Mr. Justice Jack : Introduction
- The claimant, Maurice Hickman, claims damages against his solicitors, Blake Lapthorn, and counsel, Mr David Fisher, for their alleged negligence in connection with the settlement of an action which he had brought against Joseph Brame and the Motor Insurers Bureau.
- On 27 September 1995 when Mr Hickman was just past his seventeenth birthday, Mr Brame came into the Bricklayers public house in Swanmore near Southampton. He suggested to Mr Hickman who was there with his father that he accompany him on the short journey to Bishops Waltham, about two miles away. His father agreed to him going, and he and Mr Brame set out in a Ford Fiesta van which Mr Brame had recently acquired. After a short distance Mr Brame lost control of the vehicle. It left the road and collided with a telegraph pole. Mr Hickman was not wearing his seat belt. He sustained severe head injuries and did not regain consciousness for a number of days. He continues to be disabled. Mr Brame was later convicted of dangerous driving. He had previously been prosecuted in respect of driving offences including driving without insurance and was subject to a period of disqualification from driving, which was still in force on 27 September 1997.
- On 21 November 1997 the defendant solicitors, Blake Lapthorn, were instructed on Mr Hickman's behalf. The case was handled by Mrs Clare Howard, a solicitor in the firm's office in Fareham. As Mr Brame was uninsured, she found herself dealing with the Motor Insurers Bureau, which nominated Lombard General Insurance Company Limited to act on its behalf. It appeared at first that the MIB would accept liability and would make an interim payment. However by letter of 8 April 1997 the MIB stated that Mr Hickman was excluded from the benefit of the Uninsured Drivers Agreement 1988 by reason of clause 6 of the agreement, he being a person 'who knew or ought to have known that the vehicle was being used' without valid insurance. On 16 April 1997 Mrs Howard instructed the second defendant, Mr David Fisher, to advise on the strength of Mr Hickman's case – which meant, in effect, on the strength of the clause 6 defence, and to settle particulars of claim. For this purpose he was provided with copies of the medical reports which Mrs Howard had secured the previous year and which had been disclosed to the MIB. In his opinion dated 25 April 1997 Mr Fisher advised that Mr Hickman had a 60/40 chance of succeeding on liability against the MIB. His opinion was accompanied with draft partic ulars of claim. The particulars referred to the reports of Dr Paul Lewis, a neurologist, and of Dr Freda Newcombe, a neuropsychologist. Proceedings were commenced in the Portsmouth County Court on 28 May 1997.
- The medical advice had been that any improvement in Mr Hickman's state would occur in the first two years after his accident. Dr Newcombe had advised in the autumn of 1996 that it was vital to appoint a case manager to ensure that Mr Hickman received appropriate help and made such progress as he was able to. But money was required for this and there was none available. The MIB would not pay. To deal with this situation Mrs Howard decided that the way forward was to get a decision on liability as soon as possible. If successful, that would enable her to obtain an interim payment from the MIB, which would pay for a case manager and rehabilitation. Following the completion of that, further reports dealing with the permanent effects of the accident would be obtained. The quantum of Mr Hickman's claim could then be agreed or determined by the court. As the first step, on 13 August 1997 an order was obtained for a split trial. The date for the trial of liability was fixed as 27 November 1997. On 5 November Mr Fisher advised in conference. Mr Hickman and his parents attended with Mrs Howard. The note of the conference records that Mr Fisher advised that the case on liability, that is the clause 6 defence, was 'finely balanced'.
- On 27 November 1997 Mr Hickman attended with his parents at the Portsmouth County Court as did Mr Fisher and Mrs Howard. The MIB intended to call Mr Brame as a witness, but he did not attend. Mr Fisher felt that this was not in fact to Mr Hickman's advantage because by cross-examining Mr Brame he had hoped to establish that he was essentially dishonest, in contrast with Mr Hickman. There was some delay while they waited to see whether Mr Brame would arrive. The MIB then made an offer to settle the case for £50,000 and costs. That was refused. There was then probably a further offer of £60,000 which was also refused. Finally the MIB offered £70,000, or, as Mr Hickman and his parents say it was reported to them, £75,000. These offers were discussed between Mr Fisher, Mrs Howard and Mr Hickman and his parents. I will return to the detail of that. At some point Mrs Howard had noted down some figures relating to the valuation of the claim. A value of £144,000 before a deduction for contributory negligence for not wearing a seat belt was recorded. Mr Hickman decided to accept the sum offered. The parties then went into court and the judge was told that the case had settled. She was not told the amount.
- On 2 December 1997 Mrs Howard wrote to Mr Hickman referring to the settlement of the action after lengthy negotiations for £70,000 and the need to repay recoupable benefits – which were likely to be of the order of £8 – 10,000. Mr Hickman received the balance. Some went into a house which his parents purchased jointly with him. The balance has been spent. No case manager was appointed. Mr Hickman did not undergo any rehabilitation. Mr Hickman got his first job as an adult in February 1998. He has tried to work on a number of occasions. He has not succeeded for any length of time. He has not worked for some years, and has given up hope of being able to work. For a period he suffered from recurrent ear infections. He was operated on and it appears that this problem is largely resolved.
- On 14 June 2000 Mr Hickman's present solicitors wrote to Blake Lapthorn saying that they had been asked to consider the file relating to his claim. The action was commenced on 25 November 2003. It was just within the six year period of limitation.
The case in summary
- In his closing submissions on behalf of Mr Hickman Mr Simon Dyer put Mr Hickman's case on the single basis that Mr Fisher and Mrs Howard had advised that the claim had been settled for too low a sum primarily because they had not taken account of the very real possibility that Mr Hickman would be incapable of work and that on that basis his claim would be worth £500,000 or more (less a deduction of 25 per cent for contributory negligence for not wearing a seat belt). He submitted that Mr Hickman should have been advised of the potential size of his claim on that basis, and that if he had been he would not then have accepted the offer made by the MIB.
- I have said 'primarily' in the previous paragraph because Mr Dyer said that Mr Fisher should have stuck with his assessment made in his opinion of 25 April 1997 that Mr Hickman had a 60 per cent chance of winning on liability – that is, on the clause 6 issue. At the pre-trial conference on 3 November he assessed the chances as 'so close' meaning it was a fifty-fifty case. That was also his view at court on 27 November. The issue was whether Mr Hickman ought to have known that Mr Brame was still disqualified when he drove him and was uninsured. That was very clearly an issue which could go either way. I am quite satisfied that Mr Fisher was not negligent in the view finally he took. I have dealt with the point at this stage so it can be put aside.
- In his closing submissions Mr Dyer abandoned the allegation that Mr Fisher had been negligent in not raising the point much later decided by the House of Lords in White v White [2001] 1 WLR 481 based on the terms of the Second EEC Motor Insurance Directive 84/5/EEC.
- There was also a subsidiary point that Mr Hickman and his parents asserted that they had been told that the final offer was £75,000 and not £70,000. I am satisfied that they were correctly told that the offer was £70,000. There is no reason why they should have been told it was £75,000 when it was not. Mrs Howard referred to the figure of £70,000 in her letter of 2 December 1997. Mr Hickman and his mother said that the letter was not received by them. It is plain from the attendance note made by Mrs Howard of Mrs Hickman's telephone call to her on 9 December 1997 that the letter had been received. The payments received by Mr Hickman were based on a settlement figure of £70,000, and no complaint was made. This issue also can be aside.
- The issue whether Mr Fisher and Mrs Howard were negligent in connection with advice that was given to Mr Hickman at court on 27 November 1997 involves an examination not only of what happened on that day but of preceding events which are relevant to their knowledge. It is necessary therefore to revisit the history in rather greater detail than outlined so far.
The events in detail
- Mr Hickman first saw Mrs Howard when he attended at Blake Lapthorn with his mother and aunt on 21 Nove mber 1995, nearly two months after his accident. The meeting was mostly concerned with the circumstances of the accident. Mrs Howard had worked for Blake Lapthorn since 1992 and had qualified as a solicitor in 1992. She specialised in personal injury work, largely arising from road traffic accidents. She worked under the supervision of one of the partners, Alison McClure, to whom she referred when needed. She had not previously had to value a head injury claim.
- Mrs Howard saw Mr Hickman again on 20 December. She learnt that he was having treatment at Winchester Hospital from Mr Black, a clinical psychologist.
