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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657 (9 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1657.html Cite as: [2001] EWCA Civ 1657, [2002] PIQR Q5

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PONTYPRIDD COUNTY COURT
HIS HONOUR JUDGE PROSSER

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 9th November 2001

LORD JUSTICE MAY:

1. This is an appeal against parts of the judgment of His Honour Judge Prosser QC in a Pontypridd case heard in Cardiff with judgment delivered in the Newport County Court on the 19^th October 2000. The judge decided issues of quantum in a personal injury case. We do not have a full transcript of the judgment, but there is a fairly full summary note of it prepared, I think, by the defendants' solicitors which the judge has approved. Permission to appeal was given by Sir Murray Stuart-Smith.
2. The claimant was at the time of the hearing 34 years old. He had been seriously injured in the course of his employment with the defendants as a roofer on 31^st January 1995. Liability was compromised so that the claimant was to receive 85% of a full reward.
3. The accident occurred when the claimant fell from the roof on which he was working. He suffered injuries in the area of his right arm. These included injuries to his elbow comprising a fracture of the head and radius bone and also injury to his right brachial plexus. His predominant problem following his injury was pain, which has become severe and resulted in muscle wasting. In addition to serious pain in his right arm, he also suffers from headaches and neck pain. He has serious limitation of movement in the cervical spine. Over a period, his condition worsened and the pain was such that a spinal cord stimulator was implanted. His combined symptoms constitute the syndrome known as reflex sympathetic dystrophy.
4. The claimant's life has been devastated by this injury, one of whose effects is that he suffers from extremely severe depression. Any movement he makes causes him pain. The pain spreads throughout his body. He will never recover. He will never work. The more he moves, the more suffering he gets. He needs help in everything he does. His wife or a carer will always have to help his immobility. The judge said that on a good day a full strip wash would take anything up to an hour. On a bad day it would take twice as long. Unfortunately good days are few and far between. The judge added that he had noticed that throughout the trial the claimant remained motionless. He is in his mid-thirties with a full life expectation. The condition will never improve. The judge considered that the defendants in the presentation of their case had not grasped the full implications of the claimant's disability or pain. The severity of his condition may be gauged from the fact the judge awarded £100,000 as general damages for pain, suffering and loss of amenity and that there is no appeal against this part of the award.
5. The judge's total award of damages on full liability was £923,710.31. 85% of this was £785,153.76. These figures included interest.
6. The elements of the award against which the defendants appeal are (a) future loss of earnings, (b) past and future care, and (c) accommodation. The judge's awards for these three elements were (a) future loss of earnings - £208,000; (b) past care - £80,532,32 plus interest; future care - £378,840; and (c) accommodation - £16,500.

Future Loss of Earnings.

7. The claimant's pre-accident earnings were agreed to have been £300 per week. The judge said that the claimant was in good health and regular employment as a roofer and a lorry driver. He was expected to continue as a roofer. There was evidence from an employment expert that, if the claimant had given up as a roofer, there were other opportunities available to him at an income of £261 per week. The judge took this gross amount as the basis for calculating a multiplicand of £13,000 per year. Mr Christopher Purchas QC, on behalf of the defendant appellants, does not now challenge this element of the judge's assessment.
8. The defendants contended for a multiplier of 15 and the claimants for a multiplier of 19.71. The judge considered that 15 was a little too low and he thought that a multiplier of 16 was appropriate. He thus arrived at his figure of £208,000 for future loss of income. This part of the defendants' appeal is limited to the contention that the multiplier should have been 15, not 16.
9. The summary judgment records the judge as saying this:

"The claimant was a family man and a good worker. I consider that he would have worked until he was 60 years old. I must take into account the area in which the claimant lives, where the unemployment rate is above the national average and that he could have found himself out of work. Other matters were raised, such as the fact that the claimant was a smoker and may suffer ill health and there were chances of accidents and early retirement. I cannot take those factors into account as there is no clear evidence and, therefore, I would be guessing."

