almost always a discrepancy between the level of need, and consequent care provision, identified within the context of NHS Continuing Healthcare and that identified within the context of a personal injury claim, but there is scope to top up the value of the PHB with private funding, i.e. the PI award.

7.5 Ms Peters notes at para 4.6 of Ex D12 that she does not envisage a situation where the Plaintiff would not meet the eligibility criteria for CHC funding within the context of current legislation and guidance and at para 4.8 and having already sanctioned a homecare regime the CCG would require very robust justification to place a Plaintiff in residential placement contrary to family's wishes.

7.6 At para 2.11 of Ex D13 Ms Peters notes that the care package will be subject to annual review which may result in increase in the value of the PHB or, in the unlikely case of substantial improvement, a reduction in such funding.

7.7 Both Mrs Raper and Ms Sheffield expressed concerns that the NHS continuing its present form and Ms Sheffield also expressed concerns that at times the NHS were difficult to deal with. Ms Peters conceded that the NHS could be difficult to deal with at times but in a case such as the Plaintiff's once a regime had been approved it was highly unlikely to be downgraded.

7.8 In any event the concerns of Mrs Raper and Ms Sheffield can no longer continue in light of the indemnity provided by the Defendants. The indemnity in fact places the Plaintiff in a far more certain position because it guarantees the current level of NHS funding for the duration of her life which may exceed the period of life expectancy determined by the court.

7.9 In her evidence at Ex D12, pp 5-7 Ms Peters eloquently explains the reasons for differences between for what the NHS is prepared to pay and a family's desires. She also explains the use made of indemnities which makes it quite clear that the indemnity offered is appropriate and workable."

1. I do not doubt that a plaintiff might properly settle an action for damages in the circumstances of the present case on the basis of such an indemnity, but I am unaware of any authority for the proposition that I could force an indemnity upon a plaintiff who, as here, does not accept it.
2. The only question to my mind could be whether it could be said that in failing to accept the indemnity the plaintiff has acted unreasonably and in breach of her duty to mitigate. In my view that cannot be said. The simple and undeniable proposition is that however large and well established the defendants' insurer might be, insurance companies, like banks and other large financial institutions, have been known to fail. With such a large sum of money involved I am unable to say that it is unreasonable of the plaintiff not to accept the indemnity.
3. There will be no deduction made from the award of damages for future care.

1. The plaintiff claims that she needs the "continued care, comfort and support of her parents", and in the case of her mother, assistance concerning her finances.
2. The defendants submit as follows:

"9.270 The Plaintiff claims 24 hour paid care as well as ongoing gratuitous care of 3 hours a day from Mr Raper for care, comfort and support (equating to £350.70 per week) and £500 for ongoing gratuitous care by Mrs Raper for care, comfort and support, as well as assistance with the Plaintiff's finances and welfare. The Defendants dispute the claim for gratuitous care, as the Plaintiff claims 24 hour paid care and she cannot be awarded both paid and gratuitous care which aggregate to more than 24 hours per day."

1. I accept that submission. Whilst I have no doubt that both of Ms Raper's parents will continue to show her their complete love and affection and will spend many hours in her company it can no longer be said, in view of the future care package I have allowed along with the other future occupational, speech and language and neurological therapy for which allowance will be made, that their time spent with Ms Raper will be meeting some un-catered for injury created need.
2. As to assistance with finances, on the evidence I have, Mrs Elaine Raper has not made a decision as to the extent of her involvement as lay deputy into the future. If she did not continue it appears that Mr Raper would take over, but the evidence is too vague and uncertain to establish an entitlement to additional damages for gratuitous care. It was for that reason that I assessed damages under the head of future deputy costs on the basis of a sole deputy.
3. I make no allowance under this head.

1. The plaintiff's claim under this head is particularised as follows:

"Accommodation - Purchase Price and related costs

The Plaintiff relies on the evidence of Mr S Docker and P58 to P61

Finding the Plaintiff a suitable home suitably adapted and with adequate space for her care team is clearly an urgent priority and this is compounded by the fact that the Plaintiff is currently being cared for in an adapted garage.

The Plaintiff relies on the evidence of Mr S Docker and P58 to P61

Finding the Plaintiff a suitable home suitably adapted and with adequate space for her care team is clearly an urgent priority and this is compounded by the fact that the Plaintiff is currently being cared for in an adapted garage.

Accommodation - Adaptation and Modification Costs

Less Aggregate of Betterment elements £80,000 £728,930

1. The plaintiff's submissions in support of this claim as particularised are as follows:

"Holly needs her mother to live with her. Her mother is willing to do so for as long as she is alive and able.

The experts, Mr Docker and Mr Crosby, were agreed that a balance needs to be struck between the size of the notional property and the alterations and extensions to it.

Mr Docker's opinion is based on the assumptions set out at P60, p3 at par4.2. Those assumptions replicate, or at least very closely correlate with, Holly's needs. He also identifies the difficulties and wasted costs incurred in under provision of suitable accommodation.

By contrast, Mr Crosby (through no fault on his part) assumed that a bedroom for the carers was not needed , that a therapy room was not needed , that a dining room was not needed , that Elaine did not need an ensuite bathroom , and that only one guest bedroom, of a lesser size than those in the present home, was sufficient. Mr Crosby's allowances for storage were also significantly less than Mr Docker's and would require equipment such as wheelchairs to be stored in the garage. (Ms Peters and Mr Crosby T31). The reason for the difference in the need for storage was because Mr Crosby assumed that the only item of equipment for storage was the wheelchair 'and that's about it really'

Mr Docker's approach is to provide Holly with a bespoke home to suit her vast needs and to cost the modifications and adaptations. Mr Crosby's approach is to start with the minimum standard for wheelchair persons and provide an up lift of 20% to the cost of adaptations. Despite the uplift, Mr Crosby acknowledged in his reports that the starting premise was wrong. In our submission, Mr Docker's approach is more appropriate. If Mr Crosby's starting point is wrong, the Could should not have confidence that any up lift will make the approach reasonable.

In our submission, there is a need for the following rooms:

• A bedroom for Holly, which is of sufficient size to accommodate her and her special bed, allow for her transfer to and from bed to her wheelchairs, and enable easy access for her to the ensuite bath and shower room;

• Holly's ensuite which needs to be of sufficient size to accommodate her wheelchair and her transfer to her 'special' or Jacuzzi bath (which Ms Gill recommends and Docker costs), toilet and shower bay;

• Three other bedrooms, one for the sleeping carer, one for a guest, such as Holly's aunt, and a spare room to store the equipment listed by Ms Hodgkinson (P45, p14.) and the vast quantity of medical supplies (ordered by Ms Orrell and witnessed on the view);

• A kitchen and Dining room, either combined or separate;

• A Snoezelen room - Ms Hodgkinson gave evidence that Holly needs a multi-sensory environment. Ms Sheffield also gave evidence of the effectiveness of a Snoezelen.

