NOTE: JILL CLARK AGAINST GREATER GLASGOW HEALTH BOARD
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 126
A605/05
NOTE BY LORD STEWART
In the cause
JILL CLARK
Pursuer
against
GREATER GLASGOW HEALTH BOARD
Defender
Pursuer: Anderson QC, Arabella Tait advocate; Drummond Miller LLP
Defenders: MacNeill QC, Stuart advocate; NHS Scotland Central Legal Office
1 September 2016
[1] This is a claim by Jill Clark for a catastrophic birth brain injury sustained by her on 2 March 1992. The claim is directed against Greater Glasgow Health Board in respect of alleged negligence by midwifery and medical staff employed by the board on 1 and 2 March 1992. Having heard proof and submissions over 21 days in January and February 2015 I made avizandum. While I was reflecting on the evidence and submissions the pursuer applied to add a new case by amendment. The application to amend was heard on 26 May 2015. I refused the motion to amend on 18 December 2015. On 12 February 2016 I pronounced decree of absolvitor in the substantive proceedings. At the same time I undertook to produce a note on the damages which I should have awarded had the pursuer been successful. This is what I now do. Parties put their cases on quantum of damages in written submissions which were adopted at the bar with very little elaboration.
[2] The pursuer quantifies damages at £9,766,551.89 inclusive of interest on past loss and expense. The defenders quantify damages at £6,864,371.98 inclusive of interest. Accommodation costs are separately agreed by parties as an additional item in the sum of £450,000. Parties are to be complimented on agreeing most items of damages. Parties together submit that the small number of outstanding issues should be decided and that there should then be a further hearing to decide the final outstanding issue, namely the application of interest to damages for past loss and expense. The defenders contend that only about half the amount of interest claimed by the pursuer should be allowed.
[3] The outstanding issues are (1) whether provision for a personal injuries trust should be made; (2) whether an agency model or a direct-employment model should be used for costing future care and what allowance should be made for the cost of care; (3) as to the amount to be allowed for case management; (4) as to the amount to be allowed for occupational therapy; (5) whether future transport costs should make allowance for the possibility that the pursuer would have had a car anyway; (6) whether certain items of personal care equipment should be allowed; (7) what allowance if any should be made for postural support items; (8) what allowance if any should be made for additional domestic assistance; (9) what allowance if any should be made for disability sports; and (10), as previously indicated, whether interest in full should be allowed on past losses.
[4] The pursuer’s submission cites case law on the proper approach to quantifying care and support costs in serious and catastrophic injury cases [Fletcher v Lunan 2006 Rep LR 72 at § 9; Sklair v Haycock [2009] EWHC 3328 at § 80; Sowden v Lodge; Crookdake v Drury [2005] 1 WLR 2129 at § 38 per Pill LJ]. The principle derived by the pursuer is that if a claimant proposes a particular care regime it is for the wrong-doer to pay for that regime in damages unless the proposed regime is unreasonable: it is not for the court to decide what is “in the best interests” of the claimant or to stipulate for the minimum acceptable level of care. The principle is correctly stated but does not greatly help in the present case. The cited decisions have to be understood in context.
[5] The issue in Fletcher was whether the claimant’s preference for being cared for at home should be rejected in favour of less expensive care in a publicly-funded, residential institution. This was at the stage of interim damages in terms of RCS 43.11. In making an interim award which included the cost of home care Lord Carloway said [§ 10]:
“There is no material at present upon which it could be concluded that attempting to achieve home care is an unreasonable course for the pursuer to adopt. It may ultimately fail, but there can be little criticism of the pursuer for trying to achieve such a regime in the near future (if funds are in place). There also is a great deal to be said for attempting this in advance of any proof date, so that the court can be in a better position to assess its ultimate reasonableness and practicability at that time.”
In Sklair there were a number of issues. The issue decided at paragraph 80 was about the suitability of the proposed damages-funded care package in private accommodation compared with the care package possibly, but not certainly, available in publicly-funded supported accommodation or residential placement—see for example paragraphs 55 and 59. The Sowden and Crookdake cases were about the correctness on the facts of those cases of restricting accommodation and care awards to the cost of “topping up” publicly-funded provision.
[6] The submissions also refer to two other cases on the question of the appropriate model of damages-funded care, Milligan’s Guardian v Lynch 2009 SLT 1159 and Crofts v Murton [2009] EWHC 3538. The issue in Crofts was whether the claimant’s wife could be required to continue to bear the “impossible burden” of providing most of the claimant’s care needs. Unsurprisingly that answer was that “a tortfeasor cannot avoid payment for commercial care in reliance upon the fact that a family member has in the past demonstrated by their devotion their ability to care for a Claimant”. In Milligan’s Guardian, which is nearer to the present case, the court had to decide between agency care and direct-employment care. On the evidence given Lord Woolman was persuaded that “the best arrangement for the claimant was agency care and that the equivalent standard of care could not be attained with direct employment of carers”. The conclusion seems, if I may say so, entirely reasonable on the narration given in his lordship’s opinion. An award of interim damages had been used to put an agency care package in place before the proof. The care package was working well. One medical witness offered the view that the cost of the agency care in that case and the cost of direct-employment care were comparable once the extra costs associated with direct employment were taken into account. This evidence was said to be “valuable”. There was no proposal for a personal injuries trust and the claimant’s sister was reluctant to act as employer. (I note that reference was made to Phoenix which I take to be Phoenix Therapy and Care Limited referred to in Mrs King’s CV.)
