Burton v Kingsbury
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE FLAUX,Mr Justice Flaux |
| Judgment Date | 13 September 2007 |
| Neutral Citation | [2007] EWHC 2091 (QB) |
| Court | Queen's Bench Division |
| Date | 13 September 2007 |
| Docket Number | Case No: HQ06X03415 |
[2007] EWHC 2091 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Flaux
Case No: HQ06X03415
Mr W. Stevenson QC and Mr Andrew Davis (instructed by Eric Robinson Solicitors) for the Claimant
Mr Edward Faulks QC and Mr John Bate-Williams (instructed by E. L. Murphy & Co) for the Defendant
Hearing dates: 16 – 25 July 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Flaux
I. Introduction
This case concerns a claim for personal injuries arising out of a road traffic accident which occurred on 15 August 2001. The Claimant, who was 18 at the time, was the front seat passenger in a car being driven by his friend Guy Kingsbury, near Waterlooville, Hampshire. His girlfriend, Jennifer Haynes, who is now his wife, was in the rear of the car. They were all wearing seatbelts. The car crossed four lanes of traffic and rolled down a bank some 20 feet. The Claimant was trapped in the car and sustained very serious injuries. He was rendered a C4 quadriplegic. He is wheelchair dependent and is unable to use any part of his body below his shoulders. Fortunately he survived the accident with his mental capacity intact. He is clearly a strong-willed young man who has faced his disability with courage and a determination to live as full a life as possible.
Liability was eventually admitted by the Defendant immediately before the trial of the issue of liability on 11 April 2005. The trial before me has concerned issues of quantum. Although certain aspects of the claim are accepted the main areas of quantum as regards general damages, special damages and future loss have remained in dispute throughout.
II Factual background
At the time of the accident, the Claimant had been working for slightly less than five months as a self-employed window fitter with another man, Lee Thomas, on various sites in London and then the Portsmouth area. This was a job in which he was intending to continue for the foreseeable future.
In the immediate aftermath of the accident, he was at the Queen Alexandra Hospital at Cosham. He developed a chest infection and a tracheostomy was performed on 17 August 2001 to assist his breathing. On 21 August 2001, he was transferred to the intensive care department of the specialist spinal unit at Salisbury District Hospital (sometimes known as Odstock).
He remained at Odstock for almost two years until June 2003, although the treatment which the unit was able to provide had been provided within the first year. The problem was that suitable accommodation had not been provided by the local authority to enable him to be discharged into the community. His mother, assisted by Miss Hampshire of his solicitors, wrote letters to the local councillor and to the local MP, Mr David Willetts, who in turn corresponded with Hampshire County Council. In due course, through the efforts of his mother and of a lady called Barbara Humphries of Hampshire Social Services, accommodation at 11 Matthews Place, a property owned by a Housing Association which was just round the corner from his mother's house, was located and a care package was put in place, provided by a reputable agency called Active Assistance. This care package is funded by a contribution from the Independent Living Fund (ILF) but otherwise by contributions in a 60:40 ratio from Hampshire County Council and the local Primary Healthcare Trust respectively.
The Claimant was discharged into the community in June 2003 and lived at 11 Matthews Place with Miss Haynes. The care package provided involves a permanent resident carer who stays for five weeks or so at a time and then has two weeks off. During those periods of leave, the agency supplies temporary replacement carers, although rarely, if ever, is it the same temporary carer. This regime is the one which has remained in place until now and which the Claimant hopes to change with the damages award from this case.
Somewhat to the surprise of the medical experts who gave evidence in the case, he and Miss Haynes were able to conceive a child naturally. Their son Cameron was born on 6 June 2004. They hope to have more children although the doctors consider this unlikely without some form of fertility treatment.
The property at Matthews Place was never really suitable, given that it was relatively small, but the problems with it became all the more acute with the arrival of a baby. As already referred to above, in April 2005, the Defendant admitted liability and a substantial interim payment of £350,000 was paid to the Claimant (two earlier interim payments had been made in May 2003 and February 2005 of £25,000 on each occasion). It was not until the substantial interim payment in April 2005 that he and Miss Haynes could begin looking for a new home. They began a long and somewhat dispiriting search for a suitable house to buy in the area. At first, estate agents would not take them seriously given their relative youth and it took letters from Miss Hampshire of the Claimant's solicitors explaining the circumstances, for them to receive any sort of sensible response from estate agents.
Perhaps unsurprisingly, they were then deluged with particulars of properties on the books of all the agents they had contacted, whether those properties were suitable or not. Miss Haynes viewed, sometimes with the Claimant, a large number of properties but none was suitable. Ideally they wanted a bungalow but there were very few on the market. If possible, they also wanted separate accommodation for the carer or at least sufficient flexibility to ensure that the carer was not living in the midst of their family. Eventually, in August 2005, they found a bungalow on the market for £595,000, which seemed suitable. Their offer of £585,000 was accepted, but after complications with planning permission, they were gazumped and the purchase fell through.
