Jack Farrugia (A Protected Party by his Mother and Litigation Friend Lorraine Farrugia) v Steven Burtenshaw and Others

JurisdictionEngland & Wales
JudgeMr Justice Jay
Judgment Date08 April 2014
Neutral Citation[2014] EWHC 1036 (QB)
CourtQueen's Bench Division
Date08 April 2014
Docket NumberCase No: HQ09X04497

[2014] EWHC 1036 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case No: HQ09X04497

Between:
Jack Farrugia (A Protected Party by his Mother and Litigation Friend Lorraine Farrugia)
Claimant
and
(1) Steven Burtenshaw
(2) The Motor Insurers Bureau (in substitution for Zurich Insurance PLC)
(3) Quinn Insurance Limited
Defendants

Nicholas Heathcote Williams QC and William Latimer-Sayer (instructed by Stewarts Law LLP) for the Claimant

Nicholas Braslavsky QC (instructed by Lyons Davidson) for the Third Defendant

Hearing dates: 18 th– 21 st March 2014

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 Jay

Introduction

1

This is a claim for damages for personal injuries following a catastrophic road traffic accident which occurred on 7 th November 2008. The Claimant, who was born on 24 th August 1991, was aged 17 at the time of the accident and is now aged 22. The brief circumstances of the accident were that Jack (as I am now usually going to address him) was a front-seat passenger, wearing his seatbelt, in a car driven by the First Defendant. The driver lost control of the vehicle and a collision occurred on the wrong side of the road with a stationary van.

2

The issue of liability has been resolved in Jack's favour against the Third Defendant as the relevant "road traffic insurer" under Section 151 of the Road Traffic Act 1988. Issues arise as to the future solvency of the Third Defendant, which I will be explaining later. It follows from what I have said that this is a trial on the issue of quantum only.

3

In fact, the majority of the quantum issues have been resolved by agreement between the parties but the most valuable issue, that of future care and case management, has not; and there is a relatively small miscellany of other issues for me to decide. The agreed heads of claim require Court approval, and I understand that arrangements have already been made for this.

The Remaining Issues

4

At this stage it is convenient to list the issues which remain for judicial determination. These are:

i) Life Expectancy. The Third Defendant has no expert evidence of its own on this issue but has sought, in cross-examination, to undermine the opinion evidence of Jack's neurologist, Dr Richard Hardie. I should explain that the life expectancy issue is only relevant should I conclude that Jack is not entitled to damages by way of periodical payments.

ii) Future Care and Case Management. The parties have compromised the claim for past care, but are considerably apart – in financial terms but not in truth on issues of principle or approach – as to the future. They agree that Jack needs 24-hour care but they are not agreed as to the level of daytime and night-time care. This is the most important issue in the case for me to resolve. There are other less important care-related issues which I am also obliged to address.

iii) Periodical Payments. Here, there are two issues for me to address. The first issue is whether I am satisfied that the continuity of payment of any periodical payments ordered to be paid by the Third Defendant is "reasonably secure". The second issue is whether periodical payments are appropriate and in the Claimant's best interests: Mr Heathcote Williams QC confines his submissions that they are to the issues of (i) damages for future care and case management, and (ii) damages for future Court of Protection and Deputy's Costs (as to which the parties are agreed on the amounts).

iv) Provisional Damages. The Claimant's case is that damages for future care and case management, whether awarded as a lump sum or as periodical payments, should be provisional or variable (as the case may be) to reflect the contingency that he might develop uncontrolled epilepsy.

5

The parties are to be commended for having agreed the majority of the quantum issues in this case. As a result, a considerable amount of expense, of court time, and of personal stress has been spared. I should also record that the trial was conducted by Counsel with great economy, efficiency and skill such that the oral evidence and submissions occupied only 3 days of Court time. The issues which could not be resolved consensually are such that the need for judicial determination was always on the cards.

Jack's Injuries

6

Jack led an exemplary and admirable life before his accident. He was studying for a Level 3 BTEC Diploma in Sports Performance and Excellence at South Downs College. The Claimant's skeleton argument describes him – fairly and accurately in my view – as a confident, personable young man, a natural leader, and in excellent physical health and fitness. He had shown great promise as a footballer and it is probable that his career would have taken him in that direction, and/or towards sports or leisure management.