10. The defendants submit that a full actuarial multiplier would have been 17.76 taken from Ogden Tables. The judge discounted this by slightly less than 10%. The defendants submit that this discount was too little and that the resulting award was too great. In their written submissions they contended that the claimant had had an irregular and poorly remunerated pre-accident employment history. He was in reasonable work at the time of the accident but he had had substantial periods of unemployment; his wages had usually been very low; he had from time to time claimed state benefit on the basis that he was unemployed while he was in fact working; and had from time to time earned money which he had not declared for income tax and national insurance purposes. They submit that he was vulnerable to unemployment, exploitation and low wages. He would have had little protection in the workplace. He was also a heavy smoker, which put the length of his working life at risk. In addition, the nature of his employment made him vulnerable to accidents.
11. Mr Purchas' oral submission was limited to the contention that the judge's assessment explicitly left out of account the risks of smoking and accidents as a roofer, when he should on the evidence have made allowance for these. Mr Cooke QC, on behalf of the claimant pointed out that the judge based his assessment on a working life to age 60 not 65, and that there was indeed no specific evidence from which the judge might have gauged the risks relied on. Mr Cooke submits that the judge's assessment made a reduction from the actuarial multiplier which was well within the range that was justified by the evidence and that it is not amenable to appeal. I agree and I would dismiss this part of the defendants' appeal.

Care.

12. The judge said this under the heading "Past Care":

"As I indicated when outlining generals, the claimant's symptoms are permanent. He will never work again. His only relief is from drugs and psychological support. The claimant knows about his condition. Ian Cast talks of the spread of pain to the whole body and that the claimant is severely disabled. In Mr Cast's opinion, that permanent condition justifies around the clock care. Mrs Evans is described as unique and I consider the claimant does need attendance at night. Whilst this was tested by the defendants' counsel, I consider the claimant wants and needs a chat a night. It was described as important pillow talk and that Mrs Evans is an emotional crutch. The simple act of moving from the chair requires her assistance. There is no doubt that the claimant requires 24 hour care and the evidence is overwhelming."

13. Mr Cast is a consultant neurological surgeon who gave evidence.
14. The judge accepted the evidence of Janet MacLean as to the appropriate rates for professional carers. She is a State Registered Occupational Therapist working for Jacqueline Webb and Co, Rehabilitation Costs Consultants. Her calculations were in two parts. From the date of the accident until 5^th August 1995, they were based on home carer rates at 30 hours a week. From the 6^th August 1995 until the date of trial they were based on residential rates and assuming care provided for a full 24 hour period. The resulting total was £107,390.27, which the judge accepted in preference to figures put forward in a report prepared on behalf of the defendants whose author was not called to give evidence. The judge then reduced this figure by 25% to take account of the fact that the claimant was in fact looked after during this period gratuitously by his devoted wife. The resulting award was £80,532.31. In determining a discount of 25%, the judge referred to two first instance decisions, Nash v. Southmead Health Authority [1993] PIQR Q156 and Fairhurst v. St Helens and Knowsley Health Authority [1995] PIQR Q1. In the first of these, Alliott J made a deduction of 1/3^rd from amounts which would have been paid to professional carers where a grossly impaired boy was cared for by his parents. In the second case, HH Judge David Clark QC made a deduction of 25% where a severely disabled girl was in part looked after by her mother. It is suggested that, if there is a distinction to be drawn between the two authorities, Nash involved the provision of ordinary caring activities and Fairhurst involved the provision of rather more specialist care and attention.
15. For future care, the judge carried forward his finding that the claimant would require care 24 hours a day and that this care would be provided by his wife. He considered that Mrs Evans would need respite, of which he said

"Janet MacLean says in her report that Mrs Evans is fiercely dedicated to her family. I think she will do her best in the future. However, Mrs Evans must be careful about her own health. She needs to recharge her batteries. It is suggested that there should be respite of 3 weeks per annum. That is not enough. If she gets short periods of relief this would be helpful to her. I consider that there should be 8 weeks respite a year, which can be described as 2 x half days a week. The respite care should be for 10 hours for the 24 hour period at £6 per hour, which amounts to £420 per week for 8 weeks, with a multiplier of 22, leading to a figure of £73,902."