1 The evidence supports a claim for hydro-therapy and an award to build a hydro-therapy annexe as costed by Mr Docker .

2 Ms Hodgkinson gave evidence that, assuming the trial of hydro-therapy was successful, Holly would benefit from it. She stated:

It is a different therapeutic medium that Holly has not yet been exposed to so the potential benefits of it are that the use of water eliminates gravity because the water is warm and that can reduce adverse tonal responses and it can increase tolerance to passive stretches and other forms of movement

3 Further, Ms Hodgkinson did not consider that hydro-therapy was excluded for patients with tracheostomies 'as long as care and appropriate risk management is in place'

4 Dr Shakespeare did not specifically disavow hydrotherapy. Instead, he said:

The risks of hydrotherapy would be reduced were she to have a successful tracheostomy decannulation, as noted above there are plans over the coming months to try to progress this.

5 Prof Swash considered that it was a matter to be determined by a physiotherapist and a chest physician .

The fact that Miss Raper is doubly incontinent, has a peg fed tube in situ has little independent head and body control are not however, in themselves, contra indications to emersion in a Jacuzzi type pool.

On the balance of probabilities, Miss Raper would be unable to tolerate emersion in a Jacuzzi type pool without a great deal of preparation and this type of therapy would present some associated risks to her respiratory system.

Ultimately, Mr Domaille deferred to other medical opinion as to the suitability for hydrotherapy .

7 The therapeutic benefits of aquatic therapy for clients with a tracheostomy are set out in P46. The following is taken from the background at page 1 of that document:

the clinical effect of aquatic therapy is established. This is a recognised treatment for people with tracheostomies providing staff have been adequately trained and thorough risk assessments are completed.

8 The document goes on to detail a clinical risk management tool to assist clinicians in deciding whether a client with a tracheostomy is suitable for aquatic therapy.

9 Ms Hodgkinson's costings for neurophysiotherapy for hydrotherapy are set out at P45 (at approximately £20,000.00 per year if ongoing).

The size and likely price of the notional property is a matter of judgment. Mr Crosby, accepted that if Holly needed a property of the size contemplated by Mr Docker then both its price and the cost of the adaptations to it were reasonable.

In our submission, the Court should find that Holly needs a notional property of considerable size to meet her vast needs, in particular the need to live with her mother (while also enabling her mother some independence from Holly's quarters) and have a team of carers and other health care providers on the property as a place of employment. To these general considerations could be added the need for considerable storage for equipment and medical supplies.

On one side of the coin, the property is a home for Holly, not just a place to exist, and on the other side of the coin the property is a place of employment for what is effectively a small business, being the business of looking after Holly."

1. For reasons that I will come to shortly I am of the view that both the purchase cost of a suitable house and the costs of adaptions were grossly overstated by the chartered surveyor, Mr Docker, called by the plaintiff as an expert in housing for disabled persons, as indeed he was.
2. Mr Docker however was a most garrulous and pedantic witness who, as the defendants submit, adopted as the main thrust of his approach the proposition that he was "so incredibly well experienced" that he did not need to provide a full breakdown of his costings as had been done by the defendants' other expert called on this subject, Mr Crosby.
3. Mr Docker purported to rely upon his own experience, whereas Mr Crosby properly referred to standards prepared by a subsidiary of the Royal Institution of Chartered Surveyors.
4. Whilst I accept the defendants' submission I also accept the plaintiff's submission that while Mr Crosby's approach was to start with the minimum standard for wheelchair bound persons and to provide an up lift of 20% to the cost of adaptations, his starting premise was incorrect with the result that I should have concerns about whether the up lift was reasonable.
5. Nonetheless I am of the view that a proper approach is to assess the reasonable value of a suitable house and to adjust what I consider to be Mr Docker's excessive requirements for appropriate adaptions through the prism of Mr Crosby's conservatism. In taking this approach I have not lost sight of the fact that unlike Mr Docker, Mr Crosby lives with a catastrophically disabled sibling and has experience of the needs of a person such as Ms Raper.
6. As to a suitable house and necessary rooms, the defendants say that Ms Raper should only be entitled to recover for the needs flowing from her injuries and hence dining rooms, guest bedrooms and other "nice to haves should not be visited upon the Defendants".
7. They say that if the Ms Raper's bedroom is of sufficient size there is no need for a therapy room as there is no conclusive evidence as to the necessity of items additional to a tilt table, that might require such a room.
8. I agree. As will be seen my view is that a tilt table is a reasonable requirement but it would not require a separate room. Moreover the difficulty in transferring Ms Raper would militate against a tilt table being too far away from her bed.
9. The defendants say that there is no evidence to justify a hydrotherapy room particularised at £326,630, and that to the contrary Dr Shakespeare and Professors Swash and Ward opined that hydrotherapy treatment would be hazardous. I agree.
10. As can be seen above, Dr Shakespeare was of the view that hydrotherapy treatment involved risk unless Ms Raper had a successful tracheostomy decannualtion, and the evidence simply does not satisfy me that Ms Raper will achieve decannualtion. Past investigations have contraindicated the procedure and there is nothing but an aspiration that she might somehow improve to a point where she could tolerate a removal of the tracheostomy.
11. I accept that there is evidence that there are some recognised benefits of hydrotherapy for people with tracheostomies providing staff have adequate training. My assessment however is that Mrs Elaine Raper is a person who would not take any risks with her daughter's health. I would make no allowance for a hydrotherapy room.
12. The defendants argue that the plaintiff does not require a guest bedroom or access to the kitchen but even if those rooms were allowed there would be little increase to Mr Crosby's estimate of £200,000 for adaptions. I agree with the latter part of that submission but I accept that it is reasonable for Ms Raper's house to have the rooms set out above in the plaintiff's submissions except for separate lounge rooms, a hydrotherapy room and a Snoezelen room.
13. As to a Snoezelen room Ms Sheffield stated that snoezelen is a Dutch word that means to sleep and to doze, and it describes a multi-sensory environment where lighting and colour and music can be controlled. It is traditionally used with people with sensory problems usually children but increasingly it has been recognised as having a benefit for people with minimally conscious states and dementia.
14. However when it was suggested to her that whilst it might be pleasant there was no therapeutic benefit to it she replied that she was not qualified to comment on the therapeutic benefit because she had not done the research and did not know what the evidence base for it was.
15. Neuro-physiotherapist Ms Hodgkinson did not give evidence that in any way bore out the reasonable requirement of a multi-sensory environment. I reject the plaintiff's submission to that effect. No other evidence satisfies me as to the reasonable need for such a room.
16. Taking all of those matters into consideration I assess the plaintiff's damages under this head, that is, the purchase and related costs of a suitable house (including VAT) and reasonable alterations and adaptions to it, in the sum of £760,000 before betterment. That sum requires no reduction to take account of Ms Raper's housing requirements had she not been injured as appropriate deductions have been allowed when assessing loss of future earning capacity.