Personal injuries trust
[7] My decision is that provision should be made for the cost of putting any damages awarded to the pursuer into trust for the benefit of the pursuer during her lifetime. Because of the neurological injuries which have devastated the pursuer’s motor functions, the pursuer is completely dependent on others. While the pursuer’s intellect has been spared she cannot communicate at all with non-family members except by using assistive technology, a painstaking business for her. The pursuer would be unable to administer her damages personally and would be vulnerable to exploitation. She offers evidence on affidavit, bearing to be executed by a solicitor on her behalf before a notary, to the effect that she does not have the experience to manage a huge sum of money. It is her intention to have any damages awarded placed in trust. This could protect her eligibility for certain state benefits and could offer tax advantages. The care model favoured by the defenders’ care-cost expert (see below) envisages trustees as the employers of the pursuer’s support workers. Parties agree that the cost of setting up a trust would be £3,000 plus VAT; and that the annual cost of trust administration and accounting including making tax returns would be £23,750 plus VAT. This is irrespective of the care model.
Future care, support and case management
[8] The pursuer’s condition is described as athetoid cerebral palsy. She needs care all day, seven days a week. The pursuer is now (at the date of the proof) aged 23. Her life expectancy for the purpose of computing damages is agreed to be a further 37 years, to age 60. The agreed 37‑year multiplier for computing future losses is 23.45. The pursuer’s parents Mr Clark and Mrs Clark are aged 52 and 49 respectively (at the date of the proof).
[9] It is convenient to discuss future care or support and case management together. The pursuer claims £5,682,755 for the cost of future care. This is based on an ongoing annual cost of £242,335 after a transitional period. The defenders propose £3,761,996 based on an ongoing annual cost of £161,084 after a transitional period. The annual difference is roughly £80,000 and the lifetime difference is roughly £2 million. The quoted figures do not include future case management services which are separately computed. The pursuer claims £256,057.50 for future case management and the defenders propose a figure of £229,617.20, so not too far apart, the difference being substantially down to different contingency provisions. Expert evidence to support the care and case-management costings is tendered by Mrs Susan King for the pursuer and Ms Sally Gooch for the defenders.
[10] Mrs King (57), the pursuer’s expert, is an occupational therapist by training with 30 years’ experience in the NHS and the private sector. Her last full-time NHS appointment was in 2004—2012 as senior community paediatric occupational therapist for Grampian Health Board, Moray district. She has seventeen years’ experience of providing rehabilitation reports. She has six years’ experience as a case manager taking “a lead role in the recruitment and support of rehabilitation and care teams as well as carrying out complex risk assessments”. The case management business was sold in 2011. She has prepared 80 care-cost reports. Since moving to Scotland in 2004 she has prepared reports exclusively for claimants. She has prepared three reports on the pursuer’s care needs, the first one being in 2007. She has visited the pursuer’s home on three occasions and interviewed the pursuer and her parents there. Mrs King spoke to her CV and report, nos. 6/74 (also 6/62, appendix), and 6/62.
[11] Ms Gooch (54), the defenders’ expert, is a nurse and health visitor by training with 32 years’ experience. Since 1994 she has been involved in management, consultancy and governance up to the highest levels of the profession while continuing to see patients. She was a consultant to the prime minister’s delivery unit (2008) in relation to hospital-acquired infections and a consultant to the mid-Staffs NHS Foundation Trust (2010—2011) following the report of 2008. She has substantial case management and care-needs reporting experience (over an undefined period). Her case management experience has been largely within the NHS context as a continuing care assessor, commissioning and overseeing care packages in hundreds of cases, for the most disabled patients entitled to public, NHS and/or social services, funding for home care. She has personal experience of case-managing four privately-funded continuing home care cases, three of which are for young persons with cerebral palsy. Her medico-legal practice involves giving expert evidence in relation to liability and quantum for both claimants and defenders or defendants and sometimes on a joint report basis. She has interviewed Mrs Clark and the pursuer at home on one occasion. She spoke to her CV and report, nos. 7/49 and 7/6.
[12] Both long-term care packages are costed on the basis that the Clark family will move to a new purpose-built or purpose-adapted home. Both experts recommend carers attending, two at a time, for 14 “day-time” hours and one sleeping overnight carer attending for ten hours. Both packages envisage a team of carers, seven to nine in all. This is agreed to be necessary to provide continuous cover with at least twelve hours between shifts and to allow for days off and holidays. “Care” means personal care, domestic assistance and community support. Personal care tasks include: toileting; washing, showering and drying; washing, drying and brushing hair; brushing teeth; feeding, including PEG tube feeding and maintaining the gastronomy site; administering medication; dressing and undressing; lifting and hoisting; positioning and adjusting posture when sitting; turning in bed. Both experts envisage that the pursuer’s carers will perform non-personal domestic tasks like cooking, cleaning and laundry such as would be performed by an able-bodied householder. The carers will also give support for training, employment and leisure activities in the community. Both experts envisage that, whichever model is used, looking after the pursuer will be the only or main job for the carers.