- Mrs Howard arranged for a number of reports to be provided. They were:
(a) Dr Paul Lewis – 11 March 1996 – consultant neurologist and neuropatho logist. The report records that Mr Hickman was initially on a life support machine, and that, according to his mother, he started regaining consciousness four days after the accident but was not fully aware of his surroundings until 16 days afterwards. In his conclusions Dr Lewis stated:
"In the accident of 27th September 1995 Mr Hickman sustained severe head injury with skull fracture, brain swelling and prolonged impairment of consciousness. His post-traumatic amnesia, three week long, indicates very severe concussional head injury. Excessive accelerational forces acting on the brain inside the skull would have produced multiple tears of nerve fibres in the substance of the brain, and probably bruising of undersurface of frontal and temporal lobes. Mr Hickman's subsequent impaired memory, impaired concentration and altered mood are major consequences of such physical brain damage, which is irreversible. Brain injury has resulted in impaired muscle control on both sides of the body. Mr Hickman's head injuries are also responsible for his right-sided hearing loss. Left-sided brain damage is responsible for altered sensation on the right side of the body.
Mr Hickman can expect to improve for two years or more from the time of the accident, and definitive prognosis is not yet possible. Head injuries as severe as those sustained by Mr Hickman commonly cause permanent impairment of cognitive function and emotional control. Patients with brain injury as severe as Mr Hickman's are commonly unable to obtain or maintain remunerated employment.
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For the purposes of giving a definitive prognosis I would like to see Mr Hickman again in 12 to 18 months time. He hopes to resume his studies in September 1996 and at re-examination I will have more information on which to base an assessment of his present and future capabilities."
(b) Dr Freda Newcombe - 19 September 1996 – consultant neuropsychologist Her report included:
"This young man seems to be wrestling with a frustrating dilemma. On the one hand, he wants to show that he is as competent as his uninjured peers. On the other hand, he is fully aware of the cognitive difficulties that he is confronting. From the positive point of view, he seeks advice but he will need very systematic and regular monitoring to survive this very difficult period.
His parents identified as the most salient change that from being extremely easy-going to extremely irritable. They also noted considerable changes (four scale differences on a five-point scale) in other areas; they perceive him now as quiet, tending to rely on others, more childish and insensitive, and much less kind, affectionate and energetic. They perceive him now as extremely unreasonable and unstable." Her conclusions included:
"In September 1995, Maurice Joseph Hickman sustained a very severe head injury, as indicated by the long post-traumatic amnesia (loss of continuous, day-to-day memory after head trauma); PTA is the best available single biological measure of severity of brain injury. The severity of the injury is also apparent from the detailed report of Dr Lewis, the Consultant Neurologist and Neuropathologist.
This head injury has had physical, mental, and psychosocial sequelae for which a long-term prognosis would need to be reconsidered some two years after the injury.
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It is imperative for this young man to have expert and specialised guidance for the next two years. To that end, I strongly recommend the appointment of a case manager to work with him and develop acceptable and tractable programmes of physical and intellectual rehabilitation that are, at least for a trial period, home based. Focused and experienced help at this stage may serve to combat a combination of frustration, depression, and debilitating loss of confidence that could threaten his chances of successful vocational training and satisfactory employment prospects."
Mrs Newcombe also wrote a letter dated 24 September 1996, in which she advised:
"I am assuming that this is an interim report, as the general consensus of opinion suggests that measurable and significant recovery may continue for at least two years after an accident. However, I am very concerned about this young man, and for that reason, have proposed the appointment of a case manager. I would be very happy to discuss this suggestion with you if you feel that it would be helpful. It seems to me that he has reached a crucial stage where, without very specialist help, his future, if not his life, is seriously at risk." .
Mrs Howard wrote to Dr Newcombe on 27 September asking what she had in mind. Dr Newcombe replied on 31 October. She had discussed the position with Mr Hickman's GP, Dr Moore. She recommended Ms Jakki Turnbull, a psychiatric nurse, a pioneer of case management in England, as a potential case manager. She stated that funds would be required. She said:
"Given the severity of the head injury and the urgent need to sponsor a rehabilitation project with any possibility of a useful outcome and based at home, I would have hoped that a strong case could have been made. One could argue that appropriate intervention at this stage might improve the prognosis and lead to a somewhat better outcome than would be the case if no help were secured."
In a further letter of 29 November 1996 she said:
"These behaviour problems have a devastating impact on family and social relationships and also on vocational and employment potential. In Maurice's case, his temper outbursts, his lack of direction and aims for his future, and his secret distress call for urgent attention. Otherwise, his hopelessness and loss of selfconfidence will lead to a refractory condition that will become increasingly difficult to help."
(c) Dr Austin Tate – 16 October 1996 – consultant psychiatrist His reports includes the following:
"His current level of activity is severely limited. He takes the family dog for a walk but is not allowed to undertake any other activity.
On specific symptomatic enquiry, when asked about his spirits he stated "I feel pretty useless – I am not allowed to work"."
Part of his assessment reads:
"I anticipate that he will continue to improve and his emotional symptoms will improve in line with his neurological state and I would share the view expressed by Dr Paul Lewis, consultant Neurologist that he will continue to improve for up to two years after the material accident. Any improvement after that time will be very limited."
(d) Mr Douglas Worgan - consultant otolaryngologist - 26 November 1996 He found that there was still fluid in the right eardrum, with a conductive deafness. There was some tinnitus, and also a slight imbalance which Mr Worgan thought was connected to head injury by way of bruising of the brain rather than to specific damage to the inner ear. He expected this gradually to improve.
- On 3 April 1996 Mrs Hickman had a long telephone conversation with Mrs Howard. Mrs Hickman said that her son was very rude to Dr Black. She was considerably concerned and was 'now starting to realise that she is not going to get her old son back.' Following this meeting Mrs Howard took further advice within the firm as to what further experts she should go to. She was concerned about the personality changes.
- Mrs Hickman saw Mrs Howard on 25 September 1996 and reported that the appointment with Dr Newcombe had gone well. She also said that her son had become depressed and had 'become abusive, rude, bad tempered and loses his concentration very quickly. If he reads a book for more than 10 minutes or so he gets a headache and loses the gist'. Towards its end the attendance note reads:
"Mrs Hickman then asked again about an interim payment. I explained to her that the MIB could not be forced to make an interim payment but that I would request one on Maurice's behalf.
She then asked about how long this was likely to take. I said that due to the severity of Maurice's injuries, both the Neurologist and also Dr Newcombe are likely to want to seem him again two years on from the accident. Therefore we are not going to be in a position to settle his claim until at least 2 or maybe 3 years post accident. I explained that we would also need to obtain Employment Consultant's report as we would need to ascertain what, if anything, Maurice can do now by way of employment. Previously he wanted to go into the Army but really, due to his head injuries and his loss of concentration and irritability it is unlikely that he would succeed. Therefore we will need to get an expert to come and see him and discuss with Maurice what he can and cannot do and then offer various avenues which are now open to him."
On 2 October 1996 Mrs Howard reported to Mrs Hickman that she had asked the MIB to consider an interim payment of £2,500.
- On 10 October 1996 Mrs Howard wrote to the GP, Dr Moore. He replied on 28 October saying that he had seen Mr Hickman that day, as he did regularly: he was improving rapidly and was back at College and able to concentrate well. But he added in manuscript that he had just talked to Mrs Hickman. She had told him Maurice was not back at College and that he was telling him what he wanted to hear. Dr Moore was sure that this reinforced the need for further help. He thought the sooner the better. In consequence Mrs Howard pressed the MIB for an interim payment.
- On 7 November 1996 Dr Moore wrote to Mrs Howard with a review of the situation. He urged that Mr Hickman should see Ms Turnbull. He also said:
"I believe the reality is that he is not going to college at all, except to drive in with his colleagues. He sits in the car all day, he is not going into lectures at all, he is unable to settle at all and really is making little or not progress at all.
On discussion with Dr Newcombe we were both extremely concerned about this, and are of the opinion that if something is not done fairly urgently and aggressively about this then Maurice's personality and physical situation is unlikely to change, and as a result of his accident he is liable to be unemployable and unemployed for most of his life."
On 11 November Ms Turnbull wrote to Mrs Howard about the service she offered. On 14 November Mrs Howard applied to the Legal Aid Board for authority to obtain a report from Ms Turnbull. She gave 'the likely value of the claim' as £25,000(+). She stated that liability was not disputed – which was the position at that time. Authority was granted on 19 November. On 22 November Mrs Howard wrote to Mr Hickman saying that she was writing to him rather than to his mother as he was over 18. She said:
"In the meantime, I would like to obtain a further expert report. It is clear from the medical evidence we have already obtained that you have made an excellent recovery so far and will continue to do so. However, to ensure that you recover as quickly as possible, Dr Newcombe has suggested that you may benefit from outside assistance.
