Eagle v Chambers
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cooke |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWHC 3135 (QB) |
| Court | Queen's Bench Division |
| Date | 19 December 2003 |
| Docket Number | Case No: 03/TLQ/0167 |
[2003] EWHC 3135 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Cooke
Case No: 03/TLQ/0167
Robin de Wilde QC and Nicholas Leviseur (instructed by Chamberlins, Solicitors, Great Yarmouth) for the claimant
Edward Faulks QC and Angus Piper (instructed by Merricks, Solicitors, Chelmsford) for the defendant
Hearing dates: 8, 10, 11, 12, 15 and 16 December 2003
INTERIM JUDGMENT
Approved Interim 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.
Introduction
On 22 June 1989, the claimant, then aged 17, was walking along the middle of the southbound carriageway of Marine Parade, Great Yarmouth when she was hit by the defendant in his car. It was not until 19 November 2002 that the matter came to trial where, at first instance, the defendant was found liable but the claimant was held to be 60 per cent contributarily negligent. On 24 July 2003 the Court of Appeal allowed an appeal and substituted a finding of 40 per cent contributory negligence. As a result of the accident, the claimant sustained a severe head injury.
The experts consulted by the claimant and the defendant agree that the claimant suffered permanent brain damage leading to physical, cognitive and psychosocial changes. She had post-traumatic amnesia for a period in excess of two months and suffered a cerebral oedema, cerebral atrophy and hydrocephalus. As a result of the head injury, she had dense right hemiplegia and ataxic movement of the left arm and legs. After some improvement in her condition in the early years after the accident, there has been marked deterioration since 2001 when it was thought that she had suffered a stroke or a transient ischaemic attack associated with a grand mal seizure. Having heard the evidence of Dr Dick, I conclude that it is most likely that the 2001 deterioration was caused by "status epilepticus", a condition in which the patient suffers a series of epileptic seizures which prevent the flow of oxygen to the brain for a concerted period or cause nerve damage.
At one stage following the accident, the claimant was able to stand independently with a frame, using the left leg and was also able to operate an electric wheelchair. She has however over the years become increasingly immobile and can no longer do either of these things. Although at one time she was continent following the accident she now no longer is. She is now unable to do anything much for herself beyond eating and drinking with the aid of her left hand. She is severely mentally impaired. Where once she could participate in TV quiz shows, she can no longer do so. She has no functional day-to-day memory, being able to recall events in the previous hour but not much more.
The evidence of the claimant's neuropsychiatric expert was that prior to the accident the claimant's IQ was 86 (low average) and post accident she had a verbal IQ of 80. Her cognitive abilities were initially judged to be reasonably well preserved in the context of her physical disability but there has since been significant deterioration, so that this measure is now to all intents and purposes incapable of assessment, being somewhere below 70.
The claimant had a pre-accident history of behavioural problems. She had a poor relationship with her stepfather in adolescence and was expelled from school because of her behaviour. On a number of occasions in 1988 and 1999 she was found drunk lying in the road and on another occasion was admitted to hospital following an overdose of indomethacin and alcohol. At the time of the accident, she had apparently fallen out with her boyfriend and was deliberately walking down the middle of the road abusively rejecting the suggestions and warnings of passers-by that she should do otherwise. It was however common ground between the relevant experts that she would have been expected to overcome her behavioural difficulties by the age of 21. In consequence of the accident, she has however continuing behavioural problems. She has frequent outbursts of temper whenever she cannot get what she wants: she is disinhibited, attention seeking, volatile, demanding, aggressive and abusive. If her carers seek to wake her and get her up before she wishes to, she will be violent, biting them, punching them or throwing objects at them or round the room, such as the TV remote controller, a heavy ash tray or even the mobile table, She also has no drive or motivation and spends great parts of her waking time watching television and smoking cigarettes to the tune of 80 or so a day, although many of these are only half smoked or broken. She smokes incessantly, or plays with cigarettes, throwing them or dropping them on to the floor without any regard for the consequences.