1. As to betterment the plaintiff submits as follows:

Although it is for the defendant to prove, there is evidence from Mr Docker to establish a reasonable deduction from the accommodation for the increased capital value in the notional property on account of the adaptations to it. In Potts, Porter J stated this is respect of such a deduction:

185 Before finalising the allowance to be made, I should mention the question of the modifications increasing the capital value of the property. Neither counsel addressed the issue under this head. More importantly, the defendant did not seek to show by evidence or argument that an increase in value would result: Wiedeck v Williams [1999] NSWCA 346. It may have been recognised that such modifications as those proposed would not increase the property's value: Rosecrance v Rosecrance [1995] NTSC 136; (1995) 105 NTR 1 at 21. Arguably, they may lessen the value, but put against that would be an increase in size and utility of the property. Even if there were an increase in capital value, in this case it would seem inappropriate to reduce the allowance to the plaintiff, because of the time at which such value would accrue, and because the modifications would deteriorate over time and require repair and maintenance: Marsland by his Tutor the Protective Commissioner of NSW v Andjelic (1993) 31 NSWLR 162 at 176; Nicholson v Nicholson (above) at 326 - 328. The latter is the subject of a later claim, but in any event for the reasons given, I will make no reduction to reflect an increase in capital value.

Given Mr Docker's evidence, the plaintiff accepts that an allowance for betterment is warranted for the cost of adaptations and modifications proposed by Mr Docker."

1. The plaintiff in the particulars under this head nominates a figure of £80,000 for betterment. The defendants did not make any criticism of that amount. In my view however that amount should be reduced to take account of my rejection of the claims for a hydrotherapy room and a Snoezelen room. I assess a suitable reduction for betterment to be £45,000.
2. I assess a total figure for accommodation costs, that is for the purchase and related costs of a suitable house (including VAT) and the reasonable alterations and adaptions to it, in the sum of £715,000 after reduction for betterment but before the addition of accommodation running costs and before reduction to take account of what would have been Ms Raper's housing costs had she not been injured.

1. The plaintiff's claim for accommodation running costs is particularised as follows:

The Running Costs for the residence (excluding a hydrotherapy annexe) total £11,955 pa

The running costs for a hydrotherapy annexe total £8,220 pa.

Discounted at 3% for 20.6 years, the claim for the combined Running costs is £312,324

"9.314 Mr Docker's running costs based upon his oversize building and hydrotherapy room are too high is particularised at between £11,955 and £8220 per annum and Mr Crosby's £5,328 per annum should be preferred. The Defendants should also only bear the costs of running the adaptions and extra space required as a result of the Plaintiff's injuries which have been costed by Mr Crosby at £2570 per annum.

9.315 The Plaintiff will receive a sizeable sum for future loss of income and that income would have been put towards the purchase of a house including associated costs such as stamp duty and moving costs. Intuitively, and based upon the house portrayed in Ex D10 and Ex D11, the larger more expensive a house the less the cost of modifications. Mr Crosby , at T 25-26, opined that house required only modest modifications and gave good reasons for rejecting the churlish criticism by Mr Docker of the houses suitability to meet the Plaintiff's needs. Furthermore the cost to house likely to be purchased by the Plaintiff should be subtracted from what the court determines to be the cost of a house suitable for adaption. Due to the paucity of evidence the best guide would be her parent's house valued by Mr Docker at £200,000.

9.316 Accordingly the damages to which the Plaintiff will be entitled for future accommodation needs are as follows;

9.316.1 Adaption and associated costs £210,000 allowing for VAT (if payable) of £27,000, professional fees and a 10% contingency: Ex D14 at pp 17-18.

1. Having found that a hydrotherapy annexe is not reasonably allowable it follows that the claim for £8,220 for its running costs may be ignored. I do not accept that the figure of £11,955 is reasonable. I prefer Mr Crosby's figure which I calculate from his written report to be in the sum of £6,028 per annum and not £5,328 as submitted by the defendants.
2. I do not accept the defendants' submission that they should only bear the costs of running the adaptions and extra space required as a result of Ms Raper's injuries as costed by Mr Crosby in the sum of £2,570 per annum. The reason is that I must make a reduction to the ultimate figure assessed for damages for future accommodation to take account of what would have been Ms Raper's housing costs had she not been injured. Such a deduction has already been included in the overall deduction for the lost years as the cost of housing fuel and power is a component of the ONS figures for household expenditure. However, I propose to take that component, namely £72.70, reduced by 30%, and use that as the basis for calculating the appropriate reduction from the costs of accommodation during Ms Raper's assessed life expectancy of 15 years.
3. Using a broad brush and working with Mr Crosby's approach as set out in his written report, I assess accommodation running costs in the sum of £75,000.
4. I assess a total figure therefore of £790,000 for accommodation costs, that is for the purchase and related costs of a suitable house (including VAT) and the reasonable alterations and adaptions to it, after reduction for betterment and after the addition of accommodation running costs but before reduction to take account of what would have been Ms Raper's housing costs during her present life expectancy had she not been injured.
5. After deduction for what would have been Ms Raper's housing costs for her present life expectancy of 15 years had she not been injured I assess the total of all damages related to the cost of future accommodation in the sum of £757,827.35.

1. The plaintiff's claim under this head is particularised as follows:

"Occupational Therapy and Speech & Language Therapy

Occupational Therapy 2 blocks of therapy over 6 months @ £11,315.00 per block: £22,630.00

SLT 2 blocks of therapy over initial 6 months @ £9240.00 per block: £18,480.00

A further 12 months at 2 sessions per week of an hour and a half each session @ £240.00 per session including travel time £24,960.00

Thereafter the need for ongoing OT and SLT will be reviewed. If the regime, at that time, continued the Plaintiff would claim @ £24,960.00 p.a. for her OT and SLT needs for the remainder of her life (18.6 years). Discounted at 3% (703.7 deferred) the claim is £337,776.

1. The plaintiff submits that it is important to note that Ms Raper has only recently received significant occupational therapy and speech and language therapy input and that this recent input has been instrumental in demonstrating Ms Raper's improvement and potential.
2. That may well be so, but the plaintiff can say no more than that all of Ms Raper's future therapeutic needs will be the subject of ongoing review and assessment, and that "some therapies may cease while other new ones may emerge".
3. I accept that it is common ground among many of the experts that Ms Raper requires a multi-disciplinary team of medical and care professionals, however that provides me with absolutely no basis for considering an allowance for future care in this area beyond the blocks of therapy proposed in the immediate future.
4. I am satisfied that such therapy is reasonable but I simply do not know what will happen at the conclusion of that treatment. Dr Shakespeare gave evidence that Ms Raper is likely to require occasional input from an occupational therapist in the future in relation to seating and equipment needs, and that she is likely to require consultation with a speech and language therapist as part of her assessment by a consultant physiotherapist in ventilation. Neurological occupational therapist, Ms Parry, gave evidence that Ms Raper would need occupational therapists and speech and language therapists to visit her "at least once in every 12 months".
5. Beyond that it is not appropriate for me to make any allowance for the future. To do so would be impermissible speculation. Regrettably Ms Gill-Thwaites' evidence does not assist me apart from the need for neuro-physiotherapy, where she was quite specific. That the plaintiff's action was brought on for trial before her future therapy needs, if any, had been fully determined is not something that should prejudice the defendants.
6. Accordingly I allow the sum of £90,000, which figure takes account of the fact that the costs involved for the "immediate" therapy and the therapy referred to by Dr Shakespeare and Ms Parry will be expended over a period of time.