Dr Newcombe has recommended that we contact Jakki Turnbull who is an expert in this field. I have spoken to Mrs Turnbull and she is willing to assist and believes that you would benefit from meeting with her. Mrs Turnbull has lots of experience helping people who have had similar accidents to yourself and sustained head injuries."
It seems that the reference to an excellent recovery was part of Mrs Howard's attempt to obtain Mr Hickman's cooperation with yet another report. She knew very well what the current difficulties were.
- On 9 December 1996 Lombard wrote to Mrs Howard saying that they had recommended an interim payment to the MIB.
- Mr and Mrs Hickman said in their evidence that Mrs Hickman asked Mrs Howard what the claim might be worth on an occasion in 1996 when they went with their sister- in-law to see her without Mr Hickman. Mrs Howard had answered that she could not say: it depended on the second round of specialist advice. Mrs Hickman then asked her for a figure on an off- the-record basis. Mrs Howard then said that the claim might be worth between £500,000 and £750,000 depending on what the specialists said the second time round. This conversation was denied by Mrs Howard. When Mrs Hickman was asked why she did not raise this figure when settlement at £70,000 was suggested, she said because it did not come into her mind and then because it was off the record. Mr Hickman could not say why they did not refer to it. There is no record of any such conversation in 1996 or in 1997. I think, however, that the probability is that something along these lines did occur, more probably in 1997. The way that the figures emerged has the ring of truth. On no other occasion did the question of the value of the claim come up. It would have been surprising if Mrs Hickman had never asked, but she might well have not wanted to do so in front of her son. I think that Mrs Howard had simply forgotten about the exchange.
- On 14 January 1997 Ms Turnbull wrote to Mrs Howard enclosing her report. Her letter stated:
"I hope that my report emphasises the fact that I felt the situation in the Hickman household was really quite fragile. Maurice Hickman's behaviour is potentially quite dangerous and he needs a substantial amount of supervision to ensure that he does not get into real difficulties."
The following passages are taken from her report:
"Mr Hickman is independent in all aspects of personal care and he takes at least two baths a day. He keeps his own bedroom clean and tidy and will vacuum and dust his own room but, in common with most young men of his age, he relies on his mother for all other aspects of domestic activities of daily living. He does offer to wash up but he is clumsy and his mother is reluctant to let him do this.
Maurice Hickman suffered a very severe head injury as a consequence of a road traffic accident in September 1995. He has physical, functional, cognitive and significant behavioural difficulties as a consequence of this head injury. He is reliant on his family for help and support and has absolutely no idea about his own future.
I would concur that a case manager would be helpful for Mr Hickman and suggest that initial targets would be to begin to structure his time more effectively, increase his activity levels, improve his stamina and reduce his fatigue."
She recommended that a case manager should be appointed for an initial three month period working closely with the GP, identifying activities which Mr Hickman could and would undertake, and working to control his obsessionality and temper outbursts. That would cost £3,800 allowing for weekly visits for six weeks, and then for fortnightly visits for a further six weeks, with three hours per visit. She also recommended that a neuropsychiatrist should assess Mr Hickman in relation to his temper outbursts and obsessionality. On 15 January Mrs Howard wrote to Mr Hickman enclosing the report. She stated that Mr Black was hoping to get reinvolved in his rehabilitation. On 3 February Mrs Howard wrote to the MIB pressing for an interim payment of £10,000 to cover the first three months rehabilitation and other matters. On 18 March Mrs Howard discovered that the MIB had decided not to make an interim payment. She was told the next day that the reason was that the MIB had a clause 6 defence and enquiries were still outstanding. This was the first time that clause 6 had been mentioned. On 20 March Mrs Howard wrote to Lombard expressing her disappointment about the way the matter had been handled and that she was recommending the issue of proceedings without delay. She suggested that a split trial so the clause 6 point could be decided. On 20 March she also applied to the Legal Aid Board to raise the costs limitation figure. She gave 'the likely value of the claim' as £50,000. By letter of 8 April Lombard wrote saying they were satisfied that Mr Hickman had allowed himself to be carried whilst knowing no insurance was in force. They agreed that the clause 6 defence should be a preliminary issue.
- On 16 April 1997 Mrs Howard sent instructions to Mr Fisher to advise on the merits and to settle particulars of claim. Mr Fisher was called to the Bar in 1985. By 1997 he had acquired a substantial practice of which about half was then personal injury work. He had handled a number of heavy personal injury cases. This was his first instruction from Mrs Howard. He had been recommended to her by an office colleague.
- The instructions to Mr Fisher included the reports of Dr Lewis, Dr Tate, Dr Newcombe (and her letter of 29 November 1996), and Ms Turnbull. There was also miscellaneous correspondence. It is unknown whether this included any of the correspondence with Dr Moore. The instructions included this passage:
"We have gathered together various medical reports, all of which confirm that Maurice has sustained severe head injuries, which have affected his personality and which without proper rehabilitation, could limit his future employment prospects. It is still too early to tell how well Maurice will recover, his GP is extremely supportive and is arranging assistance from the local Social Services and psychological intervention.
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If Maurice is to make as full and as complete a recovery as possible, it is essential that the issue of liability is sorted out as quickly as possible.
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The medical reports we enclose are simply for background information."
- Mr Fisher's advice of just over four pages was dated 25 April 1997. He concluded:
"On the evidence which I have seen, I would put the prospects of success at about 60%. Mr Hickman suffered severe head injuries with damage to his brain. The medical evidence indicates that he is suffering and will continue to suffer from fairly severe neurological and psychological impairment."
- The particulars of claim which Mr Fisher drafted gave the particulars of personal injury as:
"The Plaintiff was born on 21 September 1978. He suffered severe head injuries and a whiplash injury. He was unconscious and was admitted to the Royal Hampshire County Hospital, Winchester. He recovered consciousness after four days but did not become aware of his surroundings until 16 days after the accident. He continues to suffer symptoms of pain and limitation of movement as a consequence of the injury to his neck, and to suffer from severe neurological and psychological impairment consequent on injury to his brain. The Plaintiff is and will continue to be seriously disadvantaged on the labour market. Particulars of the Plaintiff's injuries, treatment and prognosis are set out in the reports of Dr Austin Tate dated 16 October 1996 and of Dr Freda Newcombe dated 19 September 1996 copies of which are served herewith."
On his booking out form filled in to assist his clerk with charging Mr Fisher gave the approximate value of the claim as £100,000. He spent 40 minutes on the advice and 30 minutes on the particulars of claim.
- The claim form naming Joseph Brame and the MIB as the defendants was issued on 28 May 1997 in the Portsmouth Combined Court. On 30 June a defence was filed on behalf of both defendants. It denied negligence: it raised clause 6 on behalf of the MIB.
- On 9 July 1997 Mrs Hickman telephoned Mrs Howard to enquire as to progress. Mrs Hickman told Mrs Howard that Mr Hickman had become very agitated over the last weeks, perhaps because of the uncertainty of the litigation. She said that he was starting at Headway in Southampton. That was following the recommendation of Mr Black. The intention was that by attending at Headway, progress would be made with Mr Hickman's rehabilitation. In his witness statement Mr Hickman said: 'I found it very difficult as the other people there were 'worse than me' and I found it particularly difficult to eat with them because of the difficulties they had. I therefore attended weekly for just two months. I found it depressing and it did not really help me.' This was not reported to Mrs Howard at the time.
- As she had not heard from the Board's solicitors as to a split trial, on 21 July Mrs Howard applied for an order for a split trial. On 21 July she also applied for a further amendment to the legal aid certificate. She gave £500,000 as the likely value of the claim. By letter of 28 July the MIB's solicitors agreed to a split trial. In her note to a colleague who was to attend on the application Mrs Howard wrote: 'Maurice sustained serious head injuries and has not worked or been able to continue with his studies since the accident.' On 12 September 27 November was fixed as the date for the trial on liability. On 22 September Mrs Howard applied for a further amendment to the legal aid certificate. She again gave the likely value of the claim as £500,000. On 23 September the MIB's solicitors served the statements of Mr Brame and Mrs Brazil. On 26 September Mrs Howard had a discussion with the Board's solicitors in which they said Mrs Brazil had referred to the Hickma ns and the Brames as 'not nice people.'