[13] The most important reason for the divergence in costs is that Mrs King’s figure, as presented for the pursuer, is based on the agency model of care provision whereas the defenders’ figure, drawn from Ms Gooch’s report, is based on the direct-employment model. The choice of model impacts dramatically on hourly rates. The pursuer’s model recommended by Mrs King uses the hourly rates which would be charged out by the employing care provider to include all employment costs and on-costs as well as the corporate profit element: £16.50 an hour for normal weekdays, £20.00 an hour for weekend working, £33.00 an hour for holiday working, £15.00 an hour for normal over-nights, £18.00 an hour for weekend over-nights and £30.00 an hour for holiday over-nights. Mrs King bases her costings on the charges of HI Healthcare, which she describes as “a respected organisation” providing care nationwide including in the Glasgow area. Mrs King prefers to use the term “care-provider” rather than “agency”, emphasising that the agency care provider would be expected to provide a dedicated team selected or recruited for the pursuer and would not be expected simply to send out whoever happens to be available on the day.
[14] The defenders’ direct-employment model is costed on the basis of a flat rate of £10.00 an hour, stated to be inclusive of an enhancement for weekend and holiday working. An uplift of £1.00 an hour is allowed for one carer as team leader bringing his or her rate to £11.00 an hour. According to Ms Gooch the local mean market rate is £7.78 an hour. The local market rate is well-evidenced by a number of job advertisement screen shots from the Department of Work and Pensions Universal Jobmatch website. This is for services including personal care. By way of comparison, both expert reports offer evidence of home‑help rates published by the United Kingdom National Joint Council for Local Authorities [NJCLA]. The point 8 rate is below £7.00 an hour for weekdays. This is the rate—prior to the introduction of the national living wage—for services which do not involve personal care. Ms Gooch provides additional context by stating that the basic rate for a newly qualified state registered nurse is £11.44 an hour.
[15] Mrs King contends that you cannot recruit the right kind of staff for the rates proposed by Ms Gooch. She maintains that H1 Healthcare workers are paid £10.00 for sociable hours (and by implication enhanced rates for overnights, weekends and public holidays). She also states that team-leader rates would normally be enhanced by £2.00 an hour. Ms Gooch on the other hand states that agencies pay their home care or support workers the sort of rates that she discusses and that H1 Healthcare recruits through the Universal Jobmatch site at those rates. Although some of the adverts exhibited by Ms Gooch may be placed by recruitment agencies for individual customers, or by individual customers and their families, a number look as if they are placed for general recruitment by recruitment agencies and care providers, namely Careworx, Care To Assist Ltd, Renfrewshire Care Services Ltd and Altogether Care Services. A number refer explicitly to “personal care”, including assisting with medication, as well as to “household” or “domestic services”. Weekend rates, where specified, are less than £10.00. One of the adverts is for “health care assistants” to be members of a team of day and night staff “to work with a young person with complex care needs” working “weekends and nights on a rotated basis”. It is stated: “We offer competitive rates of pay”. The rates are £7.49--£9.49 an hour, the higher rates presumably for non-sociable hours, weekend and holiday working.
[16] Comparative information as to agency charge-out rates is available in Ms Gooch’s report. Ms Gooch reports that the pursuer has been in receipt of publicly-funded day-time care since 2010. From 2010 to 2013 care was charged to the funder or on the funder’s books at £14.28 an hour. Since June 2014 the care has been provided by Key Housing and paid for by Glasgow City Council Social Work Department. The care is charged at, by my calculation, £19.83 an hour on average. I have taken the liberty of looking at the Key Housing website foot-noted by Ms Gooch. Key Housing is currently advertising for support workers to “join a team providing individualised support to adults with learning and other disabilities”. The support includes personal care. The rate offered for contracted workers is £8.20 - £8.70 an hour. “Shifts will include work in the evenings, weekends, and sleepovers for which an additional payment is made”. A team leader post in Falkirk offers about £22,000 a year for 39 hours a week. This works out at £10.85 an hour. The job includes both providing care and supervising a number of care teams locally. The job involves evening work, weekend work, sleepovers and “out of hours management support responsibilities”. The team-leader rate is something more than £2.00 an hour above the support-worker rates quoted above.
[17] It should be said that there is no complaint about the quality of funded care provided to the pursuer since 2010. In particular, there is no complaint that the Key Housing carers attending since 2014 provide below-standard care. The rates paid to workers by H1 Healthcare are I imagine easily verifiable, should anyone care to check. On balance I accept Ms Gooch’s evidence about the availability of suitable care workers and their pay rates although this is not by itself determinative of the overall issue between the parties about the appropriate care model.
