On 30th July 1999 Mrs Justice Hale gave judgment for the Claimant for £1,418,282, having spent 3 days hearing evidence on quantum.

The Claimant, who was born on 22nd November 1972 and so was 21 at the date of the road traffic accident on 17th June 1994, and was 26 at trial, suffered a very severe brain injury. His post-traumatic amnesia was about 4-5 weeks. There was no appreciable long term impairment of his physical abilities, or even his general intelligence, but, as his mother said: "If you spend a whole day in Scott's company, you see what's wrong with him. I'm having to get to know Scott again and I find it hard.". She gave vivid illustrations of his impulsivity and behavioural difficulties, and his problems in sustaining relationships even with his own family (he had effectively alienated his sisters). About a year after the accident, there were persisting impairments of cognitive functioning, especially short term memory, quite significant emotional and personality problems, moderate depression and severe anxiety, increased irritability, explosive temperament, a lack of pre-accident control, but quite a reasonable degree of insight. Specialist rehabilitation was recommended, and the Claimant went to the Transitional Rehabilitation Unit (TRU) in 1995. He has remained there ever since, and the Judge decided that that was an appropriate placement. At the time of trial, he had graduated (through a failed attempt at independent living, and two attempted suicides) to living in a four person cooperative living house owned by TRU, where 24 hour cover was provided. In addition, he had a work placement in the TRU workshop, and one to one support of coaches for 10-15 hours a week.

General damages for pain, suffering and loss of amenity were agreed at £85,000.00.

The first interesting issue which arose at trial was whether the Defendants should be permitted to adduce the evidence of a care expert whose report was disclosed 4 weeks before trial, even though it had been available to the defence for 6 months before that. The application to call this witness had to be viewed in the light of the defence having abandoned their neurologist just before trial, and having obtained psychiatric evidence which they never disclosed, and care evidence from a different expert whom they abandoned late in the day. The Judge decided that, when the Claimant's legal advisers considered whether to instruct a separate care expert, it was reasonable for them to draw the inference that, because the second care expert's report had not been disclosed, the defence were not relying on that witness. The Judge accepted that, had we known that the Defendants were proposing to rely upon that care expert, we certainly would have considered getting our own care report, and probably would not have taken the risk of doing without one. The Judge emphasised the overriding objective that cases should be dealt with "justly", and considered Mortgage Corporation v Sandoes The Times, 27.12.96, and Mealey Horgan Corp. v Horgan The Times, 6.7.99. She concluded that, although we accepted that the Defendants were not deliberately taking a tactical advantage, but that late disclosure had undoubtedly put us at some disadvantage, nevertheless she would allow the witness to be called. Possibly the main reason why she came to that conclusion was that the evidence of the second care expert was "unlikely to weigh heavily against the more expert views available on each side" (i.e. from the medically qualified experts, and those experienced in long term management of patients following brain injury). She felt that, where it is clear that a party has adopted a selective approach to the evidence of the experts consulted, it must be open to the Court to take that into account in considering what weight to attach to the opinions of those experts whose evidence is adduced.

The real issue between the parties was whether the placement at TRU was appropriate for the rest of the Claimant's life, and whether he should leave his work placement at TRU and find work elsewhere, possibly with Remploy. The Claimant's experts were Doctor Jackson, the Clinical Director of TRU, (whom the Judge described as "an impressive witness. He was sensible and down to earth. He has a personal interest (and indirectly a financial interest as Director of TRU) but he knows Scott better than any of the other experts. He has seen him over time, unlike others who have only seen a snap shot. All the other witnesses speak very highly of Doctor Jackson and of the unit which he has developed, which is one of the best if not the best in the country. He is thoroughly committed to the goals of maximising his client's independence and integration into ordinary life, but he has also made a realistic assessment of the prospects in this case"), Doctor Rose, described as "highly experienced in neuro-psychiatric rehabilitation", and Doctor Ghadiali, neuro-psychologist. On the other hand, the defence expert, Doctor Scheepers considered that "the level of supervision and support required by Mr Jenkins will gradually diminish with time" and "indeed it is unlikely that he will continue to accept the level of support recommended". Doctor Scheepers raised the possibility of marriage in his report (suggesting inferentially that marriage would reduce the amount of care required), but in evidence he accepted that research suggests that this is highly unlikely. In the end, Doctor Scheepers explained that what appeared in his report to be opinions about the future were in fact simply suggestions for clinical discussion, and not predictions of what probably could be achieved. The Judge said that, in that way, his evidence was entirely different from that of the Claimant's experts, who were drawing on a wealth of experience to make predictions as to what it was likely that Mr Jenkins would need in the future. She concluded that, when the defence witnesses' evidence was judged against that of Doctor Jackson, Doctor Ghadiali and Doctor Rose, all of whom have extensive experience in attempts to rehabilitate brain injured people and were attempting to make realistic predictions, the latter is much more compelling.

Another area of real interest was the deductions to be made from the award, in accordance with Lim Poh Choo. Without going into the precise detail of how the TRU charges were made up, perhaps the most important point to note is that, when deducting the "domestic element" from the final award, it is important to distinguish between the pre-accident domestic element and the post-accident domestic element. Reading the speech of Lord Scarman in that case, set out in Kemp at 10-023, it might be thought that it is the pre-accident domestic element which ought to be deducted, namely the amount which the Claimant would have spent out of his earnings on maintaining himself and his family, had he not been injured. However, it does seem to be the case that what should be deducted is the domestic element of the present (i.e. post-accident) cost of care.

Finally, we argued for the Claimant that the multipliers should be calculated on a discount rate of 2%, and relied on the newspaper report in The Times of the 3rd May 1999, now also to be read in the current edition of Quantum, the Kemp & Kemp service. The Judge did not believe that I seriously expected her to adopt my invitation, however tempting it may be, giving as her reason that the majority of their Lordships in Wells considered that any future changes should be determined by the Lord Chancellor, and that, only if there were a dramatic change in economic conditions, should the Courts act on their own initiative. She said that it did not seem to her that any such dramatic change had yet taken place. I have to say that I would disagree, and it is quite clear from reading the article by Sir Michael Ogden in Quantum, that he also would disagree, as apparently would the Government actuary, who is one of the members of the Ogden Working Party.

BILL BRAITHWAITE Q.C. and NICHOLAS WOODWARD were instructed by Keith Jones of E. A. Harris & Co of Shotton.

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