- A conference with Mr Fisher was arranged for 5 November 1997. Mrs Howard sent him instructions on 29 October. They included the medical reports. On 4 November Mr Fisher telephoned Mrs Howard. It has been suggested that during the conversation Mr Fisher expressed the view that the Hickman family were 'not nice people'. It is plain that this is a reference to Mrs Brazil's suggestion (which Mrs Howard had mentioned in her instructions to Mr Fisher). Mr Fisher had not me t the Hickmans.
- At the conference on 5 November Mr Fisher stated that the court would be sympathetic to Mr Hickman as the innocent victim but 'this is a close one'. I have dealt with the issue whether Mr Fisher's view at the conference and on the day of the hearing that the case on liability was 50:50 was negligent, saying that it clearly was not. The note of the conference records under the heading 'MH's present medical condition':
"Mrs H explained that the hospital has now diagnosed a problem with MH's eye and that he is partially deaf in one ear. The hospital has recommended that he does not return to education yet. MH also suffers from mood swings and can be bad tempered. He also gets very tired.
DF explained that if MH gets tired and cannot concentrate for long periods then he would like to warn the court about this in advance. He explained that the court would not have read the medical reports because this trial is not about quantum. He will therefore notify the court and get them to read extracts from the medical evidence so that they are aware of the problem MH has in concentrating. It is important that they are aware of this so that they realise if MH starts to answer questions oddly, it is due to the fact that he cannot concentrate and it is not because he is being evasive. DF advised MH that if he does get tired he is to say so and the court will let him have a short break."
Mr Fisher's brief for the hearing was sent to him by Mrs Howard on 18 November. It enclosed the trial bundle, which included the report of Dr Newcombe of 19 September 1996. That was to inform the judge of the difficulty that Mr Hickman might have in the witness box. The file shows that Mrs Howard had prepared the case with the greatest care.
- The hearing on 27 November 1997 was attended by Mr Hickman, his parents, Mr Fisher, Mrs Howard and an articled clerk. There was some delay because Mr Brame did not attend. Mr Fisher took the view that this did not in fact help Mr Hickman as one might have thought that it did, because it deprived Mr Fisher of drawing the contrast between Mr Brame and Mr Hickman by cross-examining Mr Brame as to his dishonesty. Shortly before they were to go into court Mrs Howard was offered £50,000 in settlement by the MIB's solicitor. This was considered and rejected. Then an offer of £60,000 was made. There may have been a suggestion that another £10,000 was available. £60,000 was rejected. An offer of £70,000 was accepted. It was about one o'clock that both sides went into court to inform the judge that agreement had been reached. That gives some timescale to the settlement discussions.
- There is considerable difficulty now in deciding how the decision to accept £70,000 was reached. It happened 8 years ago. Mr Fisher and Mrs Howard have some recollection of the occasion, but not of the detail. They have the disadvantage that for them this was one case among many. That was not so for the Hickmans: but they have no recollection of how Mr Hickman's claim was evaluated by Mr Fisher and Mrs Howard, and their recollection that it all happened quickly is not supported by the timescale I have mentioned.
- Mr Fisher's notes made for the trial, and such notes as he made on the day have long since been destroyed. It is apparent that he made an assessment of what Mr Hickman's claim might be worth. Some notes relating to that were made by Mrs Howard, and they have survived. It is likely the notes made by Mr Fisher would have been more informative as to his thinking than what is probably a partial note made by Mrs Howard, but one cannot be sure.
- The offer put Mr Fisher particularly, but also Mrs Howard, in a difficult position. Mr Fisher had had to read the medical reports for the purpose of drafting the particulars of claim. He had not had to study them in any depth for that purpose. He had them for the conference on 5 November, and he had retained his papers for the trial. Dr Newcombe's report was in the trial bundle and he was prepared to explain Mr Hickman's difficulties to the judge. He said that he would have read through the reports before the trial to check that there were no 'gremlins' there for the trial, that is, in particular that Mr Hickman was not recorded as saying something to a doctor which was relevant to whether he knew or ought to have known that Mr Brame was uninsured. In short Mr Fisher had not previously had to give any deep thought to the value of the claim. He had put a figure of £100,000 on it for charging purposes. That is relevant to this extent: that it had not apparently struck Mr Fisher that this was potentially a never-work-again claim and so potentially very large.
- Mrs Howard was in a different position to Mr Fisher because she had studied the reports with care, making notes as to them, and had been closely involved with Dr Newcombe's concern about Mr Hickman. She was also aware of the part being played by Dr Moore. She had seen and had communicated with Mr Hickman and his mother regularly. I have recorded how she assessed the claim's value on the legal aid applications. I accept that these were not considered values. They do however suggest that by July 1997 she thought that the claim might be very large.
- Both Mr Fisher and Mrs Howard stated in their evidence that Mr Hickman appeared in November 1997 to be in a much better state than he appeared to be in court before me. They said that since 1997 he appeared to have retreated back into himself. I accept that. Mr Fisher also said that he formed the view overall, seeing Mr Hickman, talking to his parents and to Mrs Howard, that there was optimism that things were moving forward.
- Mr Fisher said in answer to a question from me that while he had no recollection of a discussion about Mr Hickman getting back to work he would be surprised if there had not been. He also said that the five year figure used for part earnings in Mrs Howard's note must have been the subject of discussion. No one gave evidence that there had been such discussions. Although it was over two years since the accident, Mr Hickman had not then tried to work. That must have been known because a figure was used for a potential wage when he did go to work which was based on what his brother earned. There does not seem to have been an enquiry as to how the rehabilitation at Headway had gone. It would have revealed that it had gone badly, and that Mr Hickman had given up on it.
- Mr Fisher accepted that he led the discussions of the offers. He suggested that Mrs Howard played an active role. My impression from the evidence – and it can be no more – is that she was comparatively silent, ready to assist but not playing an active part. I think that the Hickmans answered questions but I do not think they were actively involved in deciding what the advice should be.
- The outcome of Mr Fisher's exercise in valuing the claim was a figure of £144,000. That figure was provided as a best estimate, in round terms, of what the award of damages might be. I accept that Mr Fisher would have put it forward on the basis that it was an estimate and the right figure might be rather less or rather more. From that figure there was to be deducted 25 percent to take account of the fact that Mr Hickman was not wearing a seat belt. That produced £108,150 according to Mrs Howard's note, though £108,000 would be the right figure. If the chances on clause 6 were fifty- fifty, then the claim was worth £54,000. On that basis the offer of £70,000 was generous.
- I am satisfied that Mr Fisher formed the view, and advised, that the offer should be accepted, and that he described it as generous. Mr and Mrs Hickman were opposed to accepting it. Mr Fisher and Mrs Howard told Mr Hickman that it was his decision. To illustrate the position Mr Fisher likened it to a greyhound race with two equally fast dogs, and to the flip of a coin. He asked Mr Hickman if he would bet £70,000 on either. I am not sure that these analogies were fair. No one but a determined gambler would bet a large sum in such situations: a decision whether to accept a settlement is different. But I do not criticise Mr Fisher for urging Mr Hickman to accept a settlement which he thought was a good one. Both Mr Fisher and Mrs Howard were conscious that if the trial went badly Mr Hickman would walk away with nothing, and £70,000 was a substantial sum. Money was badly needed for his rehabilitation. The issue is whether Mr Fisher and Mrs Howard were justified in the advice which Mr Fisher gave. I find that Mrs Howard adopted that advice by going along with it and by not saying anything to the contrary.
- At the end Mr Fisher and Mrs Howard left Mr Hickman and his parents to consider what his decision would be. I do not think that they were put under any limit as to time. Mr Hickman felt that he was under a lot of pressure. I think that it was inevitable that in the circumstances he would feel under pressure. Mr Fisher had given him advice in clear terms, which was to accept the offer. There was nothing wrong about that: Mr Fisher was doing his job. Mr Hickman's parents were against it. If he turned it down, he might walk away with nothing. He decided to accept.
The issue of negligence
- It was submitted to me by Mr Graeme McPherson for Mr Fisher that I should first consider whether the advice was 'wrong' in the light of the instructions and information before Mr Fisher, and second whether it was negligent in the sense that no reasonably competent barrister would have given it. I accept that this two stage approach may often be helpful, provided that the circumstances are such that a distinction readily appears between what is wrong, or in error, and what is negligent. In Hall (Arthur JS) & Co (a firm) v Simons [2002] 1 AC 615 at 737 Lord Hobhouse put the position of an advocate as follows:
"The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made."