After further searching they found the property in which they now live. They paid £600,000 for the property, which is a bungalow and has three advantages so far as the Claimant's physical condition is concerned: a garden on the level, an indoor swimming pool and an existing separate annex for the carer. They moved there in February 2006 and have lived there since. The Claimant and Miss Haynes were married on 8 July 2007, shortly before the trial commenced.
III General damages
In relation to quadriplegia, the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries 8 th edition gives a range of awards which (updated somewhat for inflation) is from £190,000 to £237,250. The Guidelines state:
“The level of the award within the bracket will be affected by the following considerations:
(i) the extent of any residual movement;
(ii) the presence and extent of any pain;
(iii) depression;
(iv) age and life expectancy.
The top of the bracket will be appropriate only where there is significant effect on senses or ability to communicate. It will also often involve significant brain damage: see 2(A) (a).”
Both sides called evidence on the medical issues including the issue of life expectancy (to which I return below) from medical experts who are eminent in the field of spinal cord injuries: Mr Brian Gardner, consultant surgeon at Stoke Mandeville Hospital for the Claimant and Mr Anthony Tromans, Spinal Injury Consultant at the Duke of Cornwall Spinal Treatment Centre at Salisbury District Hospital (Odstock) for the Defendant.
Of relevance to the assessment of general damages are their views as to where the Claimant fits within the cohort of victims of accidents which have caused quadriplegia. Mr Gardner's view was that whilst there were quadriplegics who were substantially worse than the Claimant, there were equally C5-C8 quadriplegics who were better than the Claimant, in that they had residual movement in their arms and were able to propel themselves in their wheelchairs. Mr Gardner placed the Claimant at the worse end of the spectrum, certainly in the worse half of quadriplegics generally. Mr Tromans accepted that the Claimant fitted in to the higher range at the C4 level and did not disagree with Mr Gardner as to where the Claimant was on the overall scale.
Mr Stevenson QC for the Claimant accepted that the Claimant was not at the top of the range of possible awards for general damages, since he is not ventilated and his senses are unimpaired. However, relying on the fact that there are C5-C8 quadriplegics who are in better physical condition than the Claimant, he submitted that the Claimant was about one third of the way down from the top of the range. With the impact of inflation on the range of awards, he urged upon me an award for pain and suffering and loss of amenity caused by the quadriplegia of £230,000. As a separate point, he invited me to award £10,000 for the unsightly scar in the Claimant's neck from the tracheostomy, something which understandably causes him embarrassment, so that he always wears high necked shirts.
Mr Faulks QC for the Defendant fairly accepted that the Claimant is at the worse end of the scale in terms of disability, but pointed out that there was no evidence that he was suffering from depression, that his senses and ability to communicate were unimpaired and that he has no brain damage, so that, as the Guidelines say, the top of the bracket would not be appropriate here. The figure for which he contends is some £196,000. He did not address me on the question of a separate award for the scar.
As with a number of...
To continue reading
Request your trial
-
James Robshaw (a child by his mother and Litigation Friend Suzanne Adams) v United Lincolnshire Hospitals NHS Trust
...particular importance to my finding that the Claimant will use his award to purchase high quality care and medical services." 121 Burton v Kingsbury [2007] EWHC 2091 (QB) was another case in which a young man was rendered a C4 quadriplegic in a road traffic accident. The experts on life ......
-
Leo Whiten (A protected party suing by his Mother and Litigation Friend, Samantha Nowell) v St George's Healthcare NHS Trust
...the sixth edition of the Ogden Tables was published and the advice contained in Paragraph 20 appeared for the first time. In Anthony Burton v Guy Francis Kingsbury [2007] EWHC 2091 (QB), Flaux J considered the appropriate whole life multiplier for an 18 year old paraplegic whom he had found......
-
Stephen Mays (a Protected Party by his Litigation Friend, the Official Solicitor) v Drive Force (UK) Ltd
...[2002] PIQR Q10 and is an approach that has been followed in other cases such as Sarwar v Ali [2007] EWHC 274 (QB) (Lloyd-Jones J), Burton v Kingsbury [2007] EWHC 2091 (QB)(Flaux J) and Lewis v Royal Shrewsbury Hospital NHS Trust [2007] 1 WLUK 628 (Sir Alistair MacDuff); (ii) There are a ......
-
X v A Strategic Health Authority
...so a double recovery. It was agreed that there was nothing that I could do to prevent that. The problem was considered by Flaux J in Burton v Kingsbury [2007] EWHC 2091 (QB), paragraphs 93 to 110, citing Freeman v Lockett [2006 EWHC 1002 (QB) and Crofton v NHS Litigation Authority [2007] 1 ......