Neutral Citation Number: [2009] EWHC 1117 (QB)
Case No: HQ05X01706
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/06/2009 

Before :

MR JUSTICE MACDUFF
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Between :

	JAMES PANKHURST	Claimant	
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	1. LEE WHITE                                                           2. THE MOTOR INSURERS BUREAU	Defendants	

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GERARD McDERMOTT QC and WILLIAM LATIMER-SAYER (instructed by STEWARTS LAW LLP) for the CLAIMANT
RICHARD METHUEN QC and HARRY STEINBERG (instructed by BERYMANS LACE MAWER) for the DEFENDANTS

Hearing dates: 24/06/2008 to 01/07/08 and 12/09/08
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Judgment

Section One; Introduction

1.1	This is a claim for personal injuries and consequential losses arising out of a road traffic accident. Liability is not in issue and I am concerned only with the quantum of damages. I can note that there was an issue about contributory negligence, but, following the trial of that issue, judgment was entered for the Claimant for 100% of his damages to be assessed.

Index to this Judgment: 

Section	Paragraph numbers	
1) Introduction	1.1 – 1.6	
2) Relevant pre accident history	2.1 – 2.14  	
3) Events from June 2003 to date: accommodation and care	3.1 – 3.8	
4) Summary of the claim	4.1 – 4.4	
5) The 100% principle	5.1	
6) Damages for pain suffering and loss of amenity	6.1 – 6.5	
7) Life expectancy	7.1 – 7.17	
8) Loss of investment income	8.1 – 8.27	
9) The agreed claim for care	9.1 – 9.4	
10) Accommodation and holidays; the benchmark	10.1 – 10.18	
11) Accommodation	11.1 – 11.95	
12) Holidays (over winter trips)	12.1 – 12.17	
13) The award	13.1 – 13.2 	

1.2	The accident: James Pankhurst was born on 3rd November 1954 and is now aged 54 years. He was aged 48 years when, on 7th June 2003 he was riding his pedal cycle upon an unclassified road at or near Trusham in Devon. He was struck by a Renault motor car, which was being driven by the First Defendant. He suffered most severe injuries. The First Defendant was not insured, and this case has been defended by the Second Defendant. Where, hereafter, I refer to the Defendant or Defendants, I should be taken to be referring to the Second Defendant.

1.3	The claim and remaining issues. This is a substantial claim and the parties have agreed most heads of damage. In particular, the Claimant’s claim for care has been agreed in the annual sum of £260,000; it has further been agreed that this should be paid as a periodical payment, indexed to ASHE 6115 at the 90th percentile. Insofar as this requires the court’s approval, I am satisfied that an award upon this basis is in the best interests of the Claimant, and of the Defendants also. I expressly approve that award. It is agreed that all other heads of damage should be awarded on a conventional lump sum basis. Damages for past care have also been agreed. Other past and future losses / expenditure have been agreed: (i) medical expenses, (ii) aids and equipment, (iii) travel and transport, (iv) additional household expenditure, and (v) IT, leisure and communications. 

1.4	There are outstanding issues. I have to determine: (i) the quantum of general damages for pain suffering and loss of amenity, (ii) the Claimant’s life expectancy, (iii) whether the Claimant has suffered a loss of income from investments as a consequence of the accident, and, if so how much, (iv) the quantum of the claim for holidays (although the Claimant prefers to call this “over-winter trips”), and (v) the quantum of damages for accommodation calculated in accordance with the formula established by Roberts v Johnstone [1989] QB 878. 

1.5	In fact, I have to determine the loss of investment interest, the over-winter trips / holidays, and the cost of accommodation for both the past and the future. For reasons which I hope will become clear, these last three (or six) heads of damage overlap (or perhaps I should say inter-relate). I cannot consider each of them in isolation. Additionally, the Claimant’s care package, although agreed, will need to be considered, as it has a potential impact upon the accommodation claim as well as the claim for holidays and over-winter trips. If I refer to this claim later in this judgment as “the holiday” claim, I do so for short hand purposes only; I do understand that it is not a holiday claim in the conventional sense. 

1.6	I can also mention another area of agreement. The parties have agreed to an order for provisional damages under Section 32A of the Supreme Court Act 1981. They have also agreed to an order in similar terms regarding variable periodical payments. The relevant experts agree that there is a risk of the Claimant’s developing a syrinx. If the Claimant did develop a syrinx, it could result in an increase in his care needs, for example if he were to become ventilator dependant. An order for provisional damages has been agreed so that damages are assessed now on the basis that the Claimant will not at any time in the future suffer a serious deterioration in his condition resulting from the development of a symptomatic syrinx or syringomyelia. It is also agreed that an appropriate order should be made under the Damages (Variation of Periodical Payments) Order 2004 to allow the Claimant to apply to vary the annual periodical payments in respect of future care and case management should he suffer such deterioration in his condition as to increase the costs of meeting his care needs. In due course, I can leave it to the parties to agree the final form of the Order.

Section 2: Relevant pre accident history

2.1	It is necessary to examine the Claimant’s background. He left school at age 15 and became an apprenticed hairdresser, obtaining a City and Guilds qualification. He then worked as a painter and decorator and entered business on his own account doing small building extensions / conversions, before, at age 19, opening a clothing shop, as well as designing and making designer clothes. He had partners in this business, which was extremely successful (B; pages 30-31). He told me that there had originally been four partners, but one of them (Tony) had died. I think the three remaining partners were himself, Pat, and Clive. Pat was in fact his then girlfriend Pat Prior.