- The House of Lords considered the duty of counsel when advising at court on settlement in Moy v Pettman Smith [2005] UKHL 7, [2005] PNLR 24 (p.426). Lord Carswell quoted at page 443 from the decision of the High Court of Ontario in Karpenko v Paroian, Courey, Cohen & Houston (1981) 117 DLR (3d) 383 at 397:
"What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a law-suit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what at worst constitutes an error of judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error … that negligence would be found."
In Moy a barrister had advised her client not to accept an offer made at court immediately before the hearing of an application to adduce oral expert evidence. She was acquitted of negligence by the trial judge. His decision was over-turned by the Court of Appeal but restored by the House of Lords. The basis of the majority decision in the Court of Appeal (the third judge allowed the appeal on different grounds) was that the claimant:
"was entitled to a proper assessment of the prospects of obtaining more were the trial to proceed. The only proper advice that [that the appellant] could have given in the light of her own assessment of the chances of persuading the court to give leave to adduce further evidence was that the chances were 50/50. He was not given that advice."
The House held that it was not necessary for the barrister to have spelt out all her reasoning. Lord Carswell considered that, if her advice was not itself negligent, it was difficult to see how she was negligent in failing to spell out the considerations which led to that advice (page 445). The decision gives any judge considering a case such as the present good reason to pause before reaching a decision adverse to the barrister.
- Mr Dyer submitted that Mr Fisher's estimation of the claim before reductions at £144,000 was negligent on a number of grounds. He submitted that any reasonably competent barrister (I would add practising in this field) would have realised that the claim had a potential of around £500,000. He put forward the following calculation:
| General damages |
£50,000 |
– the assessment as per Mrs Howard's note. |
| Past losses (care and earnings) |
£18,000 |
- ditto |
| Future loss of earnings at |
|
|
| £192.30 per week, say £10,000 p.a., multiplier 24 |
£240,000 |
|
| Future care at £98 per week,£5096 p.a., multiplier 28 |
£142,688 |
|
| Total |
£450,688 |
|
| Add case management etc, and interest. |
|
|
The important feature of this assessment is that it assumes that Mr Hickman never works again.
- So far as can be judged from Miss Howard's note, Mr Fisher's assessment went on these lines. Mr Hickman's brother Michael was earning £150 a week. Mr Hickman was likely to earn part time £80 per week. He would have a partial loss of £70 per week for 5 years, giving a total of £18,200 for loss of future earnings. This calculation assumed that Mr Hickman would begin work immediately. That could not be so because on any view a period of rehabilitation was required. This would be such an obvious mistake, that it raises a doubt as to the usefulness of the notes. It does however suggest that the resulting figure of £144,000 was on any view rather too low. The calculation then apparently assumed that once Mr Hickman was in full time work he would then be disadvantaged on the labour market, which would attract a Smith v Manchester award of £25,000. General damages were £32,000 according to the MIB and £50,000 according to Mr Fisher. £18,000 was to be added fo r previous losses (although a figure of £27,000 appears at the top of the note). The figures thus far give £93,200 using the MIB figure for general damages. £144,200 can be reached by adding in £51,000 which is the figure on the note for care, calculated as 4 hours per day, 7 days a week at £3.50 per hour, 52 weeks per annum, giving £5,096, and so apparently using a multiplier of 10. If Mr Fisher's figure for general damages is used, the total would become £162,000. There is an obvious inconsistency between the care claim using 4 hours a day and a multiplier of 10 and partial earnings over 5 years followed by full time employment. It is in the end unclear how £144,000 was reached. What is clear, however, is that Mr Fisher based his advice on the assumption that Mr Hickman would regain full time employment. The possibility that he might not was apparently put on one side.
- It is well-known to practitioners in the field that the largest contributors in large claims are the claims for loss of future earnings and for future care, particularly with young claimants. Mr Fisher knew that Mr Hickman had suffered a serious brain injury and was still suffering from it. Dr Newcombe's report of 19 September 1996, which was in the trial bundle, referred to the need for a case manager to help combat the factors that 'could threaten his chances of successful vocational training and satisfactory employment prospects.' She had said 'It is imperative for this young man to have the expert and specialised guidance for the next one to two years.' In my view it was essential for a barrister in Mr Fisher's position to consider what the current position was as to Mr Hickman's progress and prospects before he commenced the task of putting figures to the claim. If that had been done, it would have been discovered that no real progress had been made. The failure at Headway would have emerged. It should also have been discovered that Mr Hickman did not like Dr Black and was no longer seeing him. It was known that Mr Hickman had not recommenced work. Mrs Howard could and would have fed in the information she had and her understanding of the reports. It should have become apparent that there was a very real question as to whether Mr Hickman would be able to hold down a job. I have quoted the conclusions of Dr Lewis and Dr Tate, which coupled with Dr Newcombe's identification of the urgent need for intervention would have made depressing reading in November 1997.
- It is obvious that when Mr Fisher came to court to fight the clause 6 issue he was not required to have had all the medical reports in mind, apart from Dr Newcombe's. But what he should have had in the forefront of his mind when the question of settlement arose, was that he was not familiar with the reports – assuming that that was his position. So until he had informed himself, he could not advise.
- There is no evidence that this enquiry as to the prospects of Mr Hickman achieving full time employment was embarked upon. Given the passage of time, that by itself would not establish that it was not. But Mr Fisher's omission to look at the position on the basis that there was a real and substantial possibility that Mr Hickman would not be able to hold down a job forces me to conclude that the enquiry was not pursued.
- In the circumstances the omission was clearly wrong. I consider that it was also negligent. No reasonable and competent practitioner should in the circumstances have omitted to examine the possibility that this was not just a case which called for a generous Smith and Manchester award but one which might call for the loss of earnings and care to be compensated for on a lifetime basis. I do not think that this was simply an error of judgment, something on which opinions might differ. It was a failure to appreciate and take into account a real possibility, apparent on the papers, which called for further enquiry, and once enquired into, would have revealed itself as something which must be included in the advice to be given. So I find that Mr Fisher was in breach of his duty. He should have made such assessment as he could of what the claim might be worth if Mr Hickman was unable to work, and should have included that in his advice to him. In contrast, the advice he gave was on a best outcome scenario.
- Mr Fisher suggested in his evidence that he thought it appropriate to keep his advice to Mr Hickman simple, that he should not enlarge upon possibilities other than that which he had chosen as the basis for his advice. I fully accept that in this case in particular any unnecessary complication of the advice was to be avoided. But here I consider that it was necessary for Mr Fisher to say that there was a real possibility that the damages would fall to be assessed on the basis that Mr Hickman could not hold down a job, and what the claim might then be worth. I consider that advice that it might then have been worth something of the order of £500,000 would have been appropriate. This was not a case where counsel could simply advise that the value of the claim was of the order of £X. It was a case where counsel had to advise that the value of the claim depended upon the success of rehabilitation and whether Mr Hickman would then be able to hold down a job. Counsel had to advise on the likely range of value. The figure of £144,000 took an optimistic view of what Mr Hickman could achieve, and was a the low end of the range. It was only part of the picture.
- Mrs Howard was in a different position to Mr Fisher in two respects. She knew more about the reports and about Mr Hickman. On the other hand, she was very much the second in the legal team at court, and it was for Mr Fisher to take the initiative and to form his opinion and give his advice. She had never been in a similar position before. It is probable that she acted largely as an observer, helping when asked, but even if that is so, it was her duty to intervene if she saw something going wrong. If she saw Mr Fisher advising on one basis when, as she should have appreciated, he should have also been considering another, it was her duty to say so. In her evidence she came at least some way to accepting that Mr Hickman had not been advised as he should have been. She agreed that he was entitled to be told that his case was potentially worth £500,000, and that he was entitled to advice that his damages would be higher than Mr Fisher was proposing if his rehabilitation did not go well. She also said that she was alive to the possibility that rehabilitation might not work and there would be a very large claim. I should record that in answer to Mr McPherson (for Mr Fisher) she said that she had been optimistic as to rehabilitation, and that the figures did not seem low based on the optimism they had. That optimism should have been muted by the failure of rehabilitation at Headway and also with Dr Black, if progress it had been asked about.
- I consider that when Mrs Howard saw the way Mr Fisher was approaching the estimation of the value of the claim she should have raised the possibility that Mr Hickman might never get into employment, and the reasons which made that real two years after the accident. I find that she was in breach of her duty as a solicitor in failing to do so. I will say immediately that, this failure apart, the files show that throughout she conducted the case with a high standard of professionalism.
