Simon Nicholas Dixon (by his Mother & Litigation Friend Pauline Dixon) and John Were

Hearing dates : 6 July – 14 July 2004 & 16 July 2004

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 Gross:

INTRODUCTION

In this action, the Claimant, Simon Dixon, claims damages from the Defendant for personal injuries and related losses sustained following a road traffic accident on the 5 ^th July, 1997 ("the accident").

The Claimant was born on the 17 ^th February, 1976. He attended Crosfields Preparatory School and, thereafter, Radley College ("Radley"). In September 1994, he commenced his studies at Newcastle University and was still a student at that university at the time of the accident.

In July 1997, the Claimant was enjoying his summer holidays. He was staying at his parents' home in Shiplake. On the 4 ^th July, he went with friends to a party at Goring Heath. In the early hours of Saturday 5 ^th July, the Claimant, with five other friends went for a drive; the Defendant was the driver. All concerned had had a good deal to drink. Seat belts were not worn. Tragically, the car collided with a tree. Two passengers were killed. The Defendant was subsequently convicted of causing death by careless driving and was sentenced to a period of imprisonment. The Claimant, on any view, was gravely injured; he suffered severe physical injuries and, in addition, sustained brain damage, resulting in lasting mental health consequences.

Liability in the action was admitted at the outset, subject only to an issue as to contributory negligence. In the event, the parties agreed that a deduction of 27.5% was appropriate in this regard; insofar as it is necessary for me to do so, a matter to which I must return, I approve that agreement or settlement. It reflects a reasonable compromise on the issues as to contributory negligence which arose in connection with the accident; no useful purpose would be served by detailing them here.

Further and helpfully, the parties were agreed on a figure of £345,000 plus interest at an agreed rate, in respect of past losses. Still further: (1) various future losses relating to medical treatment and like matters were agreed; it is unnecessary to list these here and in any event they appear from the Schedule (prepared by counsel) annexed hereto ("the Schedule"); (2) during the course of the trial, general damages for pain, suffering and loss of amenity were agreed in the amount of £147,500, plus interest. It was common ground that the parties' agreement on all these matters was without prejudice to their respective positions on the remaining issues.

It follows that the trial before me was concerned with quantum alone and, very largely, with matters of quantum in respect of future losses. At the conclusion of the trial, the following principal issues remained for decision:

i) Issue (I): Loss of earnings and ancillary claims;

ii) Issue (II): The Claimant's status as a patient.

iii) Issue (III): Care and case management.

Some amplification may be appropriate:

i) At the commencement of the trial, a causation issue formed part of the Defendant's case. In a nutshell, the Defendant contended that a psychiatric disorder from which the Claimant continued to suffer (bipolar affective disorder) was not caused by the accident; this disorder was instead the result of a pre-existing genetic predisposition, albeit that it had been brought forward in time by the accident. Manifestly, this defence faced a number of objections; it is only necessary to mention one. The foundation of the Defendant's factual case rested on the assumption that a relative of the Claimant (whom it is unnecessary to identify), suffered from a psychiatric disorder. It was common ground that at an earlier hearing, Morland J. had refused an application by the Defendant for disclosure of that relative's medical records. From that decision there had been no appeal. Against this background, to put it no higher, the Defendant faced an uphill struggle even to get this defence off the ground. Plainly, a finding that a third party to these proceedings suffered from a psychiatric disorder was not one that the Court would entertain absent very cogent evidence. Ultimately, in the course of the trial, the Defendant properly and realistically abandoned the causation point. I therefore say no more of it.

ii) The issue as to the Claimant's status as a patient was properly raised at the outset of the trial but it has been agreed by the parties that it should be dealt with as part of my judgment.

Turning to the evidence, the Claimant called, as witnesses of fact, his mother, Mrs. Dixon, his father, Mr. Dixon and a Mr. Beavis, who was at the material time the Head of the Department of Economics and the Claimant's tutor at Newcastle University. Ms. Debbie Eaton, the Claimant's Case Manager, gave mixed factual and expert evidence. The Defendant called no witnesses of fact.