[18] There is a particular issue relating to payment for night-time care. Ms Gooch reports:
“Miss Clark goes to bed at about 22.00 hours. She does not sleep all night. Her mother told me “she’s not bad but sometimes she needs to be turned and most nights it’s twice but some nights it can be more than that”. Miss Clark can roll herself but she gets stuck”.
In her oral evidence Mrs Clark states that she, Mrs Clark, has to turn Jill twice a night on average; and that “Jill needs the toilet during the night more and more”. The “day-in-the-life-of” video has a sequence which shows the pursuer waking, wanting to be turned and being turned at 04.15. Ms Gooch proposes that when “sleeping night-carers” come to be engaged, they should be paid £60.00 a night, that is paying six hours for a ten hour shift.
[19] Although Mrs King costs family over-night care on the basis of six hours a night she asserts that it is unlawful to pay an employed “sleeping night-carer” Ms Gooch’s £10.00 an hour six‑hour equivalent, £60.00, for a ten hour shift as proposed by Ms Gooch: this would be contrary to the national minimum wage legislation, she says. The pursuer’s written submissions refer to case law on the point: Whittlestone v BJP Home Support Ltd [2014] ICR 275, EAT; Esparon (t/a Middle West Residential Care Home) v Slavikovska [2014] ICR 1037, EAT.
[20] The matter was not elaborated. On this material, such as it is, my view is that the time spent otherwise than “awake for the purpose of working” by the pursuer’s hypothetical domestic sleep-over support worker is not “time work” within the meaning of regulation 15 of the National Minimum Wage Regulations 1999 as amended. This is on the basis that the worker’s presence on the premises is not required for any purpose other than answering the pursuer’s calls two or three times a night for 20 to 25 minutes each time and that, in particular, the worker’s presence is not for the purpose of fulfilling the employers’ statutory duties. I accept what Ms Gooch says, namely that paying six hours for a ten hour shift is standard, noting that a similar arrangement was proposed and approved in Sklair (above, at § 82), although this does not entirely resolve the issue of how much should be paid. If I am wrong about the non-application of the legislation, the difference is between ten hours x £6.50, which is the national minimum hourly rate cited by the pursuer, producing £65.00 a night, and £60.00 a night proposed by the defenders, that is a difference of £5.00 a night. On that basis the safe course would be to allow for £65.00 a night if the direct-employment model is to be applied. Since then, of course, things have moved on. The national living wage for workers of 25 years upwards outside London is now £7.20 an hour. On this basis £72.00 a night might be allowed: but I do not propose to go that far without counsel’s views on the matter. For completeness Ms Gooch also allows an extra 112 hours a year, paid at £10 an hour, for waking night care during periods of sickness.
[21] The agency or care-provider model proposed by Mrs King has the claimed advantage of “removing the onus of employment responsibility from the client and their family”. The precise model envisaged by Mrs King would involve the care provider putting together a team of carers specifically assigned to the pursuer. This would ensure continuity and allow the pursuer to get to know her carers. All oncosts, that is, recruitment, vetting, protective clothing, training, health and safety, risk assessment, pay-roll administration, sick pay, pension contributions, employers’ national insurance, liability insurance would be met by the care-provider. (There is an inconsistency in Mrs King’s report which costs employers’ liability insurance as an additional item at £135 a year, the same as Ms Gooch’s figure as it happens: 6/62, 21.) Mrs King does not include the cost of negotiating the care contract or care contracts with the agency or successive agencies, for which see below. (Both experts cost motor insurance for carers separately under the heading of transport.) Mrs King’s view is that the alternative, direct-employment model would place a burden on the family which, she says, would be stressful, given the many responsibilities of employers, particularly for individuals with no experience as employers. She questions how Mrs Clark would deal with the situation if one of the carers were to call in sick or simply fails to turn up. Mrs King maintains that staff would rather work for an agency because it gives them security; and security gives some assurance of continuity. She also states that she normally costs for recruitment on the basis of staff turnover of 20 to 30 per cent a year in the direct-employment situation.
[22] The direct-employment model recommended by Ms Gooch has the advantage, Mrs Gooch claims, of allowing greater choice, control and flexibility. This flexibility would not be available with workers controlled by and reporting to an outside employer; and difficulties about boundaries can arise between the family and the agency employer. In Ms Gooch’s model the case manager would recruit the staff in consultation with the pursuer and her family. Ms Gooch envisages the creation of a personal injuries trust; and that the trust, not the family, would be the employer. She envisages supervisory and management functions split between the team leader, the case manager and the trustees. As to oncosts, she costs separately for “carers’ incidental expenses” (which may include food and clothing), recruitment, vetting and training, payroll administration, national insurance, employers’ liability insurance. Payroll administration can be outsourced for £113.99 per employee annually. The additional employer costs for all employees on this model are £14,336.78 a year, not including the case management and trustee components. After the set-up period, no allowance is made for reimbursement of parental care or support.
