Kristopher Loughlin (by his mother and litigation friend, Barbara Anne Kennedy, formerly known as Loughlin) v Kenneth Dal Singh and Others

Hearing dates: 15 – 22 January and 24 January

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.

Introduction

On 28 October 2002, when he was 12 years old, the Claimant was seriously injured in a road traffic accident. He was riding his bicycle when he was struck by a vehicle driven by the First Defendant. This was a trial for an assessment of damages, in which a number of contested issues fell to be resolved.

The Claimant's Injuries

Following the accident the Claimant was taken to the Manchester Royal Infirmary ("MRI"). He had suffered a comminuted depressed frontal fracture of the skull with a left subdural haematoma. In addition, there was a fracture to the left femur, haemarthrosis and ligamentous damage to the right knee. There was a 4 ^th cranial nerve palsy and multiple abrasions to the face, abdomen and limbs. On admission to the MRI the Claimant's Glasgow Coma Scale was between 6 and 7 out of 15. The Claimant was transferred to the Royal Manchester Children's Hospital.

On 29 October 2002 the Claimant underwent operative treatment involving burr hole drainage of the left subdural haematoma, debridement of the skull fracture and insertion of an intracranial pressure monitoring bolt. CT scans of the brain on 29 and 31 October revealed generalised brain oedema and contusion of the left frontal region. The Claimant remained in intensive care under heavy sedation until 3 November 2002 when he was transferred to a high dependency unit. On 8 November 2002 he underwent operative treatment to plate the fractured femur. The Claimant remained in hospital until 22 November 2002.

The Claimant's head injury was severe and has resulted in damage to the left frontal lobe of the brain. The Claimant's powers of motivation, initiation and organisation are greatly reduced. On formal testing, the Claimant's IQ is well preserved but outside a structured setting the Claimant struggles to utilise his intelligence. His cognitive abilities are quickly overloaded and he rapidly becomes fatigued.

The Claimant has made a good recovery from his other injuries. In March 2004 he underwent operative treatment for removal of the plate from the left femur.

The Claimant's Family and Educational Background

The Claimant's father had left the home when the Claimant was aged 9. There was a history of abuse directed at other family members, with some records suggesting the Claimant may have been abused by his father. The Claimant's parents divorced in May 2000. The Claimant's mother began living with Richard Kennedy in September 2000. The Claimant developed a close relationship with his stepfather.

The Claimant attended St Mary's RC Primary School. He made good progress academically. His conduct was good. At age 11 the Claimant transferred to St Anne's RC School. He had completed his first year at this school before the accident and had made a promising start. After the accident he returned part-time to school in about January 2003. The Claimant was not able to achieve at his pre-accident level. The Claimant received assistance from a special educational needs co-ordinator ("SENCO"). He received some one-to-one tuition. The Claimant was eventually referred to a consultant paediatrician, Dr Berchtold, who, in a letter to SENCO of 16 June 2006, stated:

"He continues to suffer from poor organisational skills, poor auditory recall, excessive tiredness and distractability …"

The Claimant was granted additional time for all his GCSE exams. The extra time and additional assistance enabled the Claimant to obtain 2Bs and 5Cs at GCSE level.

The Claimant pursued an A level course at Aquinas College. The difficulties flowing from the Claimant's head injury and disabilities were recognised by the college. He was allowed 25% extra time in exams and was to take exams in a separate room with a prompter. He was later provided with a scribe. Dr Berchtold wrote to the college in May 2008 giving an updated assessment and stating that the Claimant's "near complete academic failure in his time at Aquinas" was a consequence of the head injury. After three years at the college, with extra support and extra time in exams, the Claimant achieved grade Es at music technology and psychology and D at general studies. He failed applied business.

After finishing at Aquinas College in June 2009, the Claimant was offered a place at Stafford University to pursue an HND course in music production. He failed to organise any finance or accommodation and did not take up the place on the course.

The Claimant's History Since Becoming an Adult: Outline

The Claimant remained under the care of Dr Berchtold and the doctors at the Winnicott Centre, until reaching adulthood. He was referred to adult services in March 2009 and was seen by Dr Khan. The Claimant was also referred to a clinical psychologist, Dr Brown, for treatment.

In early 2009 a case manager, Beverley Wild, was appointed for the Claimant. She arranged for an occupational therapist to contact the Claimant and make an assessment. He was still at Aquinas College. Following completion of his studies at Aquinas and the failure of the Claimant to take up the place at Stafford, arrangements were made for the Claimant to commence a course in music production in November 2009 at the MIDI College in Salford, requiring him to attend lectures for 6 hours on one day a week with time spent in a music studio on two other days.

The Claimant was seen to be vulnerable in social situations. He had a tendency to stare at individuals and would attempt to beg cigarettes from strangers. In December 2009 the Claimant suffered a serious assault at a bus stop, sustaining fractures to his jaw.

Arrangements were then made by the case manager for the Claimant to leave his mother's home and move to a flat in the centre of Manchester. The Claimant was initially to have 24 hour support and the plan was to reduce the support gradually and to identify the extent to which the Claimant could live independently. The Claimant moved to a flat on 8 April 2010. Support was removed on some nights, with a support worker remaining on call. The conditions in the flat then deteriorated. The Claimant's sleep pattern also worsened so that he failed to go to bed until the early hours of the morning and failed to get up until the afternoon. More extensive support was restored.

Within a short period of the Claimant moving to a flat, his stepfather was diagnosed with a terminal illness. This diagnosis and illness had an adverse effect on the Claimant. His stepfather died in January 2011. This was followed by the suicide of a friend of the Claimant in February 2011. Also in February 2011 the Claimant was arrested for being drunk and disorderly and stealing a chocolate bar. Following an explanation from one of the support works no charges were preferred.

In 2009 the case manager sought assistance for the Claimant from a neuropsychologist. The Claimant attended appointments with Dr Perry-Small but treatment had to be discontinued when Dr Perry-Small moved his practice to London. An alternative neuropsychologist was identified, Dr Colbert, but the Claimant did not find the session useful. An appointment was made for the Claimant to see another neuropsychologist, Dr Gemma Hague, in December 2010. The Claimant found the sessions with this specialist helpful and Dr Hague has remained involved with his treatment.

The Claimant's sleep pattern remained a problem. An appointment was made for the Claimant to be examined by a Consultant Neurologist, Dr P N Cooper, who had a special interest in sleep disorders. The Claimant saw Dr Cooper on 24 October 2011. Dr Cooper made a series of recommendations designed to improve the Claimant's sleep pattern. The case manager engaged the assistance of an occupational psychologist, Gwendy Gibson. She began working with the Claimant on a regular basis, providing vocational rehabilitation. Dr Hague arranged for the Claimant to have counselling at TRU, which commenced in October 2011 on a weekly or fortnightly basis.

Through the intervention of Ms Gibson, arrangements were made for the Claimant to participate in RSPCA dog walking and undertake voluntary work at a radio station. The Claimant found the advice of Ms Gibson and the counselling at TRU helpful. The Claimant then began to follow the recommendations of Dr Cooper. He agreed to start an 8 week sleep improvement programme in February 2012. The Claimant generally followed the sleep programme and agreed to its extension.

The present level of support is that the Claimant has a support worker throughout the day and a sleep-in support worker at night, save for Friday and Saturday nights when support ceases at 10pm. Support resumes at 10am on Saturday and 1pm on Sunday. The sleep regime is followed on the remaining five nights a week. The Claimant continues to receive the advice and assistance of Gwendy Gibson and counselling at TRU.

The First Issue: Capacity

The parties are in dispute as to whether the Claimant has capacity to conduct litigation and manage his property and...