1. The plaintiff's claim under this head is particularised as follows:

Ongoing treatment: 3 hours home visit per week = 156 hours per year

£6,396 Est. total travel (based on average £41 per visit per physio)

For 20.6 years, discounted at 3% the claim is £304,290.00".

1. Ms Gill-Thwaites' recommendation as to physiotherapy and neuro-physiotherapy was that due to Ms Raper's complex presentation she has physiotherapy needs for the long-term future to be delivered by fully trained specialists. She recommended specialist neuro-physiotherapy by way of two one hour treatment sessions per week in the long term. One treatment was recommended with two therapists to explore sitting in more challenging postures, and one treatment session was to be one therapist to explore sensory work and monitor passive ranges of movement.
2. The defendants submit as follows:

"The evidence of Mrs Raper at T 24 and Ms Orrell at T 19 is that carers perform stretching exercises with the Plaintiff (see also Ex D31 at p 5.160). The Plaintiff's physical progress, on the evidence of Mr Domaille, has been insufficient over the period from the date that the Plaintiff was discharged from Royal Preston Hospital, to warrant long term intervention.

9.139 Professor Ward stated that physiotherapy has concentrated on passive movements to reduce the Plaintiff's muscular tone: see report dated 11 April 2016. He stated:

'She needs to be stretched and I would consider that a once weekly approach would produce the same long-term effect as a twice-weekly input. The carers will be stretching the limbs to dress her and carry out other care tasks and the input of trained physiotherapists on a twice weekly basis is probably not required. In addition, only one trained therapist and a helper are required and the care staff could be involved in this rather than two staff from Neurocare.'"

1. The defendants further submit that I should adopt the recommendations of neuro-physiotherapist Mr Domaille, an expert called by them. Mr Domaille's evidence was considered and detailed and his expertise and experience were most impressive. In my view however his recommendations were unduly conservative and I would prefer, beyond the first two years of treatment, to view Ms Gill-Thwaites' recommendation through the prism of Professor Ward's evidence. I observe that Ms Gill-Thwaites was not cross-examined.
2. On that basis, discounting at 3% and using a life expectancy of 15 years, I would allow £118,043.20.
3. It follows that under a single head for all future therapy, that is, occupational, speech and language and neurological, I assess a total amount of £208,043.20.

1. The plaintiff's claim is particularised as follows:

"Tilt Table: 3 hours per week for 3 months = 36 hours total

For 20.6 years, discounted at 3% the claim is £70,220.00".

"9.142 Ms Hodgkinson agreed in evidence at T 28 that a tilt table would only be of benefit to the Plaintiff if she was in a physical state where she would be able to use it. Professor Ward gave evidence that a tilt table would not be particularly valuable to the Plaintiff because her truncal support is poor.

9.143 The Defendants submit that physiotherapy associated with a tilt table should not be awarded as damages".

1. I accept that Professor Ward felt that a tilt table might not be valuable because of poor truncal support, but in so saying he did not appear to me to grasp how a tilt table works. Ms Hodgkinson was a registered nurse and she explained that Ms Raper would be slid across from a lying position into a lying position on the tilt table, straps would then be put across in strategic places, usually across the chest, across the pelvis, across the knees and then the tilt table can be slowly brought upright gradually towards an upright position.
2. I specifically asked Ms Hodgkinson whether there was any impediment to Ms Raper utilising a tilt table. Ms Hodgkinson's answer was encapsulated in the following passage from the transcript of her evidence:

"NH: We have looked at tilt tables, access to tilt tables, access to outpatient's environments with tilt tables we've explored the options extensively in the last 2½ to 3 years Holly's environment is so restrictive that she can't fit a tilt table in her room let alone have the space to manoeuvre.

J: I understand that perfectly I visited on Monday and saw Holly's circumstances. So that's the only reason.

J: There's no physical impediment to her utilising a tilt table?

NH: We know that Holly has severe osteoporosis from the results of Dexa scans so we have again sought opinion of experts within the area as to how to mitigate the risks, we've written a plan for mitigation of risk which has the consent of her GP and her rehabilitation consultant and we will be happy to proceed with that treatment as soon as an option to do so physically and environmentally is available to us."

1. I allow the claim, discounted for 15 years at 3%. The total is £55,147.29.

1. The plaintiff's claim under this head is particularised as follows:

"Hydrotherapy: 3 hours per week for 3 months initially.

If on-going at the same need 156 hours per year £13,260 plus £6,396 travel (assuming home location)

For 20.6 years, discounted at 3% the claim is £304,290.00 plus £4,536.00".

1. For the reasons I have already given I am not satisfied that it is reasonable to allow for future hydrotherapy. I make no allowance under this head.

1. The plaintiff's claim under this head is particularised as follows:

"Wheelchair assess (sic): Approximately 1 hour per year, £85 plus approx £41 travel

For 20.6 years, discounted at 3% the claim is £1,905.00".

1. Wheelchair assessments would be carried out by occupational therapists according to Dr Shakespeare and I have already included an amount to cover such assessments under the head of future therapy.

1. The plaintiff's claim under this head is as follows:

"Splinting: Approximately 3 hours per year, £255 plus approx £123 travel.

For 20.6 years, discounted at 3% the claim is £5,387.00

MDT meetings: Approximately 6 hours per year, £510 plus appx £246 travel.

For 20.6 years, discounted at 3% the claim is £11,703.00

For 20.6 years, discounted at 3% the claim is £7,895.00".

9.148 The Defendants submit that the Plaintiff receives splinting through the Lancashire Teaching Hospitals NHS Trust and given the opinion of Mr Domaille and Professor Ward as to her future requirements, it is not reasonably necessary for the physiotherapists to attend orthotists appointments.

9.149 The Defendants submit that Mr Domaille has allowed for meetings in his assessment at Ex D31 and a further allowance is not reasonably necessary.

9.150 The Defendants submit that Mr Domaille has allowed for report writing in his assessment at Ex D31 and a further allowance is not reasonably necessary.

405 . I accept the evidence of Professor Ward and Mr Domaille and I accept defendants' submission and make no allowance under this head.

406. The plaintiff's claim under this head is as follows:

The Plaintiff requires between 2 and 4 regular outpatient appointments with a Neuro Rehabilitation Physician each year @ £100 per visit . The Plaintiff claims £300.00 per annum.

For 20.6 years, discounted at 3% the claim is £4,644.00

1. The defendants dispute this claim on the basis that the services will be free to the plaintiff through the NHS.
2. For the reasons already given I do not accept that submission.
3. I allow a total under this head discounted at 3% for 15 years. The sum is £3,647.30.