[23] Both Mrs King and Ms Gooch envisage a self-employed case manager and both cost case management services at £95.00 an hour. After an initial set-up and transitional period and after the move to new accommodation, both allow for ongoing case management of six hours a month or 72 hours a year. The ongoing cost is £6,840.00 a year excluding the case manager’s travelling time and mileage. Mrs King has a contingency provision of £64,980.00 representing 114 extra hours annually on each of six notional occasions, ie a total of 684 extra hours, during the pursuer’s lifetime. Ms Gooch has a contingency provision of £14,250 representing 30 hours on each of five notional occasions, ie a total of 150 extra hours. Accordingly the difference between the case-management costings lies in the number of contingency hours (and associated provision for travelling). A further qualification made by Mrs King is that if a direct-employment care model were to be put in place she would allow much more for annual case management. Mrs King refers to a case managed by her which had a direct-employment package already in place when Mrs King took over the case management: case management was provided for 126 hours a year, approaching double what Ms Gooch’s report allows for.
[24] Ms Gooch states that the agency model is appropriate in three circumstances: first, where a patient is recovering from major surgery and needs a lot of help over a comparatively short recovery period of, say, three to six months; secondly, where the care package is minimal, for example to meet a requirement for help to get up in the morning and to go to bed at night, it being difficult to recruit directly-employed carers for such short hours; and where you do not want to have a case manager, for example where the client is capable of managing his or her own affairs and is not vulnerable, particularly where the care requirement is short term or long term but the package is minimal. According to Ms Gooch it is “most unusual in a case like [the pursuer’s] to be recommending the involvement of an agency as an additional party”. Ms Gooch sees the case manager as fulfilling the role of care coordinator. The support workers’ tasks, the procedures they are working to, the way the rota works all need to be bespoke for the pursuer. Ms Gooch would halve the case managers’ hours if the agency model were adopted. As to the circumstances in which an agency model is appropriate, I note that Mrs King’s experience has in fact involved rehabilitation packages; and that her report brings various therapy inputs under the heading “Rehabilitation” although the prospects of rehabilitation in the sense of actual recovery is, on the evidence, nil.
[25] John Biggar (64), solicitor, of Messrs Anderson Strathern LLP, gave evidence about a personal injuries trust for the pursuer in the event that there should be an award of damages. The evidence was subject to an initial objection of “no record”: I allowed the pursuer to amend to put in a claim for the costs of a trust and thereafter Mr Biggar’s evidence proceeded without objection. He spoke to his reports [6/28 and 6/66]. Mr Biggar has a lifetime’s professional experience of trust work. He has substantial experience, built up in the last ten years or so, of setting up and administering personal injuries trusts and of preparing expert reports about these trusts. He has experience of both the agency and direct-employment models of care. He would generally, he says, “not incline towards the direct-employment model”. The reasons given by Mr Biggar are correctly rehearsed in the pursuer’s written submissions.
[26] However, Mr Biggar’s evidence is more nuanced than the submissions allow. Mr Biggar mentions three models of care provision, namely agency, direct-employment and hybrid. He does not say that he would not be inclined to advise the hybrid model. In passing he mentions challenges posed in other cases by the agency model: in one case the cost of negotiating the agency contract over three years came to, as I noted it, “something like £50,000”: this seems an extraordinarily high figure and I wondered whether I had misheard but it is confirmed in writing in Mr Biggar’s second report. In another case the injured party “has fallen out with one or two of the carers” and there may be a need either to replace the individual carers or for a change of provider (which would presumably involve more contract negotiations for replacement provision). The question of the legal costs of getting out of care contracts and whether penalties might be involved was not explored. Mr Biggar assumes that the direct-employment model requires substantial input from the family if they have the skills and so long as they are able. Without an agency provider he envisages that the trust—meaning in his experience, I gather, his law firm—would assume more and more of the management functions. He instanced a direct-employment situation where fraud by a support worker had to be investigated with the assistance of a graphologist before disciplinary proceedings could be brought leading to eventual dismissal. The cost to the trust was £15,000--£20,000. (I struggle to understand why the suspected worker could not have been dismissed without the process described: but detail was lacking and the matter was not explored further.)
[27] Mrs Clark agrees with the recommendations of the housing needs report. The report recommends provision for carers’ accommodation. Mrs Clark states that if the family were to acquire fit-for-purpose accommodation they would get “professional” carers immediately, assuming available finance. Jill would have day-time care immediately. There would be a hand-over period so that the carers could get to know Jill and understand her needs. Mrs Clark would assist during the hand-over period. Eventually, Mrs Clark says, Jill will need 24‑hour care. That would be “the right way to go for all of us”. Mrs Clark dreads the thought of what would happen to Jill if something were to happen to her, Mrs Clark. Ms Gooch costs for night-time family care during a one-year transitional period remunerated at the NJCLA point 8 home care rate, £6.90 an hour, total £2,415. Mrs King costs family care for a one-year transitional period. This is for some day-time care (during periods when publicly funded care is not available) and all night-time care, with uplifts for night-time, weekend and holiday work, in the range £6.88--£13.76 an hour, total £53,311.12. The respective totals can of course be pro-rated for periods of less or more than a year.