7

Jack sustained severe, life-changing injuries on 7 th November 2008. These have been set out in various places in the voluminous documentation before the Court, but for the present purposes I may read from paragraphs 1–12 of the Joint Statement of the expert neurologists, Dr Richard Hardie for the Claimant and Dr Oliver Foster for the Third Defendant, dated December 2013 [A/13/196–197]:

"1. On 7 th November 2008 when 17 years old the Claimant suffered a very severe traumatic brain injury with skull fracture, as well as various thoracic injuries including pneumothorax, rib fracture and pulmonary contusion.

3. As a result of the index injuries, he was in a coma for more than a month and required intensive care, assisted ventilation and active measures to reduce extremely elevated ICP. He suffered recurrent epileptic seizures despite prophylactic medication. He needed a tracheotomy for more than 7 months, remained a hospital in-patient for more than 12 months, and was eventually discharged home more than three years after the index event.

4. Secondary to the index injury, the Claimant has been left with multiple neurological impairments. These include severe global cognitive impairment; generalised and partial seizures; abnormal eye movements; anarthria and aphagia, i.e. inability to speak and swallow; asymmetric spastic tetraparesis; and double incontinence. The previously identified soft tissue contractures have improved considerably and the intrathecal baclofen pump is no longer operating.

5. The Claimant still has profound communication and physical disabilities, is doubly incontinent, requires total nursing care, and remains totally dependent upon artificial PEG feeding for all his nutrition and hydration. His bladder has to be catheterised intermittently but regularly to ensure complete emptying.

6. Given the extent of his intellectual impairments, the Claimant has lacked sufficient mental capacity both to litigate and to manage his property and affairs ever since the index event. He cannot understand or retain information to any useful extent, and he has great difficulty communicating. On the strong balance of probabilities this will remain the case permanently.

7. He has continued to suffer a combination of focal post-traumatic and infrequent generalised seizures attributable to his brain injury despite taking three different anti-epileptic drugs. It is likely that he will continue to suffer lifelong epilepsy, and the probability of remission is very low indeed.

9. In addition he continues to be susceptible to complications of immobility including kidney stones and frequent chest and urinary tract infections requiring antibiotics and hospitalisation on two recent occasions.

10. There is no likelihood of any further spontaneous improvement in the Claimant's condition at this stage more than four years since the index injury. For the avoidance of doubt, the Claimant will never be capable of any remunerative work in the future.

11. It is entirely appropriate that the Claimant now has accessible accommodation with his mother and brothers, and that he is supported by a 24-hour care package. There will be a lifelong requirement for case management. He will probably always need 24-hour support to meet all his care needs and to ensure his safety.

12. Because of his significant night care needs we consider that he should have at least one waking carer, and probably a second sleep-in carer. It is possible that his night care needs might reduce slightly over time. However, the Claimant's detailed future care needs should be the subject of a separate report by an appropriate care expert."

8

I had the benefit of observing Jack first hand; he wanted to be in Court whilst his mother, Mrs Lorraine Farrugia, was giving evidence. I need to remind myself that I am not an expert in these matters, but it did appear to me that Jack has some understanding of what is going on around him. The papers refer to Jack's "great sense of humour", and I observed flashes of that from his demeanour.

9

It is relevant that Jack is 195cm tall and weighs 92kgs. I have no doubt that he weighed less before his accident, but he is by no means obese now. He is, however, a large young man who must represent a considerable physical challenge to his carers. Sometimes, he lashes out when frustrated.

10

The events of 7 th November 2008, and their aftermath, have been a tragedy for this admirable young man and his family. Here, I am referring to his mother, Lorraine, and his father, Laurence, from whom I heard directly; and his two younger brothers Joe and Tom. These consequences have been both physical and psychological. Jack's parents — in particular Lorraine but I am certainly not overlooking Laurence —have worked tirelessly in his best interests. Fortunately for them, all the stress associated with this...

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