1. The plaintiff's claim under this head is particularised as follows:

Replacement Costs Every 5 years = £15.96 pw = £17,102.12 for 20.6 years, discounted at 3% the claim is £12,847.00

9.177 While the Defendants accept that the Plaintiff will require a wheelchair for the remainder of her life, they submit that a powered wheelchair would be of no benefit to her: see Professor Ward, T 613.37. For a carer to operate it would be unsafe [Professor Swash, T 517.1].

9.178 The Plaintiff has chosen not to produce evidence of the cost of a manual wheelchair, nor its renewal schedule. The Defendants submit that the Plaintiff would require no more than two to three wheelchairs over the course of her life and a manual attendant wheelchair with power pack would be appropriate.

9.179 Further and in the alternative, the Defendants state that the Plaintiff has been supplied with a wheelchair by the NHS and would continue to be eligible to receive replacement wheelchairs during the course of her life, given that her level of disability will not change and she will remain a tetraplegic."

1. Ms Raper has a powered wheelchair at present and it is obviously of use to her carers and thus to her if it facilitates more efficient movement. I allow the claim.
2. Discounted at 3% for 15 years the total is £10,089.91.

1. The plaintiff's claim is particularised as follows:

"Provision of electric standing frame as alternative to a tilt table

Replace every five years = £15.15 per week for 20.6 years, discounted at 3% the claim is £12,195.00

9.180 The Defendants say that the costs of a standing frame should not be awarded as damages. The evidence of experts and Dr Shakespeare is that the Plaintiff cannot stand without assistance. Professor Ward (at T 614.46 and T 615.47) gave evidence that a standing frame would not only be not very valuable but would also be unwise because the Plaintiff would be in a position to fall from it. The Defendants submit that the Plaintiff will derive no therapeutic benefit from a standing frame, and damages for it ought not be allowed"

1. Ms Hodgkinson gave evidence about this as follows:

"To work with a standing frame I would say that the patient has to have reasonable sitting balance with minimal support and that would require the assistance of probably the hoist or three people to bring into sitting in Holly's case. I feel she doesn't have a sitting balance at this time to then put the straps and so on and so forth into place so it wouldn't be my aid of choice."

1. The plaintiff's claim is particularised as follows:

Replace every two years = £11.03 per week, discounted at 3% the claim is £8,879.00

9.181 The Defendants accept that the Plaintiff will need a headrest for her wheelchair. However, when her wheelchair is to be replaced, it should have a new headrest as part of that replacement. The Defendants submit that the Plaintiff will need no more than 4 headrests over the course of her life, assuming a wheelchair is replaced every five years."

1. I apprehend that Ms Raper's headrests will need changing more regularly than the defendant's submit. Ms Parry gave evidence that Ms Raper had quite strong reflexive movements making wear to the headrest quite high. She thought replacement would probably be required every two years.
2. I allow the sum claimed but discounted at 3% over 15 years. The resultant figure is £6,973.16.

1. The plaintiff's claim is particularised as follows:

"Assessment from Tobii Eyegaze Technology or similar

Plus Mounting System for chair £6035.00 plus VAT (£7242.00)

1. The defendants submit that the opinions of their witnesses, Professor Swash, Professor Ward and ophthalmic surgeon, Dr Delaney, should be accepted and the plaintiff should not be awarded damages for this device.
2. The plaintiff submits as follows:

"The 24th recommendation in her [Ms Gill-Thwaites] report was for an assessment for the use Tobii eye gaze technology.

The defendant's attack on the use of Tobii Eye Gaze Technology was premised on a misunderstanding that the technology requires a high level of awareness in order to be of any benefit. Mrs Gill-Thwaites, in a report (P55) at page 35, sets out the benefit of an assessment for the use of such equipment or similar equipment. Within the context of a 10 session program over a 5 week period a trial could be conducted of the Tobii Eye Gaze Technology to indicate:

(b) assessment of accuracy of visual focusing and tracking;

(c) assessment of cause and effect with technology i.e. maintain gaze on item provides visual and auditory reward;

(d) assessment of visual discrimination of named objects and then in making choices or yes/no responses if deemed appropriate.

Ms Kent gave evidence about the potential for a person in Holly's position to communicate:

'So it's also important in terms of looking at people's ability to communicate in a use switches or to use eye pointing techniques or eye gaze techniques to be able to communicate and express a preference because this is a very important thing for somebody's quality of life, if somebody is able to communicate and able to express some wishes.

Prof Swash gave evidence that Holly was capable of a fixed gaze. Prof Ward gave evidence that Holly had voluntary movement of the eye rather than nystagmus (a reflex response). As noted above, Ms Parry gave evidence that Holly could consistently differentiate between red and green cards.

All of the evidence supports a conclusion that Holly has at least the potential to use equipment of this type and an assessment of its suitability is reasonable, particularly given the benefits that would accrue to her and her family if it (or like equipment) could be used for a level of communication.'"

1. I accept the plaintiff's submissions. There could not, in my view, be anything more important in what remains of Ms Raper's life than to be able to communicate at even the most basic level. At the moment no one knows whether Ms Raper is in fact able to use her eyes in any consistent and meaningful way. On that basis an assessment such as that proposed is, in my view, more than reasonable, it is an essential next step.
2. The following exchanges during the evidence of Mr Delaney are to the point:

"MR COX: (Resuming) I understand. So, if this persists, this - she retains this ability to see colours and differentiate between them, and you accept that she has a component of a vision or eye movement that's voluntary, it would follow wouldn't it that she could, if not fatigued, discern or select between different colours: does that follow?.........Not reliably.

Mm?.........The tests that have been done are simply not accurate enough to come to that conclusion.

HIS HONOUR: On Ms Rape, or generally speaking do you mean? What tests are you talking about?

WITNESS: - carried out is just not accurate enough. The other tests that were attempted by the other - Mr Dominelli, set it up in a way that would have been more scientifically accurate with multiple tests repeated 12 times.

HIS HONOUR: Mm. But it must follow as a matter of medical science, mustn't it, that if a person has the ability to distinguish, say, between red and green and the ability to - to control some eye movement that there's a window to communication?

WITNESS: Potentially. I've got my doubts as to how much control there was of that eye movement, and -

HIS HONOUR: Because we don't - we don't know. I mean the tests might have been -

HIS HONOUR: - accurate, they might not have been. But nobody can tell us what the true situation is.

1. If there is by any chance a means to discover whether Ms Raper has the capacity for reliable visual discernment then, in my view, any available assessment should be carried out.
2. I allow the claim in the sum of £18,002.40.

Replace every 10 years = £2.59 per week, discounted at 3% the claim is £2,084.00

1. The claim is reasonable and should be allowed in the adjusted sum of £2,959.08.

1. The plaintiff's claim is particularised as follows:

1. The defendants submit that I am unable to be satisfied that such a device is reasonably necessary. Given that I have held that hydrotherapy is improbable for Ms Raper I accept that submission. No award is made under this head.

