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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 >> Barry v Ablerex Construction (Midlands) Ltd [2001] EWCA Civ 433 (21 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/433.html Cite as: [2001] EWCA Civ 433

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Latham)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st March 2001

1. LORD JUSTICE JUDGE: This is the judgment of the court.
2. This is an appeal from the decision of Mr Justice Latham (as he then was) given at Birmingham on 22nd March 2000, when he assessed this claimant's damages for personal injury, loss and damage following a catastrophic injury on 22nd January 1990, on a full liability basis, at £1,392,503.70. As liability was agreed between the parties on the basis of 90 per cent/10 per cent in favour of the claimant, judgment was entered for £1,235,253.30.
3. The appeal is concerned with two aspects of the judge's assessment: in summary, first, the discount rate adopted by him and the consequent effect on multipliers for future losses and, second, the reasonable cost of the necessary care for this particular claimant, both past and future.
4. To put those issues in context, we shall adopt and gratefully repeat the judge's analysis of the material facts:

"The claimant was born on 19th July 1964. Accordingly he was 25 at the date of the accident and is now 35. ...

There is no real dispute about the extent of the claimant's injuries. He suffered a compressed depressed fracture of the skull, a rupture of the spleen, a fracture dislocation of the left hip, a ligament injury to the left elbow, a comminuted fracture to the lower end of the left forearm, and a less severely displaced fracture to the lower end of the right forearm. He required immediate splenectomy and emergency treatment to the fracture of the skull and the injury to the left forearm. He was in a critical condition for several weeks. Because of his condition, it was not possible to carry out the extensive surgery required to the left hip until 2nd May 1990. He was first allowed home in June 1990, in a wheelchair. In September 1990 he was re-admitted to hospital having developed post traumatic epilepsy, despite prophylactic treatment with phenytoin. He required further hospital admissions in February 1991, February 1992 and March 1994 for observation following epileptic fits. He required one further period of hospitalisation in 1995 in order to deal with the consequences of a wire coming loose from the repaired hip.

As far as the skeletal injuries are concerned, they all healed soundly and, save for the problem with the wire in the hip, to which I have already referred, have not significantly interfered with his life. There is some restriction of movement of his right elbow, and both forearms; there is also restriction of movement in both wrists. There is also restriction of movement in his left hip which has some effect on his mobility. There is the risk of osteoarthritic change both in his wrists and in his left hip. But essentially, such motor problems as he has are related to the head injury.

As far as the spleen is concerned, its removal renders him vulnerable to infection for the rest of his life. He takes prophylactic antibiotics every day. He does not appear to have suffered any significant infection since the accident. Nonetheless, he remains at risk, as I have already said, and in particular could not, even if he wished to, travel to any area in which he could catch malaria.

The most significant injury was the injury to his skull and brain. He is left with an obvious deformity to the head. He suffers from a significant hemiparesis and mental impairment. At first these meant that he was almost entirely dependent. He required a wheelchair. He had to be dressed, bathed, toiletted, and fed. However, he gradually improved. He became able to move around the house with a Zimmer frame. He gradually became able to deal with most of his needs himself. By the beginning of 1993, he was walking with a stick, was able to get himself up and dressed. He was able to bath himself, except for washing his own hair. He was able to carry out simple tasks around the house under supervision; there were hopes at that stage that he might be able to lead an independent life. ...

Before the accident, he was a normal, active, young man, who enjoyed sport, and lived away from home He had had one relationship which resulted in a child. At the time of the accident, he was living with a girl on what appeared to be a stable basis. Since the accident, he has been cared for essentially by his parents in a house which is being bought by them and his brother, who also lives at home, and which is intended should remain his home. His mother is now 69; his father is 73. They have not required any help with him at home. But he spends Tuesdays and Thursdays at a day centre organised by Headway, an association which specialises in providing assistance to those who have suffered from head injuries. The pattern of his life has not essentially changed for the last 6 years. He is able, as I have already indicated, to get up in the morning, to dress himself, to do his teeth, and to shave with an electric razor, although his mother likes to check to ensure that he has done so satisfactorily. His mother cooks for him, puts out his clothes, washes and irons them, makes sure that he gets up in time to go to Headway on Tuesdays and Thursdays, and washes his hair in the bath. When he is not at Headway, he spends most of the day either watching television or walking. He is able to walk independently in the area around his house, and clearly obtains pleasure from this. He used to do so with his father until his father was no longer able to walk the same distance as the claimant can. The fact that he can now walk further than his father is clearly a matter of great pride to him. He is able to travel by himself to Headway, which involves a change of bus en route, which he manages without difficulty. He is also able to visit his sister who lives nearby and a friend that he has made at Headway.

