Maria Louise Freeman v Christopher Hallas Lockett

APPROVED JUDGMENT

The Claimant, Maria Freeman, suffered severe spinal injuries on 25 ^th February 2002 after a van being driven by the Defendant collided with her car as she was driving along the M1 motorway between Junctions 4 and 5. Liability has been admitted and judgment was entered against the Defendant on 25 ^th August 2004. Happily, agreement has been reached in respect of most of the conventional valuation issues concerning the quantification of the claim. I have been asked to determine the few outstanding issues of principle which I now do.

I have also been asked to resolve a far-reaching point concerning the proper approach in this case to the circumstance that the Claimant has for some time been in receipt of substantial local authority funding towards her domiciliary care. Should the potential availability of assistance from that quarter be taken into account by way of reduction of the award to reflect what will or might be available to the Claimant over the rest of her life?

On that second issue I have reserved judgment and I shall not address it now.

The judgment I am delivering now is therefore in two senses interim. Firstly, it is preliminary to the judgment which I shall in due course make available in writing and hand down on the local authority funding issue. Secondly, it will only be after the Claimant knows of the decision of the court both on the outstanding issues which I shall address today and on the local authority funding issue that she will be able to make an informed decision whether to invite the court to direct that all or part of her award of damages should take the form of periodical payments.

In view of the limited nature of the issues which I must today resolve I need only record the nature of the Claimant's injuries and her ensuing condition in summary form.

At the time of the accident she was a fit and healthy 34-year old married lady with a son, Cory, aged 17 months, born on 11 ^th September 2000. She lived with her husband Colin and their son in a three-bedroom two-storey house in Hemel Hempstead. She worked as an executive officer in the Civil Service based in Edgware and was on part-time hours following maternity leave. As a result of the accident she sustained a fracture of the cervical spine involving facet dislocation of the C4 and C5 vertebrae. She was airlifted to the Royal London Hospital, where she was noted to be tetraplegic. She also sustained significant head injuries, which fortunately gave rise in the event to only modest long-term consequences. However her post-operative recovery was stormy and she was transferred to the Spinal Injuries Unit at Stoke Mandeville on 23 ^rd May 2003, from where she was not discharged until 11 ^th August 2003. She is now a C5 tetraplegic Frankel B6 with C6 on the right side. No further neurological recovery is likely. She therefore remains wheelchair dependent and is unable to perform any transfers due to the upper body paralysis.

A very unfortunate feature of her rehabilitation has been her inability to return to the matrimonial home due to it being wholly unsuitable for her needs. Since her discharge she has been accommodated in a rented ground floor three-bedroom flat in Hemel Hempstead (Lock House) which is partially adapted for wheelchair use. However this flat, which must of course accommodate her carers, is itself insufficiently large also to accommodate her husband, who has perforce slept at the family home whilst striving mightily to spend as much time as possible with his wife and son and to shoulder his share of the care and support of both.

Inevitably the disruption to family life has had its impact upon Cory, who has subsequently displayed some behavioural disturbance. Happily, matters have stabilised on that front, but it is a matter of record that continuity in the care for the Claimant has at times been severely compromised by the demands imposed upon the carers by the presence of a young and to an extent disturbed child.

For the past year or so the Claimant's care and support has stabilised too as a result of her decision to employ live-in carers direct rather than through an agency, and in consequence of her being fortunate enough to secure the services of two evidently outstanding carers, Susan Hellyer and Florence Taylor. Susan Hellyer had in fact done some work on an agency basis since February 2004. These ladies work as live-in carers on a rota basis, usually staying for periods of between 10 and 15 weeks before the one relieves the other. The live-in carer is supported by agency carers during the periods when double-up care is required, as it is for all transfers. Unfortunately these dedicated carers will not be available for much longer.

It is intended that the family will be reunited when a new matrimonial home is purchased and adopted. A suitable six-bedroom property in Hemel Hempstead (The Oaks) has been located, which can be adapted to meet the Claimant's needs. There are grounds for optimism that contracts will shortly be exchanged.

It goes without saying that the Claimant and her husband were unable to embark upon the search for suitable accommodation until liability was admitted. In consequence of that admission they have received interim payments which are, in broad terms, sufficient to fund the purchase and the modification work required. The delay has obviously been detrimental, in the sense that it has postponed the time at which the family can live together in suitable accommodation and pursue so nearly as possible the routine of family life. I do not mention the delay by way of criticism of the Defendant or of the underwriters who stand behind him. I have no idea what were the issues. I mention it merely as a relevant part of the background to the issues which I have to decide.

It is also relevant to record that I heard oral evidence from the Claimant and her husband and from Mrs Hellyer. I read the statements of the Claimant's mother, Mrs Hughes, and of Florence Taylor, without the Defendant requiring them to be called, reserving the right of course to comment on matters of emphasis and degree. From this evidence and from my own observation in court (the Claimant attended for two full court days), it is apparent both that the Claimant has reacted to her misfortune with considerable stoicism and that she is quietly but formidably determined to pursue a care and exercise regime which will give her the best prospect of avoiding the debilitating consequences and infections which can typically affect those similarly afflicted.

Against that background, I turn to the issues.

Life expectation

The gap here is narrow between to 71.5 years advocated by Dr Jamous for the Claimant and to 67 years advocated by Mr Tromans for the Defendant. Given the care and case management package which on any view is required for the Claimant this gap is nonetheless significant in financial terms. Mr Davies, for the Defendant, initially invited me to adopt a pragmatic compromise midway between the competing views of honest professional men. Briefly, he flirted with the contention that I should prefer the view of Mr Tromans. Ultimately he settled for his initial stance. Mr Westcott, for the Claimant, characterised this approach as indicative of an acknowledged weakness in Mr Tromans' method.

In his first report on this point Dr Jamous relied upon two papers. One was the Frankel Paper of which he was a co-author, a study of cases dealt with at Stoke Mandeville and Southport between 1943 and 1990. Had that paper been relied upon alone, there would be a prediction of a life expectation of 61% of the norm for uninjured women of the Claimant's current age.

The second paper was by Yeo & Others, a study of cases in Australia arising between 1953 and 1993. These authors reported:

"The projected mean life expectancy of spinal cord injured people compared to that of the whole population was estimated to approach 70% of normal for individuals with complete tetraplegia."

However a close study of the text reveals that the relevant prediction for this Claimant, given her age and the severity of her disability, is in fact 67%.

In his first report Dr Jamous merely recorded that mean life expectancy for complete tetraplegics (which here includes Frankel Grades B and C) approaches 70% of that of the general population, which percentage he adopted and apparently applied mechanically to the current smooth projected life expectancies using the latest Government Actuaries Department Table.

Mr Tromans, when he dealt with this issue, simply said that published data on the life expectancy of tetraplegics gives a life expectancy between 60% and 67% of normal. His bibliography referred to both the Frankel and the Yeo papers and to other papers, but not to a paper by Krause and others, published in November 2004, an American case study.

For the purposes of his reports, Mr Tromans saw the Claimant twice: once at Stoke Mandeville in early 2003 and latterly at her home in December 2004. He gave it as his opinion in February 2005 that, with her medical problems current as at December 2004, he felt that the Claimant would do less well than average and that her life...