- I should refer to the comparatively favourable impression that Mr Hickman made on Mr Fisher and Mrs Howard on 27 November 1997. That of course was something that they were bound to take account of. Mr Fisher said in his oral evidence that he took the view that no judge would look at Mr Hickman and say he would never work again in his life. I am uncertain whether it is right to treat that as a genuine recollection, or as a reconstruction. It was, however, a matter of personal impression. The reports and Mr Hickman's actual progress were the more reliable indicators as to the future.
- I accept that in advising Mr Hickman to accept the offer Mr Fisher was entitled to take some account of the fact that, if Mr Hickman lost on clause 6, he would leave court with nothing, in particular nothing to pay for rehabilitation. But that was something as much for Mr Hickman and his parents to take into account as Mr Fisher. It did not affect Mr Fisher's duty to advise as I have stated.
- I have referred to the difficulty in which the offer placed Mr Fisher and Miss Howard, arising as it did unexpectedly when their minds were on the issue of liability. It was at one point suggested that an adjournment of the hearing of the issue should have been applied for. That was not pursued, and I do not think that it was a practical possibility. Early in the trial I raised the possibility of Mr Fisher and Mrs Howard trying to reach an agreement on the liability issue in terms of a percentage. That was not taken up and I need not consider it. I can see that the advantage of a money settlement to the MIB was that the action and its costs were over: the agreement of a split on liability would not have achieved that.
- It was suggested to Mrs Howard that she was keen to settle the case because of an uncertainty as to Mr Hickman's legal aid. I do not think that Mrs Howard saw any such difficulty. I am also quite satisfied that, if she had, it would not have affected her advice. It would have been better if the allegation had not been made.
Reliance
- I am satisfied that Mr Hickman relied strongly on Mr Fisher's advice in accepting the offer of £70,000. He went against his parents' advice and did not find the decision easy. The clear probability is that, if Mr Fisher had advised him that on the basis that he would not be able to hold down a job his damages might be of the order of £500,000, he would not have accepted the offer. On the basis of a 50 per cent chance on liability and 25 per cent contributory negligence that would have va lued the claim at £187,500. That is over two and a half times the offer of £70,000. If the damages are taken as £144,000, the value of the claim after those reductions is £54,000. On that basis £70,000 was, as Mr Fisher said, generous. Nonetheless, £70,000 was still in the lower part of the range.
Contribution as between the defendants
- Section 2(1) of the Civil Liability (Contribution) Act 1978 provides that the amount of contribution 'shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.'
- I have made my findings of fact, which are already set out, with this issue in mind. The main factors on Mr Fisher's side are his role as the barrister having the conduct of the case, and consequent on that, the leading role taken by him in the valuation of the claim and in the advice which was given, and his greater seniority and experience. Against that and apart from the clause 6 issue, there is Mrs Howard's greater knowledge of the case. Mr Picton submitted that Mr Fisher's responsibility should be assessed at more than two thirds. Mr McPherson submitted that responsibility should be divided equally. I consider that the right apportionment of responsibility in the circumstances is two thirds to Mr Fisher and one third to Mrs Howard.
The assessment of the loss
- There was broad agreement on the principle. I should assume that following success on the issue of liability an interim payment was obtained from the MIB which would have enabled rehabilitation to take place. How far it would have been successful was in issue. Then further reports would have been obtained. There would then have been an assessment of damages by the court. I should determine the figure which the court would have reached. That figure is then to be reduced by the percentage which reflects the chance that Mr Hickman might have lost the clause 6 issue, and by 25 per cent for contributory negligence in not wearing a seat belt. From that is to be deducted the £70,000 actually received, which gives the loss. Interest has to be taken into account. The possibility that the case would have settled thus avoiding a trial on quantum is to be covered by an assumption that the settlement would have been at the figure I find that the court would have awarded.
- The general principles applicable to assessment of damages in cases against solicitors have been considered in a number of cases. I refer in particular to the judgment of Simon Brown LJ in Mount v Barker Austin [1998] PNLR 493 at 510. In so far as it may now be more difficult for Mr Hickman to establish his loss, the difficulty should not count against him but rather against his advisers, because it is as a consequence of their negligence that he did not have his earlier trial. In paragraph 210 of his judgment in Browning v Brachers [2005] EWCA Civ 753 Parker LJ stated: 'The practical effect is to give the claimant a fair wind in establishing the value of what he has lost.'
- The first issue I have to determine is what were Mr Hickman's chances of success on the issue of liability, the clause 6 defence. I have no doubt that I should proceed on the basis that he had an even chance. That was the assessment of Mr Fisher at the time. I do not think that it was at all unge nerous. Given what Mr Hickman knew about Mr Brame, a judge would have had little difficulty in holding that Mr Hickman ought to have asked some questions before he went off with Mr Brame and that he 'ought to have known' that Mr Brame was uninsured, if the judge decided that that was the way he wanted to go. It was in my view very much an issue which could have gone either way.
- In September 2005 a schedule was served setting out the damages claimed by Mr Hickman based on a notional trial date of April 2000. The total was £1,138,435 before reductions. A counter-schedule was served on behalf of Mr Fisher which suggested a notional trial date of 1 January 1999. Closing submissions on behalf of Mr Fisher took a date of 27 September 1999. Mr Dyer suggested in his closing speech that this was too soon, but the difference was unimportant. I agree that a date which is under two years from 27 November 1997 is too soon to allow for rehabilitation, for a second round of reports and for the assessment to be listed. I prefer 1 January 2000.
- The most important issue as to the notional assessment of damages is what would have been achieved with Mr Hickman between 1997 and the hearing and what his prospects would then have been. This has been addressed by the obtaining of a number of further reports, which include further reports from Dr Lewis and Dr Tate. The authors had examined Mr Hickman in 2004 or 2005 but had been asked to consider what their views would have been earlier.
- I will take the new reports in turn. The underlining is mine throughout.
(a) Dr Lewis – neurologist - 18 January 2004 His conclusions include:
"Mr Hickman's condition improved substantially in the early months after the accident but much more slowly thereafter. When I first saw Mr Hickman, six months after his accident, I anticipated further improvement over the subsequent eighteen months or more. In fact, improvement subsequent to my first examination six months after the accident has been very limited; all of the major neurological problems identified in March 1996 have persisted with consequent severe disability. Had I reassessed Mr Hickman two to five years after the accident, my findings and conclusions would have been essentially the same as they now are.
Mr Hickman remains severely disabled by the neurological consequences of head injury sustained on 27th September 1995. His capacity for paid employment has been minimal since the accident and will be not greater in the future. Mr Hickman's cognitive and behavioural deficits necessitate care provision. Mr Hickman's family members have provided constant care since he came out of hospital after his accident."
(b) Dr Tate – psychiatrist – 30 March 2004 His report includes:
"I previously made the point (in my report of October 1996 relating to Mr Hickman's first interview with me in June 1996), that Mr Hickman would improve over a two-year period, but that it was unlikely that he would improve further after that. My view appears to have been sustained and is supported by the view of Mr Hickman and his mother as well as the opinion of Dr Paul Lewis. No further improvement has therefore been made since 1998. Mr Hickman was then, much as he is now. Clearly his employment capabilities have been and remain extremely limited. He has not received any vocational guidance/retraining.
….
It is my opinion that Mr Hickman continues to suffer symptoms of post-concussional syndrome. There has been little improvement since I saw him in June 1996. This is supported by his medical records, and the opinions of Dr Paul Lewis, Mr Hickman's mother, and himself. His level of functioning is currently the same as it was in 1998 and since."
(c) Ms Renee McCarter – neuropsychologist instructed on behalf of Mr Hickman – 28 February 2004 Her conclusions were:
"As instructed I have considered the evidence available and sought to ascertain what my opinion may have been had I had the opportunity to review Mr Hickman in 1998 or 1999. As noted, there must be a degree of speculation in this process.
It is my opinion that Mr Hickman was not showing signs of improvement between the years 1996 to 1999. He had developed chronic, perhaps intermittent, depression overlaying a lability of mood and poor impulse control that arose from his brain injury. He had developed chronic problems with his ear that may well have contributed to low mood. He had not, I am told by he and his mother, been able to sustain any employment for more that a brief period. They indicated that this was due to persistent cognitive, fatigue and motivation problems. He had not made a good psychological or practical adjustment to his neuropsychological disabilities and altered life opportunities. He had documented cognitive deficits, including memory problems, which potentially may have deteriorated in view of his depression and poor adjustment. The latter comment is speculative, based on the evidence that he was periodically depressed, the known deleterious effect of depression on memory and concentration and his slightly lower current test performances in comparison to 1996 scores.