16. For the remaining 10 months, the judge took Mrs McLean's figure of £60 per day for full time residential care, which he described as modest. He used the same multiplier of 22 and the same discount of 25% which he had used for past care. This produced an amount of £304,920 which, when added to the amount for respite care produced a total for future care of £378,840.
17. The defendants challenged the judge's assessments for past and future care. First, they say that the assessments based on 24 hour care were grossly excessive on the facts in the light of authority. Second, they say that the discount of 25% is too low: it should have been 33 1/3%.
18. The essence of Mr Purchas' first submission is that, where care is provided gratuitously by a loving relation as in this instance by Mrs Evans, an assessment of compensation should be limited to additional physical services which the claimant's medical condition requires. The requirement needs to be supported by medical evidence, and the need should not be derived from the view of a care consultant, whose task should be limited to giving evidence to enable the court to value the services which the medical evidence justifies. In the present case, the defendants accept that the claimant should be compensated for physical services which now have to be provided because of his injury. For this, they accept the estimate of the claimant's expert at 3 hours a day – 1 hour for mobility and 2 hours for personal care – or 21 hours a week. It is submitted that the assessment should not include psychological support, because, although it is agreed that the claimant suffers from extremely severe clinical depression which is likely to persist indefinitely, it is not considered that he should receive psychiatric treatment because it was unlikely to have any substantial benefit upon his mental state. The assessment should not include companionship and general emotional support if, contrary to the first submission, it were considered that some allowance should be made for psychological support. This should be limited to about 1½ hours a day. An assessment based on a need for care 24 hours a day would defy the fact that for much of the day Mrs Evans does not provide care services to the claimant necessitated by his injuries, but is doing a variety of normal household and family things which she would have done anyway if the claimant had suffered no injury. It is submitted that the judge was wrong to make a broad brush award on the basis of full time care. He should have estimated and calculated the time required for the specific additional physical services provided by Mrs Evans and resulting from the injuries, and then multiplied them by the appropriate hourly rates. This was the approach in Nash and Fairhurst, where the injuries and needs were very much greater. Mr Purchas in effect submitted that little, if any, of what Mrs Evans does for her husband during the night should contribute to this part of his award. Talking with him and providing emotional support did not constitute allowable additional physical care services, since conversation and emotional support is part of normal life between spouses. Mr Purchas went so far as to submit that Mrs Evans did not have to sleep on the sofa downstairs. It would be quite possible, he suggested, for her to sleep upstairs with her husband provided with an accessible bell by means of which he could summon her if he had a particular physical need. This, he submits, is what would be likely to happen if there were a professional overnight carer.
19. Mr Cooke on behalf of the claimant emphasises that it is necessary to appreciate fully the extent of the claimant's medical condition and the extent of the care provided by his wife. He points to the judge's view that the defendants had not grasped the full implications of the claimant's disability or pain. He reminds us that the judge's award of general damages of £100,000 was very high and that there is no appeal against this reward. The claimant is in constant intractable pain stemming from the reflex sympathetic dystrophy and care services provided by his wife have been at a very high level extending daily over the full 24 hour period. There was a significant deterioration to what has become a permanent static condition after the identification of the brachial plexus injury syndrome in August 1995. Mr Cooke points out that the defendants called no evidence to contradict the claimant's witnesses on the extent of care services provided.
20. Mr Cooke draws attention to evidence to the following summary effect. During the day, Mrs Evans has to attend to the claimant's use of a commode. She has to help him manoeuvre out of and back into his chair which has an electric device to put him in an upright position. His mobility is severely restricted and when he makes to walk at all his wife has to be vigilant to see that he does not fall. She undertakes strip washing, partial washing, undressing and redressing. She also washes his hair. In short, during the day she does everything for him. At night, he has historically been a suicide risk. He and his wife get only about 4 hours uninterrupted sleep each night. Part of her care at night is to see that he falls asleep first. This is to prevent him harming himself. Night time is the worst time for his emotions to spill over. When she manages any sleep, she has to sleep with one ear open. Generally, his communication with anyone apart from her is at best muted and at worst non-existent. Mr Cast in his evidence emphasised the importance of Mrs Evans' emotional support during the hours of night. Any sleep is interrupted by the claimant having to be given tablets and drink or even his desire to talk when he is upset. He cannot get upstairs at their terraced family home. At night, he stays in his day clothing and spends his time in a chair in a corner of the living room while his wife rests on two sofas, one next to his chair and one across from his chair so that, if he tries to go anywhere, his wife is there to help. Thus, his wife is his sole carer at night and part of her emotional support consists in calming him down. This may last between 10 minutes and an hour.
21. Mrs MacLean gave evidence that Mrs Evans had a terrific feeling of loyalty for the claimant and, out of her sense of duty and love, her services went well beyond that which a paid carer would provide. Mrs MacLean's evidence was that the only way of representing what Mrs Evans did was to regard her as providing care as if she were a professional residential carer. Mr Cast took a similar view. As to the rates taken by Mrs MacLean, these made no allowance for enhanced rates for unsocial hours. She suggested that any discount should take this into consideration.
22. The basis on which the court assesses awards of damages for care provided to claimants by gratuitous carers – typically a spouse or a parent – was discussed in the judgment of O'Connor LJ in Housecroft v. Burnett [1986] 1 All ER 332. O'Connor LJ said at page 342g:

"Where the needs of an injured plaintiff are and will be supplied by a relative or friend out of love and affection (and, in cases of little children where the provider is parent, duty) freely and without regard to monetary reward, how should the court assess "the proper and reasonable cost"? There are two extreme solutions: (i) assess the full commercial cost for supplying the needs by employing someone to do what the relative does; (ii) assess the cost at nil, just as it is assessed at nil where the plaintiff is cared for under the National Health scheme, but let me say at once that the defence in the present case has not contended for the second solution … It follows that in assessing the "proper and reasonable cost of supplying the needs" each case must be considered on its own facts, but it is not to be assessed regardless of whether it will be incurred.

The earlier cases were mostly concerned with recovering earnings lost by the caring relative as a result of looking after the plaintiff. The more recent cases show that substantial sums have been assessed when the relative has not given up any employment … Very often we find rates being agreed and, as is shown by the approach of the judge in the present case, regard is to be had to what it would cost to buy the services in the open market, but it is scaled down.

I have found this a very difficult problem … Once it is understood that this is an element in an award to the plaintiff to provide for the reasonable and proper care of the plaintiff and that a capital sum is to be available for that purpose, the court should look at it as a whole and consider whether, on the facts of the case, it is sufficient to enable the plaintiff, among other things, to make reasonable recompense to the relative. So, in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate. …I would also ask: is it sufficient for this plaintiff should her mother fall by the wayside and be unable to give as she gives now."

23. These passages in Housecroft v. Burnett were preceded by and in part implicitly depended on the judgment of Megaw LJ in Donnelly v. Joyce [1974] QB 454, in which he expressed the view that a claim based on gratuitous services did not need to investigate the source from which the plaintiff's needs were met. The loss was the existence of the need for the services, the value of which for the purpose of damages was the proper and reasonable cost of supplying those needs. This approach to the problem was disapproved by the House of Lords in Hunt v. Severs [1994] 2 AC 350. In that case, the gratuitous carer was also the tortfeasor, and the actual decision was that there could be no ground in public policy or otherwise for requiring him to pay to the plaintiff a sum of money representing the value of services which he had himself rendered, since the plaintiff would have to repay that sum to him. Lord Bridge of Harwich, in the course of a speech with which the other members of the judicial committee agreed, examined English authorities and referred to the corresponding position in Scotland, where recommendations of the Scottish Law Commission have been implemented by Part II of the Administration of Justice Act 1982. Lord Bridge then said at page 363A:

"Thus, in both England and Scotland, the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all cases before Donnelly v. Joyce [1974] QB 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning MR in Cunningham v. Harrison [1973] QB 942 that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer.