1. The plaintiff claims £8,000 under this head. For the reasons already given no allowance is made.

1. The plaintiff's claim under this head is as follows:

The evidence demonstrates that the plaintiff may have numerous other medical and care related needs from providers including, a Dietician, Respiratory Specialist, GP, Postural Therapist, Orthotist, Neuro Psychologist, Neuro Ophthalmologist, Communication therapists, specialists in visual and auditory therapy and the like.

In addition, there is consensus that the Plaintiff requires a team of health care professionals and that the team should meet regularly.

Finally, the Plaintiff will also have the need for various therapy programmes (such as those recommended by Mrs Gill - Thwaites) that are yet to be conducted.

The Plaintiff claims the sum of £150,000 on an in globo basis for other future therapies and related needs

"9.127 As a preliminary matter, the Defendants submit that the panoply of future therapies and future equipment that are claimed derive from reports of a number of allied health professionals, primarily Ms Gill-Thwaites. The recommendations of a number of these persons are either in conflict with each other, or with the opinions of medical specialists, including but not limited to the treating rehabilitationist, Dr Shakespeare.

9.128 Professor Ward stated in evidence that specialist rehabilitation of someone with a prolonged disorder of consciousness would require the input of all members of a multi-disciplinary team, and that consists of a consultant in rehabilitation medicine, who was the most appropriate physician to deal with physiotherapy, occupational therapy, speech and language therapy, particularly from a swallowing aspect. In Professor Ward's opinion, the team would be under the clinical care of a consultant in rehabilitation medicine, who bears responsibility for the ongoing management of the patient.

9.129 Mrs Raper gave evidence that the Plaintiff would continue under the care of Dr Shakespeare. Dr Shakespeare is the Plaintiff's rehabilitation specialist and treatment and any devices prescribed should be co-ordinated under his management though Lancashire Teaching Hospitals NHS Trust."

1. As I have rejected the proposition that the plaintiff is obliged to resort to the NHS some allowance should be made under this head, however, an amount of £150,000 for "uncosted" future therapies appears to me to be grossly excessive and counter intuitive. The amount allowed for all "costed" future therapy, that is, occupational, speech and language and neurological is only £208,043.20.
2. Nonetheless the evidence overall would suggest that Ms Raper may need a number of medical interventions in the future, particularly if she gains or loses weight or suffers from infections, most likely life threatening chest infections. I allow a total sum of £20,000 under this head.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff needs a suitable vehicle, such as a VW Caravelle Executive.

The plaintiff claims £14,744 for life, discounted at 3% is £228,249.00 plus £63,646 = Total: £291,895.00".

1. The plaintiff's submissions under this head are as follows:

"Holly's transport needs and the reasonable value thereof - the claim for the past has been accepted by the defendants. It is in the sum of £93,696 (P37) to 31st May 2016 and continuing to the date of judgment at £89.00 a day.

To date, Holly has rarely been able to leave her home, despite having a vehicle fit to transport her. Her ability to access sensory stimulus outside her home is dependent on suitable transport to get her, her parents and carers to places of interest to Holly. The evidence from Mr Kiely established the price to purchase a similar vehicle to the one she has.

The defendants say Holly's transport costs should be met through a government subsidised scheme (Motobility) and, in any event, a vehicle at a lower price is reasonable.

For the reasons set out under the section entitled 'pecuniary losses' any benefit that accrues to Holly via the Motobility Scheme should be disregarded.

The vehicle proposed by Mr Kiely for purchase is reasonable for the following reasons:

1. it is the same vehicle that Holly has used (albeit a newer model) without complaint or difficulty;
2. Mr Kiely and Elaine tested that vehicle (the VW Caravelle) and found it to be suitable for Holly's needs, including climate adjustment in the rear of the vehicle;
3. Holly requires a vehicle, modified with a lower floor to enable wheelchair access;
4. the vehicles provided by Motobility may not have the necessary modifications to the chassis to lower the floor and provide wheelchair access;

v the modifications to the vehicle require replacing every 5 years;

The defendants' criticism of Mr Kiely - to the effect that he profited from the short term lease arrangement - was grossly unfair. He gave evidence that he was not approached to change 'that vehicle or look for alternatives' and he provided a quote for the purchase of a suitable vehicle (rather than continuing a lease) on 4th July 2013, within months of entering into the lease arrangement with Elaine Raper."

"9.281 The Plaintiff claims a need for a vehicle such as a VW Caravelle Executive but when considering the evidence of Ms Dennehy, including her comment at T 14, is clear that such a vehicle is a desire rather than a need. In any event the Plaintiff's needs can be most effectively met by the Motobility Scheme.

9.282 The evidence of Mr Kiely should be completely disregarded as it is clear from his past behaviour that is a man not to be trusted or believed because the way he has grossly overcharged the Plaintiff and now seeks to justify such charges. It is pertinent to note that Ms Dennehy was able to obtain a quote for a similar vehicle being rented to the Plaintiff from Mr Kiely's organisation for a significantly lesser sum. Mr Kiely was charging on average £2823 per month plus insurance whereas Angel Vehicle Hire would provide a similar vehicle for £1278 per month including full insurance (Ex D5, p 5).

9.283 Mr Kiely did not even check the far cheaper quotes obtained by Ms Dennehy despite being in receipt of her report (T 9). The only inference that can be drawn is that he knew that if he checked her quotes he would find that they were accurate and confirm his overcharging. Furthermore his failure to check leaves Ms Dennehy's evidence uncontradicted on that point.

9.284 Mr Kiely was dismissive of the Motobility Scheme but all his 'concerns' were comprehensively refuted by Ms Dennehy who was very experienced in the relevant areas. As she noted (T 11);

'Personally if I was in that position I would always use the Motobility Scheme it's an absolutely fabulous scheme. All you have to do is put fuel and oil in your vehicle, it is insured, the tyres are covered, there is a breakdown cover for you, when they service it they'll come and collect it and take it away because of Holly's predicament, you know, it's seamless.'

9.285 She noted that you'd never come across a situation where a vehicle is not available suit a person's particular needs and also noted that it was the largest motor vehicle leasing company in Europe with 501 models available from different providers (p5).

9.286 The cost for the Plaintiff of using the Scheme for a five year period was an upfront payment of £5415 (Ex D5 p10) and the foregoing of £14,937 of the Plaintiff's higher rate component of a disability living allowance.

9.287 Because of the limited mileage that the vehicle would do (bearing in mind that to date it has done only 5000 miles per year and we don't know how many miles it had travelled before being rented to the Plaintiff) Ms Dennehy disputed Mr Kiely's requirement for a replacement vehicle every five years, even allowing for the wear and tear of the internal equipment the precise nature of which was not articulated by Mr Kiely. The evidence suggests that the vehicle would travel only about 2,000 miles per year with a running cost for fuel of between £227 and £260 per year depending on the size of the engine (Ex D6, p 5). It also should be noted that it would be far cheaper to replace the interior harnesses than the entire vehicle and there would not seem to any other interior equipment that would wear prematurely.