[28] Beyond the foregoing there are gaps in the evidence. The pursuer offers affidavit evidence which is directed only to the question whether there should be a personal injuries trust. She expresses no view about the type of care model that would suit her. Neither Mr Clark nor Mrs Clark—both of whom gave evidence—mention a preference for one type of care package over others for their daughter. Neither gives explicit evidence as to whether they would wish to continue providing care or whether they would wish to be involved in managing their daughter’s care. Evidence from actual providers and actual recipients of damages-funded care could have been very helpful. It would be useful to know, for example, if and how care packages previously costed by Mrs King and Ms Gooch had been implemented: but there is nothing like that.
[29] The direct-employment model as costed by Ms Gooch is not entirely appropriate in my view. I infer that Ms Gooch has in view a model which works well within a framework of public provision where a family member is, in a sense, in charge on the spot and the family can have instant recourse to a professional manager employed by a health authority or local authority to sort problems as or when they arise. Without that framework I take the view that it is reasonable to make substantially greater provision for case management and to make provision for remunerated family input. I take the view that the virtues of direct employment would be unachievable without family involvement. The “flexibility” valued by Ms Gooch makes sense in this case only if family members are available as on-the-spot intermediaries. In addition, given Mrs Clark’s views expressed in evidence and as reported, I am unable to infer that the family will cease to play a part as, at the very least, intermediaries for the pursuer. Ms Gooch makes no provision for family involvement which, in my view, is unrealistic. There is no allowance in Ms Gooch’s model for workplace pension contributions, which is, arguably, an omission
[30] I take the view that the agency model as costed by Mrs King is unnecessarily expensive for the current situation and, in the absence of supporting evidence, I am not satisfied that damages awarded to fund such a model would be applied for that purpose when there is a cheaper and, on the evidence I accept, wholly suitable alternative available. The pursuer’s condition is forecast to be stable for many years ahead. Were the aim to be rehabilitation, at the expense of a third-party insurer for example, I can see the sense in having a care provider contracted for at arm’s length from the injured party: but I do not see that it makes sense for the pursuer and her family in the present situation. Looking ahead to the time when Mr and Mrs Clark are in their mid-sixties and beyond, it would not be unreasonable to contemplate an agency model.
[31] Without attempting to be scientific about the matter but making the best judgement I can on all the evidence, the salient points of which are outlined above, my conclusion is that a weighted average approach should be used; that the average annual cost of ongoing care or support and case management should be assessed at £203,444 and that possibly the easiest way of expressing and presenting this is by splitting the whole life multiplier of 23.45 using a ratio of 3:2 so that a multiplier of 14.07 is used to capitalise the future annual direct-employment costs and a multiplier of 9.38 is used to capitalise the annual agency-provider costs. Some adjustments have to be made. An additional direct-employment oncost, mentioned by Mrs King, might possibly be workplace pensions provision in terms of the Pensions Act 2008 and subsequent legislation, which involves employer and employee contributions of a percentage of wages. No figure has been quoted. The extent to which this provision is to be treated as a cost depends on the effect of contributions on wages. I treat the currently proposed employer’s contribution as a cost. In order to take advantage of the flexibility offered by the direct-employment model an allowance is made for family support of one day‑time hour a day at the NJCLA point 8 rate quoted in evidence. Before presenting the figures something more needs to be said about case management and about the transitional or set‑up period.
[32] After the transitional or set-up period, the ongoing case management component for the direct-employment model is to be increased to 120 hours a year. This is both office time and visiting time. Ms Gooch’s travelling time and mileage is pro-rated at £26 per hour of case management provision. I have used Mrs King’s figure for the ongoing case management component of the agency-provider model without troubling about the difference between her lower allowance for mileage. The lifetime contingency provision proposed by Ms Gooch is realistic and it is to be apportioned between the two care model components.
[33] There is a difference between the experts, in presentation and in other ways, as to provision for the transitional or set-up period. Mrs King costs for family care pending the damages award in the sum of £53,311 a year. The hourly rate is £6.88--£13.76 for up to 18 hours a day, the higher rates being payable for night, weekend and holiday care. The costing assumes that the social services care package referred to above will continue, that is two carers attending together on Tuesdays, Wednesdays and Thursdays for a total of 16 hours, 32 hours of publicly-funded care a week in total. Mrs King’s report does not cost for a damages-funded care package while the family waits to move into a new house which has accommodation for a night carer. By my calculation if agency-provider care were to be provided during the day and family care at night, on Mrs King’s costings, the annual cost would be £182,980 for agency care during the day and £22,159 for family care at night, total £205,139. The case management requirement in “Year One”, the set-up period, is assessed by Mrs King to be for 114 hours at £95 an hour. The total “Year One” case management cost including travel time and mileage is £12,045. There is no specific mention of case management costs in connection with the move to new accommodation and I got the impression during the evidence that this is costed as part of the contingency provision. This contingency is also costed at £12,045. In sum, on Mrs King’s model, using the figures in this paragraph, the costs for a transitional or set-up period of one year total £229,229.