It is possible that I would have discovered signs of anxiety and panic had I seen him in 1999, in view of the common comorbidity of these symptoms in people with depression and obsessive behaviours, the latter having been identified in 1997. However, I am not able to be confident of this. I note that the GP did not specifically identify these symptoms, nor did psychiatrists in the years prior to 1999. However, Mr Hickman describes them now and indicates that they are of long standing, despite no such report in the records.
Had I seen Mr Hickman in 1999, the lack of progress would have been a poor prognostic indicator for future employment and independence. Had the test scores been as they are now I would have thought that he was not likely to be employable on the open market nor likely to live independently. Had the test scores been comparable to those obtained by Dr Newcombe in 1996, where he was modestly better at learning I may have been slightly more optimistic about capacity to engage in some supervised or sheltered productive activity and to increase his independence from the family with rehabilitation. However, in view of his obsessionality, irritability and executive problems, I would have likely concluded that he would probably have low motivation to attend sheltered work and would have had only limited capacity to benefit from rehabilitation, so that semi independent living with ongoing case management and support workers would have been necessary.
My view of his current status is that he requires close support and is unlikely to be gainfully employed. He would benefit from psychiatric review and he might benefit from a cognitive behavioural approach to the treatment of his panic and anxiety. His capacity to engage in such therapy is, however, questionable."
(d) Professor Beaumont – neuropsychologist instructed on behalf of the defendants – 7 October 2004 Professor Beaumont concluded:
"Unfortunately, a test of effort has demonstrated that Mr Hickman was too poorly motivated to co-operate adequately in the current assessment and his present level of cognitive ability is therefore essentially unknown. However, in my opinion, Mr Hickman is capable of a higher level of function than the current data suggest and my estimate would be that his cognitive abilities are now mildly to moderately, but generally, impaired. There is evidence of some continuing impairment directly attributable to the brain injury which he sustained in the form of his episodic dyscontrol over his temper. Mr Hickman's cognitive status is being depressed by his ongoing severe level of depression, anxiety, and hopelessness which are, in my opinion, secondary consequences of the material accident. As a result of both the primary and secondary consequences of the accident Mr Hickman is significantly impaired in his personal, domestic, social and occupational functioning and is now in a chronic state in which these problems are likely to endure. However, with effective treatment, of the form which I ha ve recommended, some improvement can be anticipated and it is possible that Mr Hickman could gain a greater degree of independence, a more normal social life, and successfully return to some form of gainful employment. However, Mr Hickman's problems are now so chronic that a good outcome from treatment is far from certain, but a full prognosis will not be possible until it is known whether psychological treatment may now be effective, a better level of control can be achieved over Mr Hickman's temper, and the underlying degree of cognitive ability can be ascertained once the contribution of (treatable) current depression and anxiety have been addressed. I recommend, ideally, a period of residential rehabilitation for Mr Hickman, which may have a good outcome; without this or a similar intervention Mr Hickman is now likely to remain in a chronically disabled state."
In a letter of 29 October 2004 Professor Beaumont wrote that after seeing further medical records his view was reinforced that 'Mr Hickman's current presentation has a large psychological component (although itself a consequence of the material accident) and that if Mr Hickman's psychological health could be improved, then his cognitive and functional capacity would also show significant improvement.'
(e) Professor Trimble – behavioural neurologist instructed on behalf of the defendants – 21 March 2005 Professor Trimble concluded:
"The clinical history as it unravelled is not uncommon for this kind of event. Namely he had some time improving from a neurocognitive point of view, perhaps a year or two, but then the situation tends to have rather reached equilibrium. In other words he has been left with enduring neuropsychiatric complaints, the main features of which are an admixture of some neurological symptoms (headache, ear symptoms, some right – sided hemiparesis) and neuropsychiatric symptoms (such as memory and concentration difficulties, mood swings, irritability and aggressive episodes.)
He thought that there was no primary psychiatric disorder: it was common with a head injury for the social and psychiatric injury to become prominent while the neurological features diminished: Mr Hickman's main difficulties were neuropsychiatric in nature. Then an important observation:
"What is concerning at the present time is the cocoon in which this young man is living. He lives in a village, which I suspect has a quite tight social community, and many other members of his family live there. He is dependent upon his mother, he is essentially behaving as a 14 year old rather than as a 26 year old, and no particular efforts have been made to winkle him out of the shell in which he resides. He is not the brightest person, he has not had much formal training, and there are clearly difficulties in terms of his interpersonal relationships (with impulsivity and aggressivity etc) when he has tried to return to work."
He finished:
"The symptomatology is quite well known to me. Sadly, also is the response which he had made to it. By that I mean that he is still behaving as an immature teenager. Part of the problem is that he is "fed up" with doing neuro-cognitive tests and seeing doctors; clearly he did not perform adequately for Professor Beaumont. I do not think this means that he is malingering in the sense that we know it, in a medico-legal context, but I think it does mean that his cognitive abilities cannot be truly assessed at the present time, and the cognitive levels which are noted are, if you like, a minimum rather than a maximum. However, these cognitive results often by themselves would not mean that he should not in the future undertake some form of employment, although the level of which that would be is not likely to be more than rather menial. I do believe further therapeutic input of the type noted in my report would be of value. "
(f) Joint statement by Dr Tate and Professor Trimble – June 2005 This includes the following:
'It is agreed that the prognosis for Mr Hickman's psychiatric state without treatment would have been pessimistic. With appropriate treatment he should be able to gain independence and to create a life for himself, with accompanying improvements to his morale and mental state.
……….
It is agreed that with appropriate assessment and rehabilitation from a psychiatric point of view Mr Hickman will in the future be able to live independently and to obtain suitable full time employment.'
They agreed that their response in 1997 to 2000 would not have been different. This is much more optimistic than their individual reports suggest.
(g) Joint statement by Dr Tate and Professor Trimble – September 2005 This referred to over-protection by those looking after Mr Hickman. They said: 'This is really a secondary behavioural state, it is not a psychiatric disorder but a feature of a mildly damaged young man growing up in a cocoon of care, … .'. They suggested that he was currently capable of 'part-time menial work, preferentially with a vocational component'".
(h) Joint statement of Ms McCarter and Professor Beaumont – June 2005 This includes:
"We agree that the prognosis for Mr Hickman's neuropsychological/psychological state without future treatment or therapy is very poor and unlikely to change. With therapy there is some chance of improvement, although the chronicity of his problems, entrenched attitudes which stem from his poor insight and executive problems, and the family's response to these (which may be maintaining his depended state) makes us extremely cautious in suggesting the possibility of improvement.
….
If Mr Hickman does not undertake therapy as recommended above, then he is likely to remain as he is now, in a state of chronic maladjustment, with mood problems and interpersonal difficulties and lack of strategies to effect independence. If he does undertake, engage and comp lete therapy, which could take some two years in total, then there is a reasonable chance that he could live independently with some support, particularly in view of his rigidity and obsessive features, and might be able to work at least part time, possibly full time. This would ultimately depend on the outcome of his treatment and if his psychological state improve, and we are not certain that this will be good. It would be worth, on balance a try."
As I read the joint statement their view of Mr Hickman and his prospects would have been much the same in 1998 or 1999, but his present maladjustment would then have been less entrenched.
- I should add that my own impression from the evidence I heard, in particular that of Mrs Hickman, is that Mr Hickman now achieves so little and lives such a limited life because he is cared for by his family at every turn and, if he is faced with anything he dislikes, he shows his dislike of it and usually gets his way. There is nothing to suggest that this was how he behaved before the accident, and it is in keeping with the reports that I should treat his present mental state as a consequence of the accident: I refer as an example to the passage from Professor Beaumont's letter of 29 October 2004 quoted above.
- If Mr Hickman had succeeded on the clause 6 issue on 27 November 1997 the next step would have been a programme of rehabilitation funded by an interim payment from the MIB. There would then have been two uncertainties involved. First, how far would Mr Hickman have seen it through? It will be remembered that he had stopped going to Headway, and had stopped seeing Dr Black. He did not use any of the £70,000 to rehabilitate himself. It would have been far from certain that Mr Hickman could have fully engaged in rehabilitation and could have benefited as fully as he might. Second, even with his full cooperation, how successful would it have been? The reports and joint statements help me on the second question, but not on the first, though there is recognition of the problem. The answers are required to enable me to form a view of how Mr Hickman would have presented at the hypothetical assessment of his damages early in 2000.