9.288 Assuming that a new vehicle is acquired every five years and a 15 year life expectancy the total cost for future transport will be £61,957.05. This amount will be considerably lower if, as is highly likely, the vehicle was to be retained for any period longer than five years. A small charge for valeting could also be allowed but bearing in mind the limited use of the vehicle that amount should be no more than £200 per year adding a further £3000 to the above cost.

9.289 Ms Dennehy also notes that if a vehicle was to be purchased it would be a waste of money purchasing a Caravelle rather than a transporter and at T 5 stated:

'My professional view is that the Caravelle is marketed in the UK as a luxury people carrier, it's a high-end vehicle with lots of sort of additional features, a lot of the inside of the vehicle has to be ripped out and actually just thrown away to enable conversion to a wheelchair accessible vehicle to take place. So I wouldn't recommend it on that precedent alone, the other thing is I believe that a lot of the features and refinements on the Caravelle are such that they're just desires people may purchase as a passenger carrier.'

9.290 If the court finds that the Plaintiff should be compensated for the cost of purchasing a motor once again any estimates provided by Mr Kiely should be disregarded.

9.291 Ms Dennehy obtain quotes for appropriate vehicle for £30,500 from Atlas Mobility Conversions and £28,920 from GM coach works. Allowing for a vehicle changeover period of 7½ years the annual purchase costs will be £4067 and £3856 respectively to which would have to be added fuel costs of up to £260 per year, insurance of say, £800 per year and valeting of £200 per year resulting in a maximum annual cost of £5327 or £79,905 over a 15 year period. The Motobility Scheme is clearly a cheaper and more convenient option and it would be unreasonable for the Defendants to be required to pay more than that option.

9.292 There will be an insurance cost per year about which there was no conclusive evidence as we were not aware of the Plaintiffs driving record. The Plaintiff has particularised this cost at £1136 per annum but as a charge covered by the Motobility Scheme it would not be relevant if the court accepts the submission that this is the most reasonable option."

1. I agree that the criticism of transport consultant Mr Kiely is unfair, however it is apparent that the plaintiff has been paying far more than is necessary for transport.
2. I accept the defendants' submission that the Motobility Scheme is the most reasonable means of the plaintiff paying for the cost of her future transport. Ms Dennehy was a very experienced assessor for people with disabilities in respect of their ability to drive or to be carried as a passenger. She was a most impressive witness. She was in no doubt as to the quality of the Motobility Scheme. She described it "as an absolutely fabulous scheme". She said it was "seamless".
3. In my view it would be objectively unreasonable for the plaintiff not to avail herself of the facilities of Motobility. The situation is quite unlike the position with future care where, irrespective of any other considerations, it was both objectively and subjectively unreasonable to require the plaintiff to rely on the NHS. Nor is there, in my view, any subjective reason for the plaintiff not to use the Motobility Scheme. Not to do so would be a failure to mitigate her damage.
4. The Motobility Scheme enables disabled recipients to lease a new car for five years by sacrificing their government funded allowance, in the case of Ms Raper some £57.45 per week, and in addition paying an advance payment, in the case of a Volkswagen Caravelle an amount £10,995.
5. At the end of the five year period there are various options open to a person leasing the vehicle. They can apply to buy the vehicle from the scheme, or they can simply hand the vehicle back and then lease another vehicle, paying another advance payment and again sacrificing the government funded allowance of £57.45 a week.
6. In my view it is not unreasonable for the plaintiff's vehicle of choice to be a Volkswagen Caravelle, and in view of the obvious preference for reliable transport I would think that it would be reasonable for the plaintiff to take a new vehicle each five years.
7. On my calculations the future cost of a Volkswagen Caravelle leased now and then replaced each five years during the balance of Ms Raper's life expectancy, discounted at 3%, results in a sum of £64,000. To that figure must be added valeting which I allow at £3,000 and mileage at £4,500.
8. I allow for future transport the sum of £71,500. However, from this sum there needs to be deducted an amount to represent Ms Raper's transport costs during her present life expectancy had she not been injured. I assess that amount in the sum of ₤24,315.38. The resultant total amount under this head is ₤47,184.62.

1. The plaintiff's claim is particularised as follows:

The Plaintiffs needs daily medical supplies (as above) at a cost of £225.00 per week or £11,700.00 per annum.

The plaintiffs claim for 20.6 years, discounted at 3% the claim is £181,125.00

"9.208 The Plaintiff claims the sum of £225.00 per week for medical supplies.

9.209 The Defendants say that the NHS will continue to meet the Plaintiff's need for medical supplies.

9.210 Further and in the alternative, the Defendants say that if cost per week is based upon a revised schedule prepared by Ms Kirby, in respect of which she was extensively cross-examined, it should be reduced significantly for contingencies if accepted. The calculation is as follows:-

9.211.1 £250.72 x 504.9 = £126,588.53 (3% multiplier).

9.211.2 £250.72 x 456.0 = £114,328.32 (5% multiplier).

9.212.1 £250.72 x 632.3 = £158,530.26 (3% multiplier).

9.212.2 £250.72 x 555.0 = £139,149.60 (5% multiplier)."

1. I view this claim in the same category vis-à-vis the NHS as I do for the claim for future transport vis-à-vis the Motobility Scheme. I regard this claim as completely different to the claim for future care as regards the NHS.
2. There is no objective or subjective reason for the plaintiff not to continue to avail herself of free medical supplies. Unlike the situation with respect to future care there is no suggestion on the evidence that the plaintiff would move away from the NHS to privately fund the purchase of medical supplies. Moreover there is no suggestion that the provision of free medical supplies is related to Ms Raper's package of care such that the severing of ties with the NHS in respect of care would have ramifications for the provision of supplies.
3. Thus while fully appreciating the needs based nature of the plaintiff's claim, and irrespective of whether the intent of the NHS legislation was or was not that the relevant benefits were to be in addition to and not in diminution of the plaintiff's entitlement to recover from the defendants, my conclusion is that a failure by the plaintiff to avail herself of free medical supplies would constitute a failure to mitigate her damage. I make no allowance under this head.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff needs domestic cleaning @ £3500 per annum for 20.6 years, discounted at 3% the claim is £54,182.00

1. The defendants agree this claim in the sum of £42,560.11 which I accordingly allow.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff claims the reasonable cost of the need for holidays, outings, excursions and special events, including the additional cost of transport, accommodation and incidentals for the Plaintiff, her carers and parents. The claim is made on the basis that the plaintiff needs 2 holidays annually, on the mainland United Kingdom, each of a week's duration, and will have weekly outings and excursions and occasional special events such as attending family celebrations or age appropriate events such as festivals, shows and the like."

"The Plaintiff makes a claim of £150,000 for two holidays a year for herself, her carers and her parents, and for weekly outings, excursions and special events such as attending family celebrations or age appropriate events, such as festivals and shows. There is no evidence of the extra costs of holidays and attendance at events and the Defendants object to an ambit claim which is not properly particularised.