Understandably, expert evidence ranged over a variety of disciplines, some overlapping. I heard from an employment consultant, a Mrs. Challis, called by the Claimant. As to neuro-psychiatry, Dr. Scheepers was called by the Claimant; Prof. Trimble, retained by the Defendant, furnished a number of reports (including a joint statement with Dr. Scheepers) but was not ultimately called to give evidence. Expert psychiatric evidence was given by Prof. Weller, called by the Claimant and Dr. Fry, called by the Defendant. Expert evidence as to care was given by Ms. Clark-Wilson, called by the Claimant and Ms. Carless, called by the Defendant. Expert evidence as to pensions was given by Ms. Rifkind, called by the Claimant.

A considerable body of evidence, both factual and expert, was, by agreement, adduced in documentary form without the need to call the witnesses in question. It is unnecessary to list all the witnesses whose evidence was adduced in this fashion; it suffices to note that documentary evidence was before the Court from (1) the Claimant; (2) various friends and relatives of the Claimant; (3) the neuro-psychologists, Prof. Wood, retained by the Claimant and Prof. Beaumont, retained by the Defendant; and (4) an expert financial adviser, retained by the Claimant.

I shall of course return where necessary to consider the rival evidence. At this stage, I need do no more than observe that all the witnesses from whom I heard were genuinely seeking to assist the Court. It was very properly common ground that neither the Claimant nor his parents stood to gain from the litigation; that said and, as he was entitled to do, the Defendant was concerned to subject this substantial claim to proper scrutiny. As to experts, it will be necessary to take into account that not all the disciplines with which this case was concerned are equally rigorous; further, when considering the rival views of the experts on care, it will be appropriate to consider their relevant experience; finally, in this regard, although there had been some suggestion in the Claimant's written closing submissions of partisanship on the part of Dr. Fry, as will be seen, that point very largely disappears once close regard is had to precisely what Dr. Fry was saying.

I was grateful for the considerable assistance received from leading counsel, Ms. Rodway QC for the Claimant and Mr. Davies QC for the Defendant, and from their respective teams.

PHYSICAL INJURIES AND CHRONOLOGY

Before proceeding further, it is appropriate to record the principal physical injuries suffered by the Claimant and to set out, in summary form, a chronology of events since the accident.

Quite apart from his traumatic brain injury, the Claimant suffered the following multiple physical injuries:

i) A complex and severe fracture dislocation of the left hip; in addition to the surgery involved, the Claimant has, as a result, scarring, foot drop and a permanent limp.

ii) A complex fracture of the right side of his pelvis, with consequential urological and sexual dysfunction problems.

iii) Facial injuries, including a fractured left jaw, mandible and cheekbone.

iv) Chest injuries, requiring a tracheostomy and subsequent revision surgery for the tracheostomy scar.

As to the chronology, following the accident the Claimant was admitted to hospital with a Glasgow Coma Score of 5/He remained in hospital until discharged home, a little over 4 months later, on the 12 ^th November, 1997. From the 20 ^th November, 1997 until the 6 ^th February, 1998, he was in hospital for rehabilitation. Thereafter, apart from some relatively brief hospital visits, he was at home, cared for by his parents, until September 1998, when he returned to Newcastle University. He spent a term at Newcastle University but did not return in January 1999 and remained, instead, at his parents' home. What might loosely be termed the Claimant's first psychiatric crisis took place in about December 1998 but it was to some extent masked by the time he spent at Newcastle University, to which he returned, holidays apart, between September 1999 and December 2000. Although he had by then left university, between December 2000 and August 2002, he generally continued to live in Newcastle. In April 2002, he took a tenancy of a property in Henley.

In about June 2002, he was seen by a psychiatrist, a Dr. Jacobson,...