He therefore leads a circumscribed and relatively solitary life. His mental condition will not improve. He will never be able to work again. His mother says that she is happy to continue caring for him in the way that she has for the next four years or so. But she will by then be in her seventies; and it is accepted by everyone that she will then need help until she can no longer provide any care herself, after which the care that she has provided will have to be replaced. Neither the claimant nor the defendant envisages that it would be either necessary or appropriate for him to be placed in a residential home. Both sides, with different proposals to achieve this objective, envisage that he will be able to remain at home leading a semi-independent life. Apart from matters of detail or emphasis in relation to the various heads of damage which are claimed, the essential issue is the extent of the continuing care that will be required by the claimant after his mother can no longer provide it. ...

It is agreed that there is a continuing risk of his suffering epileptic fits, despite taking medication. This is assessed at 6%. This not only precludes him from driving, but also exposes him to a not insignificant risk of further injury. I was able to watch the claimant not only as he gave evidence, but also throughout the trial. His physical disabilities resulting from the hemiparesis are obvious, affecting, as they do, his ability to walk and his ability to manipulate items, such as documents. He also gave the appearance of being somewhat simple.

However, although the latter indicates that there has been some intellectual impairment, the extent of the impairment, in comparison to his pre-morbid state, is not easy to assess. He was examined by Doctor Rowan, a consultant clinical psychologist in June 1998. His full scale IQ was assessed as 76, which is at the very bottom end of normal."

5. It is not essential for us to outline each item of the calculation of damage which went to make up Mr Justice Latham's total figure. On the basis of full liability, general damages were assessed at £90,000 and interest on those damages at £9,000. We understand that in the light of the decision in Heil v Rankin [2000] 2 WLR 1173, those figures have been increased by agreement.
6. The claimant's past loss of earnings were assessed at £79,000 and interest on that figure at £30,020.
7. For his future loss of earnings, the multiplicand was agreed at £10,171.80 and the appropriate multiplier was assessed by Mr Justice Latham at 21 years. However, to allow for the uncertainties of employment in the construction industry, with its constant risk of unemployment, the multiplier was then reduced to 18 years. The total figure was therefore £183,092.42.
8. So far as care was concerned, it was common ground that the claimant had required, and had received, very substantial care indeed from his family. The judge approached the case on the basis that the vast amount of care required in the immediate aftermath of the accident had gradually reduced, so that from January 1993 the claimant required, and was given, six hours of care daily. That produced a figure of £67,789 together with interest of £25,759 for past care. For the immediate future, post trial, the judge took the same number of hours of care for the first 13 years of the multiplier, dividing that into three, five and five year periods, and producing totals of £26,444.25, £70,428.80, and £84,240. But for the remaining 14 years, he concluded that the reasonable care of the claimant involved attendance and support on a daily basis for 24 hours every day. That produced an overall figure of £602,000. There were linked Headway costs, to which the judge took a 27 year multiplier to a multiplicand of £3,515 annually, which produced a total figure of £94,910.40.
9. All the judge's assessments from January 1993 are criticised as a significant overestimate, irrespective of the argument based on the discount rate and the appropriate multiplier.
10. The assessment of the relevant multipliers - 18 years for future loss of earnings and 27 years for cost of future care and Headway costs, respectively - depended on the application of a discount rate of 2 per cent which, after a careful analysis of the speeches in the House of Lords, the judge deliberately reduced from the 3 per cent guideline formulated by the House in Wells v Wells [1999] 1 AC 345.
11. The submission for the appellant was that the judge's decision was unjustified. It was inconsistent with Wells v Well itself and, indeed, with the decision of this court in Warren v Northern General Hospital Trust [2000] 1 WLR 1404. To the extent that Wells v Wells acknowledged the need for a degree of flexibility in the discount rate to take account of significant economic changes, it was suggested that in any event no sufficient change had occurred since July 1998, when Wells v Wells was decided. In any event, the effect of Mr Justice Latham's decision would be to produce uncertainty where there should be none (Wright v British Railways Board [1983] 2 AC 773).
12. For the claimant, Mr Justice Latham's decision and his analysis of the reasoning in Wells v Wells was supported by Mr Jeremy Cousins QC as a proper reflection of the policy which had underlined that decision - in summary, long-term economic security for claimants who had sustained major injuries of the kind sustained by Mr Barry - and, in any event, in the light of subsequent economic changes since July 1998. Moreover, Mr Cousins argued, although Wells v Wells provided valuable guidance, it did not produce any binding or final principle of law (Lawrence v Chief Constable of Staffordshire [2000] PIQR 349). As to certainty in litigation, Wright v British Railways Board was concerned with interest rates, not discount rates, and therefore with allowances to be made for delay in the receipt of payment rather than forming part of the actuarial calculation of future loss.
13. In our judgment there is a short answer to these contentions. Wells v Wells was decided, as we have already said, in July 1998. The House of Lords provided this Court and courts of first instance with guidance about discount rates. While not purporting to provide any immutable or near immutable principle of law, there would have been little point in the House of Lords providing guidance to lower courts unless it was intended that the guidance should be implemented at least for a significant period. As to how long that period should be in this context, as we shall see, the House of Lords gave guidance on that subject too. Mr Justice Latham's decision in this case was given on 22nd March 2000, something just over 18 months after the decision in Wells v Wells. The judgment of the Court of Appeal in Warren was given on 4th April in relation to a judgment at first instance given two months earlier in late January. If Mr Justice Latham had had the advantage of the decision in Warren, he would not have felt it appropriate or necessary to attempt his meticulous analysis of the speeches of their Lordships in Wells v Wells. Instead, he would have focused on the judgment of this Court given by Stuart-Smith LJ, rejecting precisely the argument which was accepted and adopted by Mr Justice Latham in the instant case. For present purposes, the significant ground of appeal in Warren was that "the judge was wrong not to calculate multipliers in respect of future pecuniary loss on the basis of a rate of return of 2 per cent." The judge below had decided that he was precluded by the decision in Wells v Wells from reconsidering the appropriate rate before the Lord Chancellor set a new rate under the Damages Act 1996, and he went on to hold that, "even if he was not so precluded, he would not alter it".
14. Asking itself the simple question, "Can the court set a rate different from 3 per cent?", this Court in Warren concluded that it could not do so. Giving the judgment of the court, Stuart-Smith LJ said:

"All their Lordships in Wells v Wells [1999] 1 AC 345 considered that the appropriate rate was 3 per cent ... Three members of the House of Lords clearly stated that the rate should not be altered until the Lord Chancellor set a rate under the Act ...

Mr Irwin [counsel for the claimant] further submitted that these statements were not necessary for the decision and not binding. We do not agree. The House clearly considered it was part of their decision to lay down guidelines. It is part of the guideline to say for how long it should operate or how it should be altered. Even if it was not part of the decision, we do not feel free to depart from an opinion so clearly expressed by the majority of the House."

15. Later in the judgment, on this topic, Stuart-Smith LJ concluded:

"... the reduction in the ILGS return rate alone is not a sufficient change of economic circumstances to justify a change in the discount rate before the Lord Chancellor sets a rate ... All members of the House were aware that the ILGS rate was liable to fluctuate; indeed it had already shown discernible decline at the time of that hearing. The need for certainty to facilitate settlements coupled with the undesirability of extensive evidence from accountants, actuaries or economists with a view to persuading courts to change the discount rate, militates strongly against any court seeking to do so before the Lord Chancellor has acted under the Act of 1996."

16. No one doubts that the House of Lords in Wells v Wells was laying down guidelines for the assessment of the discount rate. As we all know, guidelines are not tramlines, and individual cases may demand exceptional treatment and the flexible application and adjustment of guidelines as appropriate. But, as Warren makes clear, in Wells v Wells the period of the application of the guidelines was linked to the settling of rates under the Damages Act 1996 by the Lord Chancellor. We were told by counsel in the present appeal that it is thought that the Lord Chancellor will be settling the appropriate rate in about two months time, and this delay itself gives an indication of the very many factors which are appropriate to be taken into account and which are not confined to the assessment of damages for claimants who have suffered major injuries. While we await the Lord Chancellor's decision, the value of certainty to assist litigants to achieve realistic and fair settlements and to avoid protracted and expensive trials, lent particular emphasis by Stuart-Smith LJ, remains as valid now as it was then.
17. In our judgment we are bound, and the judge below would have been bound, both by the decision in Wells v Wells itself and its analysis by this Court in Warren, to have assessed the discount rate at 3 per cent, rather than 2 per cent. The entire usefulness of the guidance in Wells v Wells would be completely undermined if, absent circumstances particular to the individual case, the court applied different discount rates to the cases of the two individual claimants, Mr Warren and Mr Barry, whose claims for damages for major personal injuries were decided at first instance within two months of each other, and without any rate having been set in the meantime by the Lord Chancellor.
18. In those circumstances, the application on behalf of the claimant to adduce fresh evidence about general economic trends since the hearing before Mr Justice Latham is refused. In this case, we would have been bound to reach the conclusion that we have in any event. The appeal on this part of the case will therefore be allowed.
19. The agreed effect on the calculation of the multiplier for future loss of earnings is to reduce it by 18 years to 16 years and, on the multiplier for future cost of care, to reduce it from 27 years in total to 22 years. It was not argued that the sub-division should be other than three, five and five years, and then nine years instead of 14 in relation to long term care.
20. We can now turn to the second issue, the assessment of the claim for the claimant's care.
21. The evidence before the judge included, and the starting point for his assessment of the needs of the claimant was, his judgment of the evidence of the claimant and, perhaps more particularly, that of his mother. Expert evidence was also provided on his behalf by Dr Heafield, a consultant neurologist, and a care expert, Mr Talbott. The evidence from the defendants was given by Dr Boyer, who was not called as a witness because she was unavailable and who, when she wrote the first report which was put before the judge, had never seen the claimant personally. Indeed, no report from her after she had met him was put before the judge. She paid close attention to, and seemed substantially to have been influenced by, the evidence of the care expert for the defendants, Mrs Fowler. The defendants also relied on evidence from a consultant neurosurgeon, Mr Hamilton, on the care issue, but he accepted that he had never visited the claimant at home nor participated, when he was in practice, in the making of care arrangements in circumstances such as these.
22. In addition, the judge was supplied with a note of a discussion between Dr Heafield and Dr Boyer about the issues in the case, both in relation to areas of agreement, of which there were many, and also those areas where they were unable to agree. We shall return to that document later in this judgment.
23. Mr Justice Latham was not assisted by the fact that there were some major clashes of opinion, and inconsistencies between the contents of written reports and then the subsequent oral testimony of at least some of the expert witnesses when their reports were analysed forensically. Thus, for example, Mrs Fowler's written reports spoke of one and a half hours of daily care as reasonably appropriate, but in evidence she spoke of two hours of such care, together with a further two hours or two and a half hours of what was described as "stimulation" (though, more realistically, the appropriate word would be "motivation") for Mr Barry. Mrs Fowler spoke, in 1997, of the claimant's parents ceasing to provide for their son's care needs when they reached 65. On that basis, an agency should have been employed from about 1996. Yet at trial she referred to their continuing provision of care when they were both either approaching or rather over 70 years of age. Similarly, however, Dr Heafield's evidence was also open to significant criticism, in that in his report he overestimated the extent of the claimant's continuing disability or, perhaps more accurately, underestimated what the claimant could manage for himself. His assessment overall was significantly more pessimistic than that provided by the reports from Prospect Hall in 1993 and also the evidence about how life operated in practice given by the claimant and his mother, who told the judge what he could and what he could not actually manage.
24. It is unnecessary to give any further examples to illustrate that the judge's task in this case was far from straightforward. He was, in effect, required to analyse the extent of the claimant's disability from 1993 and, for the short and long term future, the extent of the care and support which would be appropriate to maintain what, in reality, was a very badly damaged quality of life.
25. The essential fact which most impressed the judge was the extent of the progress which the claimant had made and the contribution to it of the warm support and care he received in his parents' home. It has, of course, become the convention to translate the inestimable value of the presence of a member of an injured man or woman's family into an expert's calculation of the number of hours of care which all this involves. We were, if we may say so, impressed with Mr Browne's forensic analysis and detailed trawl through the evidence to demonstrate how the number of hours had been over-assessed by the judge. It seems to us, however, that in this kind of case, mathematical computations can lend an apparently convincing, but potentially spurious, weight to arguments deployed by both sides. The answer so produced can be quite unrealistic, either over-extravagant or parsimonious, for the particular requirements of the individual claimant himself. In circumstances like these, what the judge must do, and what Mr Justice Latham was here anxious to achieve, was an analysis of the harsh reality of what the claimant had lost and how reasonably to provide that his already seriously damaged quality of life should not deteriorate for lack of sufficient care and support. Thus, in the long term, when this claimant's parents themselves are beset with the tribulations of old age and infirmity and, indeed, when eventually they die, his need for support could not, in Mr Justice Latham's view, be assessed simply by taking the number of hours during which "formal" care had to be provided, without taking account of the immense benefit to him of the motivation and stimulation provided by the constant supervision currently provided by his mother, or of the loneliness and social deprivation and, particularly important, the danger to his safety which will confront him and which, if he is left alone, would cause his already damaged condition to deteriorate to the levels from which it emerged, thanks to his parents' care, in the immediate aftermath of the accident. That is what Mr Justice Latham meant when he said, as he did, that this claimant was entitled to more than just "getting by".
26. Paragraphs 29 to 34 of the judgment below contain Mr Justice Latham's detailed findings. We do not propose to repeat them. There is, however, a clear and unequivocal finding of fact which, in so far as it is possible to summarise, can be expressed in this way. Without full-time support, provided now and for the immediate future by his mother and, when she is unable to do so, by an outside carer, this claimant's condition will deteriorate. Someone will be required to be on hand throughout the day and night, not simply to cope with the household chores, but also to ensure the claimant's safety and his continuing motivation. In effect, he is slightly simple. His personality is not easy. He is badly disabled physically. That may well deteriorate. He is at constant risk from epilepsy and septicaemia. Putting all this together, it seems to us that it is hard to envisage how it could be suggested that the claimant could readily manage to leave his home and return by himself to an empty house, or how he could be expected to cope without the constant supervision of his mother. In our judgment, the findings made by the judge were fully justified by the evidence.
27. The starting point is the agreed note of the summary of the telephone call which took place between the two experts called on each side, Dr Heafield and Dr Boyer. Although we do not propose to set out the first ten or so paragraphs of the points of discussion and agreement contained in the agreed note, it is necessary to quote directly from some of the subsequent paragraphs as follows:

"13.Mr Barry has limited capacity for independent living and currently lives with his family. The extent of family support is unusually attentive and a factor in the degree of apparent independent living which is seen. [Our emphasis]

14.Mr Barry follows a supervised regime of daily activity. Spontaneous independent living and choices to undertake unrehearsed activities are not possible without supervision.

15.Mr Barry is able to wash, prepare limited snack meals and dress himself. There may be some difficulties with toiletting. He has no incontinence away from home.

16.Mr Barry is not responsible for his laundry and ironing but could be taught these tasks and adaptations to his clothing have been required.

17.Mr Barry needs supervision to ensure that he takes his anticonvulsant medication.

18.In view of the splenectomy following abdominal trauma, Mr Barry may be at risk of septicaemia illness and will need to take penicillin daily for the rest of his life. ...

20.On current levels of functioning, Mr Barry needs between 2 and 6 hours per day of assistance, supervision and prompting. Allowance for future potential need should be made."

28. The two hours reflected Dr Boyer's view; the six hours, Dr Heafield's. At that stage Dr Boyer's view was based on information from Mrs Fowler which, as we have already indicated, was not adhered to by her in the course of her evidence at trial, and in any event the judge rejected her evidence in relation to this issue and accepted the evidence of Mr Talbott supporting six hours a day.

"21.In the future when his parents die, or prior to this when they become too old to continue the current level of care, Mr Barry will experience a deterioration in his quality of life.

22.Any supervision could not match the current provision which, it is acknowledged, has contributed to the current level of functioning.

23.Mr Barry has current access to 24 hour supervision which is reliable and predictable.

24.We are unable to agree that he could live alone in the future without 24 hour supervision without compromise to his safety."

29. That was the essential issue. Dr Heafield supported 24 hour supervision; Dr Boyer, much less.

"25.Apart from laundry, ironing, shopping, cooking and cleaning, this supervision amounts to reminders for those daily activities he can undertake. Safety in the home is an issue which without ease of access to supervision might be compromised.

26.Mr Barry appears to demonstrate a great deal of independence. This appears to be the case, but is as a consequence of learned routines which enable him to function satisfactorily on a day to day basis. He has a limited repertoire and limited capacity for learning. [Our emphasis]

27.In the event of an inter-current illness Mr Barry is likely to need 24 hour supervision and assistance. This is provided by his family but in the event of their absence flexible reliable arrangements would be needed for his care. ...

30.Assessments of the disability demonstrated by Mr Barry as a consequence of his brain trauma reflect the current position. There remains the potential for loss of current performance and therefore the need for further more intensive home care. This should be borne in mind.

31.Mr Barry is not able to manage his own finances and arrangements would be needed to accommodate his future needs for reliable supervision of income and expenditure.

32.The extent of abnormality of his gait will place abnormal stresses on the joints and early degenerative changes are possible."

30. Ignoring paragraphs 20 and 24, there is, in reality, very little serious dispute between Dr Heafield and Dr Boyer. The rest of the picture is clear. There is a need for supervision. There are worries about the fact that he appears to be competent and coping. There are dangers which could arise from his failure to take his anticonvulsant medication and his penicillin to cater for the risk of septicaemia. There is a need for supervision to ensure that he remains at his current standards.
31. On this single issue, to be decided by the judge, perhaps the most important evidence at the outset is summarised in his judgment. It came from the claimant's mother, a lady to whose care enormous tribute was paid throughout the hearing before the judge and, indeed, before us by counsel for the defendants. The judge summarised it in this way:

"It is her belief that he would not be able to cope without somebody in the house at all times; although she does not have to cope with any problems at night other than emptying his potty, she clearly believes that it would not be safe or appropriate to leave him alone overnight."

32. Of course, the mother's opinion could not be decisive of the case. The judge had to consider the rest of the evidence, and he particularly focused on the evidence of Dr Heafield. He did not have any oral evidence from Dr Boyer. He did have, however, her written report, and he referred to it. We shall quote part of the text:

"Reports indicate that he is able to perform activities such as making himself a snack in the structured situation at Headway. Also that he can perform these activities and others such as vacuuming if he is prompted to do so. It is probable that the supportive environment with family members present all of 24 hours actually allows him to perform to his maximum."

33. The judge attached weight to that report, but he then analysed the evidence that he had received from Dr Heafield. It is unnecessary to recite the whole of the relevant passages of Dr Heafield's evidence but, to illustrate its nature, the doctor said, for example:

"... support in its broadest sense should be provided at a 24 hour level in my view."

34. He also said:

"... Dr Boyer acknowledges as I do that [Mr Barry] needs prompting and it's clear that he would slip back into constant television watching without accompanied supervision of some description, and that is the view expressed by Dr Boyer as well as myself."

