Huntley v Simmonds
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 13 February 2009 |
| Neutral Citation | [2009] EWHC 405 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ/06X0342 |
| Date | 13 February 2009 |
[2009] EWHC 405 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Underhill
Case No: HQ/06X0342
Mr David Wilby QC and Mr Paul Dean (instructed by Blake Lapthorn) for the Claimant
Mr Ronald Walker QC and Mr Nigel Lewers (instructed by Irwin Mitchell) for the Defendant
Hearing dates: 10–14 and 21 November 2008, 13 February 2009
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 Underhill:
The Claimant is now aged 27. On 20 th June 2004, when he was 22, he was a passenger in a car being driven by the Defendant which went out of control and crashed. He suffered serious injuries. The Defendant has admitted liability, and the matter comes before me for an assessment of damages.
I shall have in due course to give a full account of the Claimant's injuries and their consequences. At this stage I need only say that the principal injury consisted of serious brain damage, as a result of which the Claimant has major cognitive and behavioural problems. He may be capable of some degree of independent living – just how much is a matter of controversy – but at present he has the support of paid helpers, referred to either as carers or support workers, on a daily basis. He is a protected person and brings these proceedings through the deputy appointed by the Court of Protection, Ms Alison McClure, acting as his litigation friend.
The Claimant has been represented before me by Mr. David Wilby QC leading Mr. Paul Dean. The Defendant has been represented by Mr. Ronald Walker QC, leading Mr. Nigel Lewers.
It is convenient to identify at this stage the expert witnesses from whom I had evidence. They were (in the case of each speciality naming the Claimant's expert first): Dr. Nicholas Leng and Professor John Beaumont, consultant neuropsychologists; Dr. Michael Gross and Dr. Oliver Foster, consultant neurologists; Dr. Jonathan Bird and Dr. Mark Upton, consultant neuropsychiatrists; and, on the care issues, Ms. Jo Clark-Wilson and Mr. Derek Blackshaw. Each of the experts had produced more than one report, and in the case of each speciality there was a joint statement. I heard oral evidence from all the experts save Dr. Leng and Professor Beaumont: in their case the parties were agreed that in view of the contents of their joint statement they need not attend (though as to this see para. 54 below).
THE CLAIMANT'S LIFE PRIOR TO THE ACCIDENT
The Claimant grew up on a council estate in Hilsea, on the outskirts of Portsmouth. His mother, Joanne Smith, was only sixteen when he was born and living with her parents; and when, while he was still very young, she married and left home the Claimant remained with his grandparents because both she and her husband (who was not the Claimant's father) had to work. The Claimant remained living at his grandparents' home up to the date of the accident (though his grandmother died in 2001). However his mother, who lived only a couple of miles away in Cosham, remained very fully involved with his upbringing; and indeed latterly, as her father became seriously ill, she spent a lot of time at the house as his carer.
The Claimant's teenage years were troubled. He was expelled from school at about the age of twelve for fighting and received no further schooling thereafter. From about the age of fifteen he worked as a building labourer, doing mostly groundwork; but the work was only intermittent. He drank a good deal and regularly got “paralytic” at the weekends. He also took drugs. He told Dr Bird that he used to take “everything” (except heroin): that may not be entirely reliable, but there is clear evidence of his using cocaine, cannabis and benzodiazepines. The evidence of his mother and other witnesses was that his drug use was “recreational”, and that may be correct in the sense that he does not appear to have become addicted to any substance; but the evidence nevertheless suggests that his drug-taking was frequent and quite heavy. The Defendant's case is that the Claimant also had a violent and aggressive temperament. As to that, according to his mother, the Claimant could indeed be “vile” in the way that he spoke to people: he could not only be foul-mouthed and offensive but also use threatening and aggressive language. But she said that that was not translated into actual violent behaviour. It may well be true that the Claimant's aggression during this time was more often verbal than physical; but I cannot accept that he never engaged in actual violence. It was his mother's own evidence that he was in trouble with the police on a number of occasions. Unfortunately the details are not known. The only conviction disclosed by the Criminal Records Office was in November 2003, for a drink-driving offence: he was disqualified from driving for three years and his (provisional) driving licence was ordered to be endorsed. However there was certainly an episode, when he was aged about eighteen, when the Claimant was ordered to do community service and was tagged for eight months and subjected to a curfew: he and his mother told Dr Bird that that was the result of his being “done for fighting”. There are suggestions in the medical notes and reports that “fighting” was a cause of other encounters with the police. It is also relevant that the Claimant had a collection of what were described as Samurai swords and of other knives; and that, following the accident, a knuckleduster was found in his pocket.