9.278 Mrs Raper gave evidence at T 10 that one holiday was taken by the Plaintiff and her carers to Central Parcs. The destination was about an hour's drive from Chorley. She agreed in cross examination at T 12 that it did not make any difference to the Plaintiff whether she was on holiday in a destination other than Chorley or closer to Chorley.

9.279 There is no evidence that outings in and around Chorley have resulted in any extra expenditure by reason of the Plaintiff's disabilities.

9.280 There is no evidence that the Plaintiff has attended family celebrations, or has any intention of doing so. There is no evidence that the Plaintiff has attended festivals or age appropriate events, or has any intention of doing so. In any event, the Defendants submit that the nature of the Plaintiff's disabilities are such that she would have little, if any, awareness of these type of functions."

1. This claim is completely unsubstantiated in my view. Ms Raper will have around the clock care by two carers and will have a suitable wheelchair and adapted motor vehicle allowed for by way of awards of damages under separate heads. There is no evidence that the costs associated with any holiday or excursion would be any greater than had Ms Raper been uninjured. I make no allowance under this head.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff needs the following equipment and will be required to meet the following replacement costs

In addition the court needs to make allowance for the additional equipment referred to above the cost of which is not the subject of direct evidence. The plaintiff claims the capital cost of such equipment at £ 5000.00 with an annual replacement cost of £1000.00.

For replacement costs for 20.6 years, discounted at 3% the claim is £114,106.00

9.191 There is no evidence that the Plaintiff requires a Consolor seating system. The highest at which this claim is put is that Ms Gill-Thwaites' report states that seating ought be reviewed by an expert OT/PT. There is no evidence as to what should be supplied, why it is required, who should provide it and the cost of same. The Plaintiff has had seating assessments performed for her wheelchair and the prescriptions for seating should be determined by the multi-disciplinary team.

9.192 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.

9.193 The highest the claim is put is that in Ms Gill-Thwaites' report, a number of sleep systems had been trialled and were unsatisfactory and it was recommended that further trials be undertaken. The Defendants submit that the Court cannot be satisfied that such a device is reasonably necessary, given the lack of evidence.

9.194 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.

9.195 The Particulars rely on the transcript of Mrs Raper at T 32 in support of this claim. However, Mrs Raper's evidence went to her search to find a holiday location with a profiling bed, which is what Central Parcs had.

9.196 According to Ms Raper's evidence at T 19, the NHS provided a hospital bed and mattress when the Plaintiff was discharged from Royal Preston Hospital. No evidence was led of any problems with the current bed, nor has any expert stated that it should be replaced.

9.197 First, the Defendants state that as the NHS supplied a bed in the past, the Plaintiff would be entitled to receive replacements during the course of her life.

9.198 Second, there is no evidence as to what should be supplied, when it should be replaced, who should provide it and the cost of same. The Defendants submit that the Court cannot be satisfied that such a device is reasonably necessary, given the lack of evidence.

9.199 The Defendants submit that the claim is capable of assessment but the Plaintiff has chosen not to tender evidence of the costs. The Defendants object to an in globo award on that basis.

9.200 A claim is made for three hoists at £5,000 each. Ms Parry agreed in evidence in chief that the cost of a ceiling hoist was £2,150 plus VAT. However, her equipment report does not refer to ceiling hoists. The Defendants concede that ceiling hoists would be required in her modified accommodation, but Mr Crosby makes allowance for these in his report.

9.201 The Defendants agree that the Plaintiff should have a shower chair.

9.202 The Defendants submit that the following costs are appropriate:

9.205 The Defendants submit that the evidence of Professor Ward should be preferred and the Plaintiff should not be awarded damages for this item."

1. I am not satisfied on the evidence that the three hoists claimed will need replacement as regularly as is suggested. I am not satisfied that a Motomed is reasonably required given the level of care and physiotherapy allowed for. I am not satisfied of the need for a profiling bed. I have already rejected the need for a sleep system. I allow £40,000 under this head.

1. The plaintiff's claim under this head is particularised as follows:

Finally, there is also evidence that the Plaintiff has and needs a Suction Machine and a Portable Suction machine. A further modest allowance is claimed for this equipment and the possibility the Plaintiff may need alternate other equipment and aids in the future.

9.206 The Defendants object to the claim for a suction machine and portable suction machine set out in the Particulars. This claim is not particularised and no costs are given. These devices are stated to be based upon evidence of Ms Parry, however, it does not appear in Ex P52, nor is it in her testimony.

9.207 Further, the Defendants submit that any such device ought be prescribed by the Plaintiff's doctor."

1. Irrespective of whether or not such machines should be prescribed by a doctor I have no basis for an award under this head and none is made.

1. The plaintiff's claim under this head is particularised as follows:

The plaintiff's injuries have led to an increased need for washing, towels, linen, toiletries, domestic cleaning products and the like. The plaintiff claims the reasonable costs for these increased needs. The plaintiff claims the sum of £156.70 per month (£1880.40 per year) for life .

The Plaintiff claims £1880.40 x 20.6, discounted at 3% the claim is £29,110.00

9.317 On p 28 of the Particulars, an ambit claim is made for reasonable costs of washing, clothes, linen, toiletries, domestic cleaning products and the like. The Defendants object to an ambit claim and the failure to particularise it.

9.318 Further, on pp 25 and 27 of the Particulars the Plaintiff claims global awards for future needs.

9.319 The Defendants object to any in globo award. Damages are once and for all and if the Plaintiff's condition had not stabilised, sufficient for all heads of damage to be particularised, the matter should not have been set down for trial until each future need could be properly identified and quantified.

9.320 Further, the Defendants submit that various of the claims were capable of assessment but the Plaintiff chose not to tender evidence of the need and the costs. The Defendants object to an in globo award on that basis."

1. This claim mirrors the past claim for "toiletries and sundries". Adjusted to a life expectancy of 15 years I allow the sum of ₤22,531.07.

1. The defendants have paid worker's compensation payments to and for the plaintiff. The quantum of the appropriate reduction to the damages I have assessed as set out below is ₤319,213.

1. The plaintiff's claim under this head is particularised as follows:

The Plaintiff also claims the cost of managing the fruits of this action for the duration of her life. The fund for this purpose includes the additional sum sought for managing the further sum recovered for the cost of managing the fund pursuant to the principles in Gray v Richards [2014] HCA40. The Plaintiff claims an additional [8.365%] under this head".

9.328 The Plaintiff's expert, Mr Sands, agreed that 1.2% was in the appropriate range for the cost of ongoing charges for managing the fund and the Defendants submit that is the appropriate rate on which to calculate funds management costs ... ."

1. The amount allowed under this head is ₤477,714.60.

1. For these reasons, there will be judgment for the plaintiff and subject to hearing counsel I assess the plaintiff's damages in the sum of £6,970,426.00 calculated as follows: