Jubair Ali (A Protected Party, by Jabid Ali his Father and Litigation Friend) (Claimant/Respondent and Cross-Appellant) v David Graham Caton and Another (Defendants/Second Defendant Appellant and Respondent to Cross-Appeal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Beatson,Lord Justice Tomlinson |
| Judgment Date | 15 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1313 |
| Date | 15 October 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2013/2586 |
[2014] EWCA Civ 1313
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEENS BENCH DIVISION
Mr Justice Stuart-Smith
HQ09X00376
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice McCombe
and
Lord Justice Beatson
Case No: B3/2013/2586
John Leighton-Williams QC and Andrew Wille (instructed by Neil Hudgell Solicitors) for the Claimant/Respondent and Cross-Appellant
Stephen Worthington QC and William Audland (instructed by BLM Solicitors) for the Second Defendant/Appellant and Respondent to Cross—Appeal
The First Defendant did not appear and was not represented
Hearing dates: 22–23 July 2013
(A) Introduction
We have had before us an appeal and cross-appeal from the order of Stuart-Smith J ("the judge") of 5 July 2013 whereby the judge made orders for payment of damages to the Claimant for personal injuries arising out of a road traffic accident which occurred on 30 January 2006 and in which the Claimant (then aged 17) was seriously injured. The issue of liability for the Claimant's injuries was agreed between the parties and was approved by the High Court as being 80% / 20% in the Claimant's favour, allowing for contributory negligence. The issues of quantification of damages were tried before the judge, over 12 days, between 3 and 18 December 2012. The judge delivered his careful 130 page and 345 paragraph judgment on 5 July 2013. The judge awarded the Claimant a net sum, after allowing for contributory negligence, CRU and interim payments of £998,902. By order of 23 July 2013 he awarded the Claimant a further sum of £24,340 in respect of past care and case management to 15 December 2013 and periodical payments (adjustable under ASHE 6115) of £14,529 p.a. for 20 years rising thereafter to £18,036 p.a. for the rest of the Claimant's life. We are told that if these periodical payments had been lump sum awards the global award, on a 100% liability basis, would have been a little over £2.3 million.
As will be understood from the short title of these proceedings, the First Defendant, whose driving was in issue in the action, was uninsured and has played no part in the proceedings either here or below. Accordingly, in the course of this judgment, I will call the present Appellant, the Motor Insurers' Bureau, "the Defendant".
The judge refused the Defendant permission to appeal. However, by orders dated 18 November 2013 and 9 April 2014, I granted permission to the Defendant to appeal and to the Claimant to cross-appeal.
In his judgment (at [2]), the judge described the central issue which he had had to try in these terms:
"The central issue to be determined by this judgment is the extent to which Jubair suffers and will continue to suffer lasting consequences attributable to the accident."
The judge identified four strands to the Defendant's case in support of a conclusion that the Claimant's deficits were less severe than might otherwise have appeared. These were: first, his records of study at college in the post-accident period between September 2007 and July 2009 showed a level of cognitive performance and motivation inconsistent with the case advanced on his behalf; secondly, the assessment by the neuropsychologists indicated that the Claimant had consistently returned results suggesting that he was deliberately exaggerating his difficulties; third, his performance on a day-to-day basis had become worse than it was when he attended a residential rehabilitation programme at the Queen Elizabeth Foundation for Disabled People at Banstead ("Banstead"); and fourthly, and most significantly for this appeal, there was the evidence (which emerged very shortly before trial) that on 9 February 2012, the Claimant had taken the UK Citizenship Test ("UKCT") and had passed it. It was effectively common ground between the experts that for the Claimant to have passed this test, whether fairly or by cheating, was surprising and appeared to be inconsistent with the level of cognitive disability which he had displayed to them in various examinations over the years since the accident. The Defendant argued, and maintains on its appeal, that this feature of the case ought to have led to a finding that the Claimant had been malingering. In response, it was argued for the Claimant that it would have been simply impossible for him to have maintained this sort of pretence so consistently and for so long so as to "pull the wool" over the eyes of so many witnesses both lay and expert.
It is the judge's findings on the fourth strand of the Defendant's case at trial (the ramifications of the apparent pass of the UKCT) that form the principal issue on this appeal and on the cross-appeal and from which most of the other consequences in the case follow. The judge's conclusion on the evidence of the Claimant having passed this test appears in his judgment at [247–8]. He rejected the idea that the Claimant had outside assistance while taking the test (assuming, of course, that it was he who took it). He then examined the Claimant's motivation for taking the test and how he passed it. On this final question, the judge concluded:
"….I consider it probable that, spurred on by the fact that Sadek's wife 1 had taken and passed the test, he learned answers by rote and then struck very lucky indeed in the questions that came up. I accept the evidence from his family that they considered he was wasting his time. They did not think he was up to it, any more than anyone else who has dealt with him outside the medico-legal context (or, for that matter, a number of those involved in the medico-legal context) would have thought he was up to it."
It will be necessary in the course of this judgment to refer to various parts of the judge's judgment, but I shall not do so comprehensively. The judgment produces a very full summary of the evidence and of the arguments at the trial. It is readily accessible "on line". Its neutral citation is [2013] EWHC 1730 (QB) and is available on the BAILLI website. From the judgment one can find a chronology of the relevant family history, the salient features of the pre-and post-accident periods and a comprehensive summary of the factual and expert evidence. Taking that as read, I propose to concentrate upon the issues on the appeal and on the cross-appeal and my own conclusions on them.
(B) The Appeal and Cross-Appeal
The short main ground of appeal by the Defendant is that, having found that the Claimant had passed the UKCT without outside assistance, the judge failed properly to consider the consequences of the finding and placed weight on evidence no longer reliable so as to conclude that the Claimant continued to suffer from significant cognitive deficits, leading to an award of £147,500 for pain, suffering and loss of amenity ("PSLA") and a finding of lack of mental capacity and no residual earning capacity. It is submitted that the only logical conclusion was that the Claimant had either been malingering or consciously exaggerating or, even if he had not been doing this, that he did not suffer from significant cognitive deficits. The appropriate award
for PSLA should have been, therefore, £75,000 and the residual earning capacity should have been assessed at £7,054 (net) p.a.The Defendant also contends that the judge was wrong to find that the Claimant lacked mental capacity to manage his affairs and in finding that he would always have significant needs for care and support.
On the cross-appeal it is argued for the Claimant that the finding that he had passed the UKCT unaided was against the weight of the evidence. Further, it is contended that the finding of rote learning and that the Claimant "struck very lucky indeed in the questions that came up" was also against the weight of the evidence. As a consequence, it is submitted that the judge should have awarded £175,000 for PSLA and should have allowed for additional future care needs 30–35 hours per week in the first year and 20 hours per week thereafter (as opposed to the 17.5 and 10 hours allowed for in the judgment).
It seems logical to address the cross-appeal first. Was the judge's finding that the Claimant sat and passed the UKCT, in the fashion found by the judge, against the weight of the evidence?
The Main Issue – the UKCT
It is necessary to examine what evidence there was about the Claimant taking this test and passing it.
The Claimant himself did not give evidence nor did any other witness give evidence of his movements on the day in question. There was no evidence in any witness statement or live evidence as to the Claimant's attendance at the test centre or as to what happened either in the course of the verification processes or in the test room itself on that day.
There was a record in the support workers' daily log for that day, over the printed name of one "Rupert Alexander" (who was not a witness) in these terms:
"Jubair stated that he planned to take a cab to an office building in Romford Rd E7 to sit the Life in the UK test. We arrived at the building; Jubair sat the test and stated he had passed. Jubair suggested lunch at a local café. During the lunch Jubair rang his OT and arranged to meet Paul-OT at the Westfield Shopping Centre. We caught the bus to Stratford meeting up with Paul. Paul handed over a new mobile phone which was for...
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