When these aspects of the Claimant's character prior to the accident were elicited in cross-examination of his mother and other witnesses (though in truth they were to a considerable extent already apparent from the expert reports), Mr. Wilby complained that Mr. Walker was attempting “character assassination”. That is not a legitimate criticism. The matters in question are clearly relevant to matters which I shall have to decide, in particular the claim for loss of earnings. But it is fair to point out that the evidence of one of carers, Roma Adams, who knew him before the accident and who struck me as a fair and sensible witness, was that his behaviour was not out of the ordinary for a teenage boy from his background. As she put it in her oral evidence before me:
“He wasn't a bad person. He did what everyone gets up to. It was more dabbling – what boys do. All young boys fight: it is part of growing up.”
She added that he was “a nice boy”, friendly and funny and very attractive to girls. He had lots of confidence: he would joke a lot and be “cheeky”. He enjoyed the usual activities of a teenager of his background, including motocross and ferreting.
Despite his somewhat unsettled home life and disrupted schooling, there were positive influences on the Claimant. His mother struck me as a hard-working and strong woman; and although her early parenting might have left something to be desired, I am sure she tried to keep him out of serious trouble. He had a large family, and his mother described the local community in Cosham and Hilsea as friendly and supportive –“like a little East Enders community”. It was her evidence that the Claimant had already begun to settle down by the time of the accident. She thought that the change started at about the time that he was tagged. There may, again, be some truth in this, but it would certainly be wrong to describe the Claimant as having become a reformed character. The episode of drink-driving was less than a year before the accident. As I have mentioned, he was carrying a knuckleduster when the accident occurred; and there were also traces of cocaine and benzodiazepine in his blood. Nevertheless, I am prepared to accept that he had settled down to some extent, as is common enough for boys entering their twenties. He had a steady girlfriend and was working, if not on a permanent basis, at least for long stretches, sufficient to give him enough money for his needs. It is fair to note that although he had had the encounters with the police to which I have referred he had never served a custodial sentence.
THE CLAIMANT'S INJURIES AND INITIAL TREATMENT
The Claimant's main injury was damage to the brain. He was in a deep coma (initially rated at 3 on the Glasgow scale) for 42 days. The principal areas of damage were to the frontal lobes, but there was also damage to the left parietal region and other parts of the brain. The damage is permanent. I shall have to say more in due course about the cognitive and behavioural consequences, but it is convenient at this stage to set out in full (save for the formal parts) the helpful joint statement of the two neuropsychological experts, Dr. Leng and Professor Beaumont:-
3. Mr Hopkins sustained no less than a very severe traumatic brain injury in the accident in question. This included damage to the frontal lobes of the brain.
4. He suffers from a frontal lobe dysexecutive syndrome.
5. There is clear evidence that Mr Hopkins suffered from pre-accident behavioural problems, with illicit drug taking and a forensic history, but the evidence suggests that he was beginning to settle down, as he was engaged in ground work and had developed a relationship with a girlfriend. The effect of his traumatic brain injury has been to worsen pre-existing behavioural and personality traits.
6. Prior to the accident Mr Hopkins was probably of borderline to low average intellectual abilities. However, this is not an exact determination in his case, given the difficulties he presented with at school.
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