September 1996
CASE REPORT
Jason Rogers was born on the 22nd June 1973 and so was 17 when he was assaulted on the 20th April 1991. He is now 23.
Liability was accepted.
Jason sustained severe brain damage. His neurosurgeon did not expect a good outcome, and sadly that prognosis has been realised. The severity of the injury was emphasised by the neurosurgeon, who said "... it would probably have been better if he had been killed ...", and "I think he is going to require permanent institutional care in the next 5 years for the rest of his life ...". This view was repeated in 1994: "I really feel most strongly that Jason is getting to the stage where he is going to have to go into some form of institutional care.", and at the end of that year he thought "that, far from being better, Jason, if anything, is worse than he was.". In his final report he concluded that the Applicant needed a next friend and the help of the Court of Protection: an order was made appointing the Public Trustee as Receiver. The neurosurgeon eventually supported the notion of care in the community, and felt that the suggestion of institutional care (which is actually far more expensive) was of genuine concern to Jason, and would be cruel.
Our neuro-psychological report, by Dr Neil Brooks, gave a good description of the Applicant's behaviour, which was amplified by the Applicant's mother. Dr Brooks said that Jason will never be able to work or look after himself, and he suggested a care and case management regime which we adopted.
Those opinions gave a good impression of the effect of the injury on the Applicant.
It was our submission that the following cases in Kemp would be helpful in assessing pain, suffering and loss of amenity:-
| Ellis v Denton C2-002 | £70,000 now £91,412 |
| Narroway v Pendleton C2-003/1 | £85,000 now £90,271. |
We submitted that an appropriate award of general damages for pain, suffering and loss of amenity would be in the region of £90,000. The Board agreed.
Turning to the financial claim, and dealing first with past loss of earnings, the issue for the Board was whether the Applicant would have achieved the career progression as a semi-skilled fitter which was predicted by our accountants, or whether there were some negative factors to be taken into account (query solvent abuse). We suggested that one approach to reflect this point would be to deduct, say, the last one or two years' net earnings on the basis that Jason might not have been in full-time work between the assault and the hearing. That produced a figure in the region of £20,000 to £25,000 instead of the claimed £28,982, and the Board awarded £22,500.
The worth of past care was calculated by Cathy Johnson. The strain on Jason's parents had obviously been substantial, and the figure selected by the Board was £65,000.
So far as future loss of earnings was concerned, there were two major issues, namely the use of a 3% discount rate in the selection of the multiplier, and the assumption that the Applicant would have worked full-time for his entire life. The discount rate argument is currently being decided by the Court of Appeal (decision expected in October). The alternative, traditional rate is 4.5%, and I had the relevant figures available. However, the Chairman of the Board assured me that they used really traditional multipliers, not based on actuarial tables, and the figures he had in mind were 16 and 18. We suggested that, if the Board thought that the Applicant's prospects of work were worse than average, they could consider reducing the multiplier slightly. Because they preferred the non-actuarial approach, this was not relevant. The award was £160,000.
Future care requirements were set out and costed by Dr Brooks. There was the same multiplier issue. The Board assessed the appropriate figure as £400,000.
The claim for transport was for 3,000 extra miles a year in the sort of car which the Applicant would have had in any event: at 32.4p per mile, that would amount to £972 pa, or £24,668 in total, which was allowed at £25,000.
The applicant is capable of going to the same places on holiday as he would have done had he not been injured, and the extra cost was for taking carers with him: it probably would need two carers to accompany Jason, and therefore the cost would be substantial. The award was £35,000.
The accommodation claim depended on the Board's view whether there would be any extra cost involved in buying a house across the road from his parents, or whether that is the sort of house which the Applicant would have bought in any event. They thought that there would be some extra cost, based on our Roberts v Johnstone calculations, and decided on £16,000.
The Court of Protection costs were calculated with the Public Trustee as the Receiver, and the annual figure was over £4,000. This element was adjourned pending the Applicant's decision (by the Public Trustee) whether to take his damages by structured settlement.
| AWARD (excluding Court of Protection) | £925,000 |
| Less benefits | (£111,624) |
| TOTAL | £813,376 |
BILL BRAITHWAITE Q.C., instructed by Jeremy Taylor and Christine Campbell of Wace Morgan, Shrewsbury.
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