[34] Ms Gooch costs the transitional and set-up period under the heading “Scenario One: In Mrs Clark’s current home”. The costings assume that damages are available to fund care but that the family continues to stay in their present home while waiting to move into a new house which has accommodation for a night carer. The relevant elements for present purposes are general case management, case management for recruitment of support workers, case management for moving house, support workers providing day‑time care only and family care at night. The total case management cost, including travelling time and mileage, for a one‑year period is £16,030; the cost for day-time care and 24‑hour holiday care on the direct-employment model is £134,160 for the same period; and family care for the period is costed at £2,415. The total of these items is £152,605.
[35] No evidence is offered about how long the transitional period might be. On the view that the period is unlikely to be less than a year and for ease of computation I shall take the period to be a year. With the annual average cost I have derived I do not think it necessary to cost the set-up or transitional period separately. The derived annual average cost of £203,444 lies between the respective set-up or transitional year figures of £229,229 and £152,605. Subject to counsel’s comments on updating and calculation the outline of how the cost of future care is to be assessed from the date of the proof is given in the table that follows. The total provision for lifetime care and case management is £4,770,757.
Calculation of future care and case management costs
| Provision | Annual hours | £ per hour | Annual cost | Multiplier | Cost |
| Direct-employment care including holiday care [7/6, 62] | | | 146,748 | 14.07 | 2,064,744 |
| Add £1/hour for team leader [cf. 7/6, 62] | | | 1,820 | 14.07 | 25,607 |
| Add £5/night/57.6 weeks for sleeping night carer [cf. 7/6, 62] | | | 2,016 | 14.07 | 28,365 |
| Sub-total | | | 150,584 | 14.07 | 2,118,716 |
| Add 4% for pension [above] | | | | | 84,749 |
| Total direct-employment care | | | | | 2,203,465 |
| Direct-employment case management [cf. 7/6, 61—62] | 120 | 95 | 11,400 | 14.07 | 160,398 |
| Case manager’s travel time and mileage at £26/hour [cf. 7/6, 61] | 120 | 26 | 3,120 | 14.07 | 43,898 |
| Case management lifetime contingency pro rata [cf. 7/6, 62] | | | | | 10,882 |
| Total direct-employment care and case management | | | | | 2,418,643 |
| Agency-provider care [6/62, 21] | | | 242,335 | 9.38 | 2,273,102 |
| Agency-provider case management including travel time and mileage [6/62, 22] | | | 7,650 | 9.38 | 71,757 |
| Case management lifetime contingency pro rata [cf. 7/6, 62] | | | | | 7,255 |
| Total agency-provider care and case management | | | | | 2,352,114 |
| Weighted annual average/ lifetime total | | | 203,444 | 23.45 | 4,770,757 |
Occupational therapy
[36] I accept the defenders’ submission that there is no need to make separate and additional provision for occupational therapy. The case manager is likely to be an occupational therapist and I have almost doubled the provision for annual case management. Mrs King’s objection that it is inappropriate to have the case manager providing services is beside the point for the reason that, as the defenders’ correctly submit, the occupational therapy input is not actually therapeutic. It is about organising care, equipment and the provision by others, such as a physiotherapist, of therapeutic services.
Transport costs
[37] There is consensus around the proposition that compensation has to include any additional costs associated with the provision of a wheelchair accessible vehicle [WAV]. There is consensus that there would be additional cost in providing insurance cover for care‑worker drivers. Beyond this the defenders dispute that additional costs would be incurred. This is because the defenders assume that, if uninjured, the pursuer would have had a car anyway and, as an uninjured person, would have made much more use of the vehicle than she does and would do in her present condition so that, taking purchase and running costs together, the pursuer is actually no worse off than she would have been. The mileage estimates are not contested. For the pursuer it is submitted that it cannot be assumed that the pursuer would have owned a car. Her parents did not own a car until they had to buy a WAV to transport the pursuer or to allow the funded carers to transport the pursuer. It is submitted that the pursuer could not have afforded to buy and run a car, certainly not a new car, at the prices that have to be paid for suitable WAVs: wage loss is agreed on the basis that the pursuer would have earned £18,000 net a year on average over her lifetime had she not been injured. Assuming she would have continued to live in the city, she could, it is submitted, have used public transport.
[38] There were reservations all round, I think, about some of the oral evidence given at the proof about transport costs by both Mrs King and Ms Gooch. Since then further evidence has been offered in writing and by agreement [Joint Minute, 34 of process, 1(g) and annexes]. The effect of the agreement is that for a suitable WAV, there is either no difference in annual running costs compared with the no-injury situation or a small difference in annual running costs, depending on the specification of the WAV. Since the vehicles under discussion are both 1.6 litre Fiat Doblo models, one slightly more expensive than the other, I assume the difference of £95.00 a year is accounted for by a difference in depreciation. Ms Gooch’s new written evidence is that, because depreciation is included in the computation of standing and running costs, “the resale value is already accounted for”. I treat this as signifying that the capital cost of vehicles, initial and replacement, can be expressed as the annual figure given in the depreciation tables without bothering about purchase prices and residual values. If this is mistaken counsel can state the correct position.