After many admissions to hospital in 2001 with seizures, which may have been due to failure to take medication, and the probable onset of "status epilepticus" or a stroke, she was observed by her mother and carers to have deteriorated both mentally and physically, particularly in relation to communication skills, whilst the medical examinations thereafter confirmed that the claimant's condition was worse than previously.
The consultant neuropsychologist consulted by the claimant reported in May 2003 that the claimant had a range of neuropsychiatric and psychological deficits, with evidence of intermittent nominal aphasia (word finding difficulty), profound working (short term) memory difficulties, sufficient to meet criteria for an acquired dementia. She had profound difficulties in maintaining attention and maintaining focus with evidence of slowing of cognitive processes and significant changes in personality. His view and that of the consultant psychiatrist instructed by the defendant was that the difficulties which the claimant now faces principally those of memory disturbance and behaviour disturbance are entirely organic and caused by the accident in June 1989.
There are of course extremely difficult decisions to be made with regard to the future care regime of the claimant particularly as the funding available will only represent 60 per cent of that which would represent the amount the court otherwise finds to be appropriate compensation. In broad terms, however, the issues which I have to resolve in determining the level of compensation to be paid are as follows:
i) What is the claimant's expectation of life?
ii) Whether the claimant should be treated at the Kemsley Unit, where she has been since 20 November 2003 for an assessment as to her suitability for a rehabilitation course there.
iii) Whether, following any course at Kemsley, the claimant should continue to live at 7 Hassett Close, Norwich, where she has been for the last seven years with carers with whom she has an established relationship, or in other purpose adapted accommodation with carers, or in a residential unit for brain injured people.
iv) What sort of care regime should be set up in the light of my decision on iii) above? Questions arise as to the number, qualifications and type of carers to be involved.
v) What is the most suitable system of management for the claimant's financial affairs?
Before determining any of the issues it is worth reciting briefly the history of the claimant's treatment since the accident. She was unconscious on admission to James Paget Hospital on 22 June but was transferred on 23 June to the Neurosurgical Unit at Addenbrooke's Hospital where apart from a tracheostomy, there was no surgical intervention. She was returned to the James Paget Hospital on 20 July 1989 whilst still in a coma, She appeared to be drifting into a vegetative state but her neurological condition gradually improved until a CT scan showed evidence of cerebral atrophy and hydrocephalus and she was again admitted to Addenbrooke's in August or September 1989 for the insertion of a ventriculo-peritoneal shunt to control the development of the hydrocephalus. She was again returned to James Paget Hospital on 17 September 1989 where she made slow physical and neurological progress. Her mental state improved allowing her to concentrate for periods of up to one hour and by July 1999 she was considered ready to be referred for a period of rehabilitation. When seen by Dr Jenner, a consultant in rehabilitation on 18 September 1990, she was found to have limited mobility, She was confined to a wheelchair and required the help of two people for transfers and one for most activities of daily living. She was able to feed herself with her left hand which was mildly ataxic whilst her right arm lacked any function. She could not maintain standing balance although she had some movement in the right leg. In addition to her physical problems, her memory and recall were far from satisfactory and there were obvious constructional difficulties and concentration and behavioural problems. Her speech pattern showed marked dysarthria and her behaviour was marked by "excessive childishness". The prospects of rehabilitation, in his view, "must be extremely limited".
The claimant was admitted to the Walpole Lewin Rehabilitation Unit at Addenbrooke's on 19 November 1990 and received ten weeks' rehabilitation. She made some progress physically allowing transfers to be made by one person rather than two. Her sitting balance remained poor and her behavioural problems were a cause of concern with outbursts of angry behaviour. Cognitive impairment persisted, predominantly weakness of attention, memory and frontal lobe dysfunction. She could at that stage select clothes for herself and dress her top...
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