By concentrating on the plaintiff's need and plaintiff's loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly v. Joyce diverts attention from the award's central objective of compensating the voluntary carer."

24. In the present case, it is not in dispute that the claimant is in principle entitled to recover as part of his award of damages amounts for the past and future gratuitous care provided by his wife. The issue is one of quantification. On the basis of Hunt v. Severs what has to be quantified is an amount "to enable the voluntary carer to receive proper recompense for his or her services". Although O'Connor LJ in Housecroft v. Burnett embarked jurisprudentially from the now disapproved passage in the judgment of Megaw LJ in Donnelly v. Joyce, the basis of quantification to which he referred – "a capital sum … sufficient … to make recompense to the relative" – is in substance the same. On this basis, it seems to me that the guidance given as to quantification in Housecroft v. Burnett remains helpful.
25. In my judgment, this court should avoid putting first instance judges into too restrictive a straight-jacket, such as might happen if it was said that the means of assessing a proper recompense for services provided gratuitously by a family carer had to be assessed in a particular way or ways. Circumstances vary enormously and what is appropriate and just in one case may not be so in another. If a caring relation has given up remunerative employment to care for the claimant gratuitously, it may well be appropriate to assess the proper recompense for the services provided by reference to the carer's lost earnings. If the carer has not given up gainful employment, the task remains to assess proper recompense for the services provided. As O'Connor LJ said in Housecroft v. Burnett, regard may be had to what it would cost to provide the services on the open market. But the services are not in fact being bought in the open market, so that adjustments will probably need to be made. Since, however, any such adjustments are no more than an element in a single assessment, it would not in my view be appropriate to bind first instance judges to a conventional formalised calculation. The assessment is of an amount as a whole. The means of reaching the assessment must depend on what is appropriate to the individual case. If it is appropriate, as I think it is in the present case, to have regard to what it would cost to buy the services which Mrs Evans provides in the open market, it may well also be appropriate to scale them down. But I do not think that this can be done by means of a conventional percentage, since the appropriate extent of the scaling down and the reasons for it may vary from case to case.
26. The first task is to determine the extent of services provided by Mrs Evans gratuitously as a result of her husband's injuries. In Hogg v. Doyle, Kemp & Kemp A2-005, the plaintiff's wife was herself a nurse. She had provided such extensive nursing care that Turner J, the trial judge, stated she had probably been doing the work of two full time nurses. On that basis, he assessed the damages payable in respect of her unpaid services at one and a half times the net earnings which she would have earned in employment as a nurse. On appeal, the defendant contended that damages should have been limited to her net loss of earnings. The Court of Appeal rejected the contention, holding that the sum actually awarded would not have been sufficient to cover the cost of employing two full time nurses, which cost would have been justified, if it had been incurred. The award in that case was accordingly based, not on the wife's actual loss of earnings, but on the commercial cost of the services which she actually provided discounted in accordance with Housecroft v. Burnett. Mathematically the discount in that case was 25%, although no emphasis is placed on this in the summary report in Kemp & Kemp. What this case, however, illustrates is that it is appropriate to make an assessment on the basis of the caring services provided by the gratuitous carer as a result of the claimant's injury, and it will depend on the circumstances of the case what the extent of those services are. In many cases, it will be appropriate to assess them at a relatively small number of hours per day or week. In other cases the services may amount to those which would be provided by a full time professional carer or even, exceptionally, exceed the full time services of a single carer.
27. Hogg v. Doyle was considered by this court in Fitzgerald v. Ford [1996] PIQR Q72, in which Stuart-Smith LJ said at page Q77:

"In my judgment, there is no principle involved in Hogg v. Doyle. It is a case on its own facts. In particular, there is no principle that, simply because a member of the family gives up full-time work where they probably work 8 hours a day for 5 days a week, when they become a full time carer being available to help if need be throughout the 24 hours, they should be paid at the rate of 1.5 of their earnings, or, indeed, any more than their loss of earnings. In many cases, the actual nursing or physical assistance may only take a few hours distributed throughout the day or night. For the rest of the time it will be spent in preparation and cooking of meals, shopping, laundry, jobs concerned with the maintenance of the house, all of which have to be done for the carer and any other members of his family in any case. In addition, time will be spent on going out on visits or acts of companionship, conversation and mutual occupation. The fact, therefore, that the plaintiff may be up for 15 or more hours a day and may need some help in the night does not mean that Mr Willmore [the carer] is doing the work of 2 full-time carers, still less of 2 full-time nurses as in Hogg v. Doyle."