- If a programme of rehabilitation had commenced early in 1998, and a case manager had been appointed as advised by Ms Turnbull using money provided by the MIB, Mr Hickman would have found himself in a rather more disciplined environment than in 1996 and 1997. He should have been more focussed and his family would have had much needed guidance. It has always been the position that both he and they want him to improve. So I think that the chances of him trying fully to cooperate with what others were trying to achieve, would have been good. How far he would have succeeded is less certain, and is a reason for the uncertainty of the outcome in itself.
- What prognosis do I get from the reports? The report of Dr Lewis dated 18 January 2004 stated "Mr Hickman remains severely disabled by the neurological consequences ….. His capacity for paid employment has been minimal since the accident and will not be greater in the future." That is the view of the neurologist. The psychiatrists, Dr Tate and Professor Trimble considered that from the psychiatric point of view with appropriate treatment Mr Hickman would be able to live independently and to work full- time although their individual reports are substantially less optimistic. The neuropsychologists, Ms McCarter and Professor Beaumont, were "extremely cautious in suggesting the possibility of improvement" but nonetheless considered that there was a reasonable chance that with therapy Mr Hickman could live independently with some support, and might be able to work at least part time, possibly full time: 'it would be worth, on balance, a try.' As I have suggested, the chances may have been better in 1998/9 than now.
- It was said in Mr McPherson's written closing submission that "It is common ground between the experts that even now the Claimant should be able to work." I do not accept that. The position is more complicated and less optimistic.
- There is a further factor which I should take into account. Mr Hickman has tried to work on a number of occasions. From the evidence I heard he has failed because of fatigue, inability to stand the cold, inability to concentrate and so on, as well on occasion from lack of will power and his depression. As I understand it, the former factors are not factors which rehabilitation would remove, though it might improve his ability to deal with them. If, as would seem likely, he had hypothetically tried a job prior to the hypothetical assessment of damages, the indications from it could well have been adverse.
- I have to weigh these different views and indications. I find that he would have received some benefit from the work that would have been done with him, that he would have made some progress, but limited progress. I conclude that a court assessing Mr Hickman's damages in early 2000 would not have concluded that he would be capable of full time employment. I think that the likelihood would be that it would conclude that he was capable of some part time employment but that this would be very much on an on-and-off basis, both because of his difficulties and because of the difficulty of finding part time work. I fully realise that this is looking deep into an obscure crystal ball, but that is the task I have to perform. Mr Hickman is entitled to 'a fair wind' when I do it: Browning. I think that the court would have taken into account the sums he might earn on menial jobs on the basis of one eighth time overall of full time. I think that the court would have found that he was capable of living largely independently but in need of some further care.
- Having decided that point of principle I can turn to the heads of claim in the claimant's schedule. In paragraph 68 of Mr McPherson's written closing submissions it was suggested: "Should quantum need to be assessed, it may be that the appropriate way would be for the Judge to 'write the script' dealing with all issues of principle and for the parties then to calculate the figures." I will deal with the figures where I can, but having heard counsel on them to a limited extent only and without counsel knowing my decisions of principle, it is inevitable that some points will have to be left for agreement or further argument. My findings as to the various heads of claim are set out in the Appendix to the judgment.
- I have not had to rely upon the reports of Mrs Sheard and Mrs Gough in relation to damages. I should nonetheless record that having heard them (alone among the experts) I found Mrs Gough much the more reliable witness as to what might reasonably be required for Mr Hickman. If I had needed to, I would have put Mrs Sheard's report on one side and relied solely on that of Mrs. Gough.
- At the conclusion of his report dated 18 January 2004 Dr Lewis said that it would be appropriate for any large financial settlement to be administered on his behalf. I would like to hear submissions as to that.
Conclusion
- The claim succeeds against both defe ndants. Liability is apportioned between them as to one third to the first defendant and two thirds to the second defendant. I have determined such points on the assessment of damages as I am able to. If the outstanding matters cannot be agreed, it will be necessary for me to hear further argument.
APPENDIX
I. Past losses
(a) Past earnings
Having done badly at school through lack of application and too great a concentration on boxing Mr Hickman went to a college to improve his GCSE results with the object of joining the RAF. This showed a mature attitude and a realisation that he must be more disciplined and responsible. I think that it counterbalances the adverse reports he obtains at school, and they can largely be put aside. I think it likely that he would have been accepted for the armed forces. His considerable skill at boxing would have assisted. The schedule proceeds on the basis that he would have joined the army. I will adopt that. He would have joined the army in the autumn of 1997. The schedule assumes that he would have stayed in for 7½ years, which is reasonable. I am prepared to assume promotion to lance corporal after four years but I do not think it justified to go further. I accept that during his holidays from college and perhaps some weekends he would have worked in the construction industry with his father. If he worked for 3 months in a year, 8 hours a day at £4.50 gives £2,160. I am not satisfied that Mr Hickman failed to mitigate his loss by not doing more work than he in fact did after his accident. He earned £3,500, for which credit must be given.
(b) Father's loss of earnings Earnings over 6 weeks were claimed when Mr Hickman senior was off work because he wished to care for his son. A claim is also made in respect of Mrs Hickman's time. The court is likely to have allowed 3 weeks in respect of the father.
(c) The mother's loss of earnings The claim is for £4,021 covering September 1995 to March 1996. At the time of the accident Mrs Hickman was temporarily out of work but had an interview coming for a job. A discount would have been allowed to reflect the chance that it might have taken her a period to get a job. I accept the second defendant's figure of £3,000 for the claim.
(d) Gratuitous care and services This is put at £10,000 but no calculation is provided. The second defendant suggests 2,000 hours at £3.50, i.e. £7,000, less a deduction to take account of the mother's loss of earnings claim which would otherwise be duplicated. £5,000 would be appropriate.
(e) Travel expenses £500 is agreed.
(f) Case management, occupational therapy, and support worker. These all must all relate to the years 1998 and 1999. So I have to look at what the proposals were then likely to be. I must start with Ms Turnbull, who recommended a case manager. I think it unlikely that a support worker would have been involved. Occupational therapy of some kind would have been advisable. Ms Turnbull's figure for a case manager was £3,800 for three months, with the visits reducing from weekly to fortnightly. That would give about £22,000 over 2 years. The figure claimed in respect of case management is £10,746 but a support worker is claimed at £17,630. I will take £22,000. That is a compromise figure covering case management and occupational thearapy.
(g) Miscellaneous
£300 is agreed
(h) Interest
Agreed at half special investment account rate
II Future losses and expenses
(i) Loss of future earnings
These will be assessed on the basis that but for the accident Mr Hickman would have completed his time in the army and would then ha ve taken up a trade as suggested in paragraph 8 of the claimant's schedule. I accept the multiplicands of £10,000 and £15,000 taken there. A retirement age of 62 should be taken to reflect the risk that he could not continue in his trade until 65. Credit against those earnings would be given on the basis that Mr Hickman would obtain menial part time work for approximately one eighth of his working life. Effect should be given to that by crediting one eighth of the appropriate full time wage. There is a dispute as to whether the discount rate should be 2 or 3 per cent. I was not addressed on that.
(j) Case manager
It is likely that the court would have thought that some continuing assistance from a case manager would be required for a period. I put it at 5 hours per month (time with Mr Hickman and 'preparation' time) for 4 years.
(k) Occupational therapy
It is likely that the court would consider that occupational therapy had done what it could by 2000.
(l) Support worker
I do not consider that the court would have seen a role for a support worker. I do, however, think that the court would have decided that Mr Hickman would need some additional care. In the first years at least this could be provided by the family. The rate would reflect the rate recoverable in respect of gratuitous care by a family member, and about 6 hours per week seems to me right. Even though it might not always be provided by a family member, it would be continued on the same basis.
(m) Household maintenance, DIY, gardening Mr Hickman should not need this assistance.
III General damages
I assess these at January 2000 at £45,000, taking account of the appropriate JSB Guidelines. It is agreed that interest of 2% from 2 June 1997 to 1 January 2000 should be added.
IV Interest
I accept tha t the rates of interest to be awarded on the notional judgment sum awarded in January 2000 to date should reflect those which the claimant could have achieved by prudent investment, as submitted in the second defendant's closing observations on quantum. I do not know if the rates there set out are agreed.
