AKRAM H****
and
SALEEM K****

SETTLEMENT REPORT

Damages for C7 tetraplegia

1. Mr Akram H**** was born on the 20th July 1971 and so was 21 at the date of the accident on the 28th April 1993. He is now 28.
   LIABILITY
2. Judgment was entered for the Claimant for 75% on the 9th February 1998. The reason for the discount was twofold; first, the Claimant was not wearing a seat belt and, secondly, he was being carried in a car which had been hired fraudulently by a friend or acquaintance of his, who had been drinking.
   QUANTUM
3. The Claimant sustained fractures of his 4th and 5th vertebrae, and there is now a complete spastic tetraplegia below the level of the 7th cervical segment. He has no motor power in the fingers or thumbs, and has lost grip in both hands, as well as precision and fine power movements. He has normal biceps power and reduced triceps, wrist extensor and wrist flexor power.
4. The multiplier issue has been decided by the Court of Appeal at 3%. We would have sought to present a technical argument that the discount rate should be 2%, in order to preserve our right of appeal, but we would have presented the claim on the basis of 3%. Tables 11 onwards of the Ogden Tables should be, and were, used, as decided in several reported cases.
5. The claim for past loss of earnings was put on the basis that the Claimant would have got a semi-skilled job by the 1st July 1993, two months after the date of the accident, and a gradually increasing income was suggested. The Defendants sought to blacken the Claimant's character by alleging that his conduct in relation to the accident was and is indicative of his lifestyle. They only raised this issue in clear terms when we sought an order that they should not be allowed to make this allegation inferentially, and they took no steps to prove the substance of their allegations. It had always been the Claimant's case that he was blameless in relation to the hiring of the car (and the contrary had never been suggested seriously), and he denied that he had the opportunity to get out of the car once the driver started to drive inappropriately. He had evidence available to show that he could not have known that the driver was unfit to drive through drink.
6. The real issue was the Claimant's career path had he not been injured. He did not have a good work record before the accident, but it was our case that, as he matured, he would have settled down into generally steady work. The question was likely to be how long that process would have taken, and whether it would have led to an averagely good job.
7. Past care was costed by Miss Bingley for the Claimant. She has been the care manager at Southport for many years, and so has specialised knowledge of the care requirements of paralysed people. Miss Lund, on the other hand, the defence expert on care, is an occupational therapist, not a nurse, and her CV reveals no evidence of specialisation in, or experience of, paralysis. There is an issue between the experts as to the correct rate at which care should be costed.
8. The other issue was whether a Housecroft v Burnett deduction should be made from the commercial valuation of the care which had been given, to reflect the fact that the family do not have to pay tax and national insurance. We would have submitted that this is one of the cases where such a deduction should not be made, because the care had been of an exceptionally high standard, given by many family members, at all hours of the day and night, dealing with intimate and unpleasant aspects of daily life. We would have relied on the case of Lamey, cited in Kemp at A4-015/1, in which I appeared.
9. Turning to future loss of earnings, we postulated an average career path for the Claimant, with a retirement age of 62.5. The Defendants were not prepared to compromise retirement at that age, but insist on arguing for 60 (without evidence?). They then sought a deduction of 33% from the award to reflect "the fact that the Claimant was likely to have a spasmodic and unstable employment history", despite their expert's comment that "He is a likeable man with a sense of humour and one can well imagine that once in his 20s and as the labour market improved, so would his job history.". Perhaps their best position was a few sentences later in that report: ".... there are also reasons to consider that he would never have been in a national average position and that he would have remained vulnerable to future periods of unemployment".
10. The real issue in the case was the need for, and extent of, future care. Our claim was for a little over £2 million, compared to £175,000 suggested by the Defendants. The Defendants' first position is that the overwhelming likelihood is that the Claimant will continue to be looked after by his family. That was obviously a matter of impression for the Court, but nowadays families may be less ready to shoulder such a heavy burden, especially when a sensible and reasonable alternative is available which will allow them all to return to their family relationships, as distinct from devoting their lives to care. Their next point was illogical and contrary to authority, namely that, because the Claimant would receive only 75% of the full assessment, therefore he should not be compensated for a regime which he is unlikely to be able to adopt. The real contest between the parties was as to the nature and cost of the appropriate regime. Miss Bingley gave a careful costing, based on her enormous experience, whereas Miss Lund suggested either 38.5 or 44.5 hours a week; it may be worth emphasising that the Claimant is tetraplegic, and needs 24 hour presence and care.
11. The big difference between the experts over mobility and equipment probably arose from the selection of different vehicles and wheelchairs; Chrysler Voyager against Ford Transit van, and Permobil against an unspecified chair. I found it surprising that it should be asserted by the defence expert that it would cost only £18,000 to £20,000 to buy and adapt a vehicle so that the Claimant can drive it himself whilst sitting in his wheelchair, and can also passenger in it in his wheelchair, at the same time transporting family, friends and luggage.
12. Our figures were as follows:
    

    Pain, suffering and loss of amenity	175,000
    Interest	24,000
    Past loss of earnings	40,000
    Past care	120,000
    Past adaptations and increased heating	4,000
    Interest	45,000
    Future loss of earnings	200,000
    Future professional care to age 55	187,000
    Future residential professional care from age 55	640,000
    Future physiotherapy	40,000
    Future mobility and equipment	100,000
    Future occupational therapy, equipment and additional costs	200,000
    Housing costs	150,000

13. The Defendant made a payment into court of 1,033,466 on the 4th October 1999, followed by £1,733,466 on the 2nd May 2000 (£2,311,288 at 100%). We settled for £50,000 more than that two days before trial.

11th May 2000

BILL BRAITHWAITE Q.C. Exchange Chambers Liverpool and Manchester.