28. Mr Purchas relies heavily on this passage in support of his submission that the assessment for care in the present case should be based on the number of hours spent on additional physical care medically required which have resulted from the claimant's injury. He also relies on a passage in the judgment of Beldam LJ in Havenhand v. Jeffrey (CA unreported, 24^th February 1997). Members of the claimants family visited her in hospital and a care claim was made based on the total hours of those visits, which the judge accepted. Beldam LJ, with whom Otton and Thorpe LJJ agreed, accepted a submission that this was excessive. The submission was expressed as follows:

"The appellants argued that it would be wrong to take the entire estimated period during which they were visiting their mother in hospital because, for a large part of the time, they would simply be chatting with and generally improving her outlook on life, making her feel that her family cared for her and that she was not, as it were, abandoned alone in the hospital. In short, the majority of the hours which were taken up by these hospital visits were the normal hospital visits arising from family affection, and not given for the purposes of providing services which the hospital did not provide."

29. It was accepted that a relatively small part of the total time was spent by the family performing services as, for example, taking her to the x-ray or physiotherapy department or going with her when she had to go somewhere about the hospital.
30. Any determination of the services for which the court has to assess proper recompense will obviously depend on the circumstances of each case. There will be many cases in which the care services provided will be limited to a few hours each day. The services should not exceed those which are properly determined to be care services consequent upon the claimant's injuries, but they do not, in my view, have to be limited in every case to a stop-watch calculation of actual nursing or physical assistance. Nor, as Mr Purchas' submissions appeared to suggest, must they be limited in every case to care which is the subject of medical prescription. Persons, who need physical assistance for everything they do, do not literally receive that assistance during every minute of the day. But their condition may be so severe that the presence of a full time carer really is necessary to provide whatever assistance is necessary at whatever time unpredictably it is required. It is obviously necessary for judges to ensure that awards on this basis are properly justified on the facts, and not to be misled into findings that a gratuitous carer is undertaking full time care simply because they are for other reasons there all or most of the time.
31. In the present case, I am not persuaded that the judge made an over- assessment of the services provided by Mrs Evans to her husband as a result of his injuries. He concluded that there was no doubt that the claimant requires 24 hour care and he said that the evidence was overwhelming. In my view, the evidence to which we have been directed justified the judge's conclusion and justifies the conclusion that the services which Mrs Evans provides are those of a full time carer. The fact that for some of the time she does things which she would have done if her husband had not been injured does not detract from this conclusion. It is neither necessary nor to be expected that a full time carer should spend every hour of the day and night engaged in providing physical services. In substance, on the judge's finding Mrs Evans does provide the services of a full time carer and her proper recompense should be assessed on that basis.
32. In my judgment, therefore, the judge was entitled to base his assessment, as he did, on rates charged for full time care and it was appropriate to scale these down as suggested by O'Connor LJ in Housecroft v. Burnett. The defendants submit that the judge's discount of 25% was too little, and Mr Purchas invites the court to determine a larger discount and to declare it to be conventional.
33. Housecroft v. Burnett does not supply any detailed basis for determining a discount, nor does it suggest that a conventional discount would be appropriate. I have already pointed out that mathematically the discount applied in Hogg v. Doyle was 25%, although no emphasis is placed on this in the summary report in Kemp & Kemp. In Nash, Alliott J applied the broad principles in Housecroft v. Burnett to ensure that the plaintiff was in a position to make reasonable recompense to his mother, father and sister. He adopted figures advanced on behalf of the defendant, which were 2/3rds of average commercial rates. As I read the judgment, it does not spell out any basis for the 1/3^rd discount beyond general assessment.
34. In Fairhurst Judge Clark QC did a valuation based on the hours of care. He said at page Q4:

"I am satisfied that the defendants' approach to the basic hourly rates is appropriate, but I prefer to base my award in this case on ¾ (rather than 2/3rds) of the Crossroad Rates. I make this adjustment because caring for Debrah undoubtedly involved special skills over and above those normally possessed by Crossroad's assistants or nursing auxiliaries, which skills have been developed by Mr and Mrs Fairhurst over the years. Accordingly I value their services somewhat closer to the full commercial rate than might otherwise have been appropriate.

On the other hand, I do not build into my calculations any uplift for the fact that the parental care is given at weekends. Whereas commercial carers are necessarily paid more for weekend work, it does not follow that these enhanced rates should be taken when considering the basis of valuation of parental care."

35. And on page Q5 he said:

"My task is to arrive at a fair overall assessment in a case in which the need for extra care clearly rose with the passage of time as the normal child's need for parental care would have diminished. Inevitably the approach must be a broad one: I remind myself that this is essentially a jury question …

I remind myself that the hours to be awarded are not the only hours devoted to Debrah in the sense of attendance and availability of care when needed: These are rendered 24 hours a day, yet nobody suggests that I should assess damages on the basis of 24 hours a day. The exercise is an artificial one designed to achieve overall fairness so far as possible."

36. It is necessary, I think, to consider why a discount or scaling down is under consideration. The assessment is to determine the proper recompense to the carer for the gratuitous services provided. If the starting point is a reasonable commercial rate for those services, an appropriate scaling down will usually be necessary because that amount is not in fact being paid or received. The payment is by way of damages, which are not subject to tax. It is accepted, I think, that, if the rates under consideration in the present case were paid to a professional carer, they would be subject to tax and National Insurance contributions of about 20%. Mr Purchas submits that there should be additional deductions because a professional carer would have expenses of travel and clothing and other matters resulting from the fact that they are working away from home. He submits that 25% as a total deduction is too little and that Mrs Evans' services in the present case were not specialist services such as justified the deduction of only 25% in Fairhurst.
37. In my judgment, there is no scientific basis for a strictly mathematical answer to this question. Nor is the exercise upon which the court is engaged amenable to such an answer. The assessment has to be a broad one, and what in the end is required is a single broad assessment to achieve a fair result in the particular case. I appreciate that a conventional discount would be convenient and might remove one variable from practical settlement negotiations. But I do not consider that one possible element of a single broad assessment should be required to be a conventional figure. On the contrary, it seems to me that first instance judges should have a latitude to achieve a fair result. For instance, if the gratuitous carer provides specialist care services, that might be reflected in the commercial rates rather than a discount to scale them down. On the other hand, I do not consider that the judge in Fairhurst was wrong to allow this element of his assessment to take effect through his discount. Although there may well be elements such as tax and National Insurance contributions which would normally feature as to contributing to a discount, there may in particular cases be other elements which can properly be reflected by a greater or lesser discount. One possibility might be if it were necessary for the assessment for future care to take account of the possibility that the services of the gratuitous carer may not be available for the entire period upon which the assessment is based. That is not to say that this consideration has got to be reflected in an adjustment to a discount; only that in an appropriate case it may be one possibility. That consideration does not arise in the present case on either parties' submission.
38. In my judgment Mr Purchas' submissions do not persuade me that the judge's assessed discount in the present case of 25% was wrong. I am not persuaded that the reasons for making a discount which may be regarded as normal should result in a deduction greater than 25%. There were no grounds in the present case for making a discount which was greater or less than normal. I would uphold this part of the judge's assessment for both past and future care.
39. I have already set out earlier in this judgment the passage in the summary of the judgment in which the judge held that allowance should be made for 8 weeks' respite for Mrs Evans. The defendants submit that the judge was wrong to allow any additional amount for respite care. Since the rate taken for respite care and the commercial rate taken as the starting point for future care generally are the same, this submission only goes to the amount of the discount for the period of respite care. The defendants' submission is that an enhanced allowance for respite care was against the evidence. Mrs Evans was quite determined that she was going to be the only provider of care because the claimant would accept no one else. He would not even accept care services from his parents. That there was no basis for the finding that 1/6^th of the future care would be provided commercially, other than a recommendation by the claimant's care expert. It was contrary to Mrs Evans' own evidence.
40. In my judgment, the judge was entitled to make the finding which he did on the evidence. Not only did Mrs MacLean strongly recommend that provision should be made for Mrs Evans to have two half days off each week to recharge her batteries, during which Mr Evans could be cared for by a suitably qualified and appropriate carer. She also recommended a respite break of one week three times a year to allow both Mr and Mrs Evans some relief. In addition, a psychiatric report on Mrs Evans based a conclusion, that she was unlikely to suffer a psychiatric illness which would seriously affect her or her ability to look after her husband, on a proviso that she was allowed to have her therapeutic breaks from the home. Although Mrs Evans' own evidence was that only she would and could care for her husband, the judge was, in my view, entitled to conclude as a matter of common sense that this simply could not continue without respite throughout the many years which were the subject of his assessment. I would reject the defendants' contention here.
41. A final ground of appeal concerns the judge's award for accommodation. His calculation was based on the following passage in his judgment:

"The claimant had housing difficulties after the accident. He could not use the stairs and lives in one room. The steps leading to the property cause difficulties. I consider that it is appropriate for the claimant to be able to purchase a site and construct a bungalow. At present, the property has 3 bedrooms and the defendants questioned why there should be a need for 4 bedrooms. This attitude ignores the children growing up and the carer may have to stay.

There are extra expenses, which I find at £15,422 which the defence accepts.

The defendants' rounding down is wholly unjustified. Applying the formula in Roberts v. Johnstone at 3%, this leads to a figure of £82,500.

With regard to the rent, there is no argument to round up the allowance to £4,000. I do not consider the claimant could afford a mortgage of that magnitude, given his wages. A rent of £200 per month is more realistic and I have worked on a annual rental of £3,000 which, applying the multiplier of 22, gives a figure of £66,000. Deducting that amount from £82,500 leads to a figure of £16,500, which I allow under this heading."

42. By mistake, the consequences of these decisions were not fully taken into the amount which the judge eventually awarded and for which judgment was given. The £16,500 was included, but the £15,422 was not. There is no respondent's notice, but it is accepted that, in so far as an appeal might succeed, any deduction must be set off against the amount omitted from the judgment.
43. Mr Purchas made two submissions. First, he submitted that the judge was wrong to base his award on the provision of a 4 bedroom house when the claimant's existing accommodation has 3 bedrooms and when the evidence did not justify a larger bungalow. Second, Mr Purchas submitted that the judge's finding that the rent for the claimant's accommodation apart from the accident would have been as little as £3,000 was contrary to the evidence. There was information that a 3 bedroom house at 72 Wood Street, Cilfynydd, Pontypridd, to which the family moved in June 1997 had an annual rent of £3,662.88, and there was no evidence that other 3 bedroom houses in the area had a lesser rent. The submission is that inflation would take an appropriate rent to £4,000 a year. As to the number of bedrooms, Mr Cooke submits that the evidence justified a 4 bedroom dwelling. The claimant's condition means that the family needs more space, not least since problems of privacy increase as the children grow up. He submits that this was a finding of fact which should not be regarded as wrong. I agree. As to the appropriate amount for the notional rent but for the accident, I do think that the judge's figure of £3,000 was insecure evidentially. On the other hand, a figure for notional rent of around £3,500 would have been justified. An adjustment of this order would not have eliminated the £15,422 which the judgment did not include. Accordingly, in my judgment, this ground of appeal fails.
44. For these reasons, I would dismiss this appeal.

LORD JUSTICE RIX: I agree.

LORD JUSTICE WARD: I also agree.

Order: Appeal dismissed with the costs of a minute order to be lodged with court. (Order does not form part of the approved judgment)