Cornes v Southwood

Future care damages must reflect what the claimant reasonably needs and the expenditure he is likely to incur. The assessment should allow for reasonable contingencies supported by evidence, but should not become a speculative provision for every possible crisis. Where the evidence is inadequate, a claim for a particular future expense may fail for want of proof. The court may select a level of support between competing expert assessments, having regard to the claimant’s condition, likely response to support and the practical prospects of implementing the proposed regime. Support may properly be costed on an agency basis where that better provides a consistent team while reducing the risk of an unsuitable relationship with an individual worker.

The claimant suffered severe brain injuries when a motor car driven by the defendant collided with a bus shelter. Liability had been admitted, and judgment had previously been entered for damages to be assessed. By the assessment hearing, all heads of loss had been agreed except future care and case-management costs and related issues.

The court was asked to determine the appropriate level of ordinary support, provision for holidays, sickness and possible crises, the basis on which support workers should be costed, expenses incurred by support workers, and whether the agreed life multiplier should be reduced. The question of periodical payments was deferred because the necessary evidence was not available.

1. Future support. The court assessed future care by reference to what the claimant reasonably needed and the expense he was likely to incur. The higher expert assessment substantially over-provided, while the lower assessment was too parsimonious. The appropriate allowance was 33 hours per normal week until the end of 2009 and 18 hours per normal week thereafter.
2. Holidays and sickness. In the unsatisfactory state of the evidence, the appropriate allowance was 48 normal weeks per year and four enhanced weeks for holidays and the risk of sickness. The enhanced allowance was 66 hours per week until the end of 2009 and 36 hours per week thereafter. No separate annual crisis contingency was allowed. The claimant’s condition was static, and there was no adequate basis for assuming that a crisis would recur each year or require the extensive provision proposed.
3. Method of provision. Future care was to be costed on the basis of support workers obtained through appropriate agencies. That approach could provide a consistent team while reducing the risk that the claimant would become disenchanted with an individual worker. Direct employment was not shown to be practicable for the required hours and times.
4. Expenses. An allowance of £30 per week until the end of 2009 and £22.50 per week thereafter was made for support workers’ expenses in activities with the claimant. The claim for the costs of workers accompanying the claimant on holiday failed for want of evidence. The court would not guess the relevant travel, accommodation, food or other costs.
5. Multiplier and further procedure. The agreed multiplier of 24.67 was not reduced. Counsel were directed to undertake the calculations arising from the findings. The question of periodical payments was left for later determination if agreement could not be reached.

Liability had been admitted in the High Court proceedings. On 6 February 2004 judgment was entered for damages to be assessed. This hearing determined the outstanding assessment issues, apart from periodical payments.