[39] I do not read the parties’ agreement as conceding that the pursuer would have been a car owner if she had not been injured. I am not told whether the pursuer’s sister and her husband own a car. In the absence of other evidence, including statistical evidence about car ownership, I think it is not unreasonable to assume that there is at least an even chance that the pursuer would have married, like her sister, or set up house with a partner, and that her household would have had a car. In any event, without a car, she would have incurred public transport costs in an unquantified amount. On all the submissions and evidence about this matter, my assessment is that it is reasonable to allow one half of the annual transport costs agreed for the vehicle model proposed by Mrs King. The allowance is therefore half of £4,274.50, say £2,137.00. The annual cost of additional insurance has to be added, which I assess in the sum of £1,250 a year, splitting the difference between the lower figure presented for the pursuer and the higher figure presented for the defenders, total £3,387 a year, lifetime cost applying the 23.45 multiplier, £79,425.
Personal care equipment
[40] The only personal care equipment items now disputed are the after-shower Easydry System, the wet-floor shower system and the Neater-Eater robotic feeding arm. Having weighed the evidence and submissions on both sides, my judgement is that allowance should be made only for the first item, namely the Easydry System. On Mrs King’s evidence this is meant to supplement drying by hand, not to replace it. As Ms Gooch explains, drying by hand is essential to ensure that bed sores are not developing. Mrs King’s costing is not challenged and I accept it. Subject to correction, I take the cost to be the product of Mrs King’s annual cost of £59.90 multiplied by the lifetime multiplier of 23.45, which comes to £1,405.
Postural support items
[41] The disputed postural support items are the Dreama sleep system and the Bakare 2080 bed and mattress. For the reasons given in the defenders’ submissions I reject the claim for the Dreama sleep system. The present “hospital-style adjustable bed” has been “provided”, I assume by social services or by the NHS. Mrs King hints that free replacement is not guaranteed. On the hypothesis that the pursuer is to move house to fit-for-purpose accommodation and that the Bakare bed and mattress will facilitate turning by carers it is not unreasonable that the pursuer should have the new bed. I allow the claim for a new Bakare 2080 bed and mattress and for annualized replacement costs subject to the discount proposed by Ms Gooch to reflect the fact that the pursuer, if uninjured, would have had a bed anyway. Subject to correction, the appropriate allowance would seem to be the purchase cost of £3,059 and an annualised replacement cost of £306 multiplied by the lifetime multiplier of 23.45, £7,175, total £10,234.
Domestic assistance
[42] The claim for domestic assistance is valued by Mrs King at £1,716 a year. The claim is for “weekly heavy cleaning tasks, window cleaning or household laundry” for which, it is said, the support workers are not responsible. Mrs King’s evidence was led under reservation, the defenders having objected that there are no pleadings to support this head of claim. The objection is insisted on. The issue is about fair notice. The averment about domestic assistance founded on by the pursuer comes in the section relating to provision of services by the family and is not strictly in point [Closed Record (as further amended), No 30, 29D—E]. The need for domestic assistance is not specifically referred to in the section about the costs of care. At the proof stage it is proper for me to decide questions of fair notice having regard to the terms of expert reports and other documentary productions put in evidence as well as the pleadings. An intelligent reader perusing the pleadings together with Mrs King’s report could be left in no doubt that there is a claim for domestic assistance as part of the care costs and, for heavier tasks, in addition to the care costs. I take the view that the pleadings together with Mrs King’s report give adequate notice. There is no apparent prejudice. I therefore repel the objection to the admissibility of the evidence.
[43] I prefer the evidence of Ms Gooch on this matter, namely that the role of support workers is to do for the pursuer what she cannot do for herself, including all those domestic tasks that she would have done if she could. I see no difficulty with the proposition that the pursuer would have laundered her own bed-linen. The window-cleaning issue is resolved by reference to the hypothesis that the domestic assistance role will be performed in the new purpose-built or purpose-adapted ground floor, single-storey accommodation. If the pursuer, uninjured, would not have cleaned her own windows but would have employed a window cleaner, then that is not a charge which can be put on the defenders’ account. It is possible that Mrs King’s evidence on this matter gives some insight into restrictions on the role of agency carers. My decision is that there should be no allowance for “weekly heavy cleaning tasks” etc.
Disability sports etcetera
[44] The defenders’ objection to making provision for disabled sports activities is that the pursuer, if abled-bodied, would have incurred expense in relation to leisure activities anyway. For the pursuer it is submitted that disabled activities are more expensive than able-bodied leisure activities. The agreed value of this item is £1,124. Giving effect in part to the defenders’ point I shall allow £624 which is the annual cost of riding for the disabled, something which the pursuer currently does and enjoys doing. Subject to correction, I shall apply the lifetime multiplier of 23.45 which brings out a total for this item of £14,632.