35. He said later:

"It's been heard that he could spend two or is it three hours alone safely. One wouldn't anticipate wishing to leave him on a nightly basis for hours on his own. On the contrary, that would be inappropriate."

36. Then, in answer to some questions by the judge at the end of his evidence, he said:

"... I don't believe that you can compart[mentalise] or subdivide the day into a series of tasks, it's a very fluid thing, they move and smoothly run seamlessly hopefully into each other ..."

37. Then, following further questions by the judge, there was this exchange between the judge and himself:

"A.... if you compare it with the getting by that goes on with -----

Q.... I'm not going to give him what's necessary to get by, I've already indicated where I start from.

A.Well, that's my concern."

Q.Where I start from is what I said earlier that he's entitled in my judgment as a matter of what's necessary subject to anything anybody says to me later to that which will enable him to function at least at the level that he's functioning at the moment. And that I think is what yours is?

A.That's what I'm saying."

38. Having allowed for the element of overstatement in the reports from Dr Heafield, the judge was entitled to accept his evidence; and, in summary, that is what he did. He recorded the criticisms, acknowledged their force, and then, having taken account of those matters, he expressed himself in this way:

"I am quite satisfied that the quality of life which this claimant at present enjoys is due to the existence of support on a 24 hour a day basis within the home. ... I accept [Dr Heafield's] assessment that the claimant will always require someone on hand 24 hours a day in order to ensure not only that the ordinary chores of cooking, cleaning, washing and looking after the home are carried out, but also that he is safe, and sufficiently stimulated to carry out such activities as he is able to carry out."

39. He then went on to consider the situation which would arise when Mr Barry's mother was no longer able to give the support that she did, and said:

"... a regime will have to be devised which replaces the support that she gives."

40. Rejecting the evidence of Mr Hamilton and Mrs Fowler, the judge said:

"... I am satisfied that he needs someone available all day; and I share Doctor Heafield's anxiety about his being left for any lengthy period overnight. ... The difficulty seems to me that [Mr Hamilton's and Mrs Fowler's] solution carries with it unacceptable risks as I have already identified, not only to the claimant's safety, but also to his continued functioning."

41. We can see no possible basis for interfering with those findings of fact.
42. We were invited to check the findings and the consequential assessment of damages by Mr Browne against, so to speak, ordinary financial affairs by looking at the figures which the mother would have had to earn if she had been living outside the home doing, if I may put it this way, ordinary work. We are undeterred by looking at the figures in that way. It is perfectly plain that the judge himself sought to maintain a sense of proportion about the whole of his findings; in particular, by allowing for a 13 year multiplier to the first three periods of care, when it is hoped that the claimant's mother will continue to be able to help care for and supervise Mr Barry. The judge assessed damages on the basis that the need for full-time outside care would only become necessary and would therefore be postponed until his mother was 82 years old and his father 86. We obviously must all hope that she continues to enjoy good health and, even if she does enjoy good health, that her husband's health does not impose any additional demand on her, greatly increasing the burdens which she is currently taking on for her son.
43. However all that may be, in the result, the judge's findings on the evidence in relation to this issue are unassailable and, so far as the second area advanced in support of the appeal is concerned, we are satisfied that the arguments on behalf of the defendants cannot be sustained.
44. Turning to the practical consequences of the judgment, and subject to any submissions by counsel about the mathematics, the effect of reducing the multiplier for future loss of earnings from 18 years to 16 years will be to reduce the judge's assessment from £183,092.40 to £162,748. By reducing the multiplier for Headway costs from 27 years to 22 years, the figure assessed by the judge at £94,910.40 will be reduced to £77,334. Finally, by reducing the multiplier for the cost of future care in the long term from 14 years to 9 years, that figure will be reduced from £602,000 to £387,000. Subject to the arithmetic, that is the order that we shall make.
Order: appeal allowed in part; counsel to lodge with the court agreed judgment figure; no order for costs until 7th February 2001, and from 7th February 2001 the respondent's costs to be paid by the appellant on the standard basis; funded client assessment; permission to appeal to the House of Lords refused. [DOES NOT FORM PART OF APPROVED JUDGMENT]