Marchent v Allied Domecq Leisure Ltd.

For the purposes of determining whether a person is a patient, capacity to manage affairs is a legal question for the court. The court must consider all the evidence, including medical evidence, and apply the balance of probabilities. Capacity concerns understanding and decision-making, not the wisdom of decisions. The relevant affairs are business matters, legal transactions and similar dealings. A person must have sufficient insight to recognise when professional advice is needed and sufficient capacity to understand and act on that advice.

In assessing damages for care, the court must identify the care reasonably attributable to the injury, distinguish it from pre-existing support, and assess future professional care according to the claimant’s continuing needs.

The claimant was assaulted by doormen in the early hours of 7 July 1996 and sustained orthopaedic injuries and a head injury. Judgment had previously been entered by consent against Allied Domecq, which accepted 60 per cent liability. The trial concerned assessment of damages.

The principal issues were whether the head injury caused permanent frontal-lobe damage and behavioural deterioration, whether the claimant was a “patient” under Mental Health Act 1983 and CPR 21.1(2)(b), the effect on earning capacity, and the reasonable cost of past and future care.

1. Head injury and causation. The court preferred the evidence of Dr Eames and Dr Walton to that of Dr Dedman. On the evidence as a whole, the claimant had sustained frontal-lobe damage in the assault, causing permanent deterioration in behaviour and in his ability to live independently. The injury materially contributed to his loss of earning capacity and care needs.
2. Patient status. CPR 21.1(2)(b) defines a patient as a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering his own affairs. Applying the principles extracted from Masterman-Lister v Brutton & Co. [2002] E.W.C.A. 417 Q.B. and the Court of Appeal decision upholding it, the question was for the court, not the medical profession. The court considered all the evidence, applied the balance of probabilities, and treated the claimant’s pre-injury marginal capacity as having been displaced by the frontal-lobe damage. He was therefore a patient. The court rejected the contention that he might cease to be a patient at an indefinite future date.
3. Damages. The claimant was realistically unemployable, although his pre-accident earnings were assessed conservatively because his employment had been intermittent and low paid. Care had to be assessed by reference to the additional care reasonably required because of the injuries, allowing for the support he had already received before the assault. Applying Evans v Pontypridd Roofing Ltd [2001] E.W.C.A. CIV 1657, commercial care rates were reduced by 20 per cent. After the case-management structure was established, the court allowed the reasonable costs of a support worker and case manager, with the support worker’s hours scaled down to 14 per week.
4. The court assessed general damages at £55,000, past loss of earnings at £16,500, past care at £27,417.77, and further sums for future case management, support, therapy, decorating and transport. The parties were directed to agree the consequential order or return for a short hearing within 35 days.