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19 June 2013
High Court, Queen's Bench Division
Mr Justice Kenneth Parker
The claimant who had been aged 12 at the date of accident and 22 at the date of assessment was severely injured in a road traffic accident. He suffered a skull fracture which resulted in damage to the left frontal lobe. In addition he fractured his left femur. As a consequence of the brain injury his powers of motivation, initiation and organisation were greatly reduced. Academically and socially he was vulnerable. It was argued that he lacked insight and had no capacity to litigate or manage his affairs. Liability was admitted, but quantum could not be agreed.
The claimant required a great deal of care and assistance from his mother initially before formal care was put into place. Subsequently he was moved to his own accommodation where evidence suggested he could only manage with support.
The trial judge was asked in carrying out his assessment of quantum to consider a number of issues, including whether the claimant lacked capacity to manage is own affairs and hold down some form of employment and also to make an order for provisional damages. He was also asked to disallow the claim for past care on the basis that the care package provided had been of a substandard level.
Experts for the defendants asserted the claimant had capacity within the meaning of section 2 of Mental Capacity Act 2005. The fact that he had made what they called ‘a few unwise decisions' did not, in their opinion render him lacking in capacity. They argued that with the right support and advice, he would be able to manage his affairs and make decisions for himself. This was contrary to the evidence adduced by the claimant from both expert and lay witnesses. It became clear during the trial that evidence strongly suggested the claimant could not manage his own affairs and his mother often made decisions for him. Unfortunately, the evidence of one of the claimant's experts, Professor Barnes was not considered as it was ‘unreliable'. Professor Barnes had in an earlier report concluded the claimant had capacity due to misinterpretation of reports from two of the claimant's other experts. He later changed his report to say the claimant lacked capacity, but was not able to explain how the earlier misunderstanding had arisen.
Mr Justice Parker concluded on the evidence the claimant lacked capacity. Masterman-Lister v Brutton & Co  EWCA Civ 1889 and Bailey v Warren  EWCA Civ 26 considered.
As for the care regime, it appeared that although a revised care package was to be implemented for the claimant, this was not done so for more than over a year after it was recommended. When a more structured care regime was eventually put into place which included sleep monitoring, the claimant was seen to be functioning better. The defendants argued that had such form of rehabilitation been in place sooner, the claimant would have benefited and his condition improved. Mr Justice Parker was reluctant to disallow the care claim in its entirety as he believed that would be ‘wholly disproportionate and unjust.' He did however, accept the defendants' argument had some merit and reduced the care claim by 20%.
Mr Justice Parker held that whilst the claimant was able to hold down a part time job in the past that had simply been due to the employers being very sympathetically. Realistically, in the future the claimant had no chance of holding down even a part time position and awarded the claimant £639,000 future loss of earnings.
The award for pain suffering and loss of amenity was assessed at £120,000 although the claimant "did not fit into the category for moderate brain damage, but he continued to suffer significant continuing effects from his injury."
An order for provisional damages was made as the claimant was at significant risk of developing post-traumatic epilepsy.
The court in this case was asked to consider all the relevant issues that normally arise in brain injury cases including the issue of capacity. However, perhaps the most alarming aspect here was the approach the court could have taken following the defendants argument that rehabilitation package was less than adequate. The care claim could have been reduced by more than 20% which would have been detrimental to the claimant. It does serve as a warning to those dealing with such cases that it is essential to ensure the right care and rehabilitation package is considered from the outset.
Such arguments are likely to be advanced more and more in the future. After all if a reduction of 20% could be applied in this case, what is there to say a higher reduction might not be applied by a different judge in another case? It might be a small windfall for the defendants, but could be highly damaging to claimants and their solicitors.
It goes without saying that the claimants best interests must be preserved at all times, including ensuring all experts have a clear understanding of other expert evidence.
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