2.2	So successful was he that, by his mid thirties, “I lived in a grand house called ‘Harvel Lodge’ which had five bedrooms and in excess of two acres of land. I had three top of the range cars …” (B31; para 4). He says it was a “rags to riches story”. He acquired Harvel Lodge in 1980, when he would have been 28 years old (B208 para ix). He did not live there alone. Clive and Pat moved in with him. He met his present wife, Susan in the mid 1980s and I gather that they cohabited at Harvel Lodge in the mid to late 1980s. So far as I am aware, Pat and Tony also lived there at this time, although this part of the evidence was not explored at the trial. I have to rely upon the witness statements, which Mr Pankhurst has provided at different times, as well as Mrs Pankhurst’s witness statements. These, of course, were taken, in the normal way, as forming their evidence in chief.

2.3	He had also begun to buy freehold properties to expand the business. He purchased properties at 112 and 114 Week Street in Maidstone in 1979 and 1982, when he would have been aged in his late twenties. I understand that these were purchased in furtherance of the business and were regarded as a business asset. They were intended to help to diversify the business.

2.4	When Mr Pankhurst was in his thirties (he cannot remember exactly when), he made the decision to retire from his business commitments. He told Susan (now his wife) that they were “going to give it all up and buy a motor home and travel”. All the cars were to be sold, and the house and the business would be distributed to his two business colleagues. By “give it all up” he clearly intended that they would give up not only the hard work of the business, but also the large income and the lifestyle which it bought.

2.5	He did indeed retire from his successful business. He moved out of ‘Harvel Lodge’ when he was 38 years of age. That, I interpolate, would have been in about 1992 (B31-32 paras 5, 6 and 7). The cars were indeed sold. The house and business were distributed to his business partners. Ms Prior, his former girlfriend had the house, Harvel Lodge. This was described by Mr Pankhurst as “gifting” (B177 para 3). The second partner, Clive, had the business and its good will. 

2.6	Mr Pankhurst retained the two properties at 112 and 114 Week Street. Each had a ground floor shop, with accommodation above. He converted the upper accommodation, in each case, into three self-contained flats. For a time, he lived with Susan in one of the six flats. The main purpose of these properties, however, was to provide the income upon which he and Susan would live. Thus, at the time of the accident, these properties were all let out to tenants, providing an investment income. There were two shop units and six flats available for letting.

2.7	In due course, he put his remaining plans into place. In 1996 he purchased a large second hand motor home for £42,000. “We travelled for about 18 months and realised that we enjoyed the life so much that we were going to live permanently on the road … We both required HGV licences, which we obtained in July 1998. In November 1999 we purchased a top of the range brand new 40 foot long motor home for approximately £120,000.” 

2.8	By the time of the accident, Mr and Mrs Pankhurst (I shall refer to Susan as Mrs Pankhurst albeit that they did not marry until after the accident) were living permanently in the motor home. They were spending 6 months of the year abroad “following the sun” mainly in Southern Europe. They travelled also within the UK staying on various sites. They were able to park at a friend’s farm for longer periods when servicing was required. They had no significant assets other than the motor home, and the Week Street properties. Their only income was the rent from those properties, providing “enough income for us to travel and live the life we wanted to” (B32 para 10). Net income (before tax) from these properties was £27,829 in 2001, £25,829 in 2002, and £29,099 in 2003. This was the sole income upon which they travelled around Europe, bought fuel, food, and clothing, maintained the vehicle, and paid site charges. In respect of the properties, Mr Pankhurst “did all the work and maintenance myself, including plumbing, electrical work, bricklaying and plastering etc. I also prepared all of the accounts myself and organised tenants”. This was for eight units – two shops and six residential flats. “Whilst Susan and I were away travelling one of my long standing tenants would keep an eye on the remaining properties and keep me updated with what was going on” (B32 paras 7 and 10). If urgent repairs were needed the Claimant was “only a plane ride away.” 

2.9	It is important to say a few words about the motor home. It was a ‘Damon Escaper’, undoubtedly top of the range. It would be wrong to dismiss this as a mere mobile home. There are pictures and specifications of this vehicle in bundle J pages 214 – 217. In 2000, not long after the Escaper was purchased, Mr and Mrs Pankhurst were featured in a Carlton Television motor programme, “Pulling Power”. I have been able to see a DVD of the programme, made at a time, of course, before the accident. Insofar as this was a mobile home, it was state of the art, and luxurious indeed. The vehicle was 39 feet long. It incorporated a large American style fridge and freezer, a fully equipped kitchen area, a bedroom with a queen size bed, a bathroom with lavatory and shower, two televisions, as well as many other features. The living space was divided into three areas, with the bathroom in between the bedroom and living accommodation. There were settees in the living room, with the kitchen fittings at the rear end of the living area. Settees could be put down to make further bed space. Perhaps most impressive of all was the way in which the living space could be expanded when the vehicle was parked. At the push of a button, a side of the vehicle moved several inches laterally to create a larger living area. The whole interior was spacious, providing approximately 350 square feet of interior space, albeit that much of this was occupied by the fixtures and fittings. 

2.10	Thus, to summarise, at the time of the accident, Mr and Mrs Pankhurst were living full time in the ‘Escaper’. They had no other home. They were travelling extensively spending about half the year in the UK and half abroad. They owned investment properties, which provided their sole income of just under £30,000 pa before tax (although, when they were in the UK, Susan did do some part-time HGV driving for wages). They had no other significant savings or investments. The Claimant did no remunerative work, save that he did let and service the eight units at Week Street, when he was in the UK. This was the chosen life style, and it was intended that it should be permanent. There was no intention to return to a more conventional way of life, involving remunerative working or house ownership. 

2.11	I have set out the above history, but I am not entirely confident of the exact sequence. There are a number of inconsistencies within the Claimant’s various witness statements, which were not investigated during the trial and which I only noticed during the time reserved for writing this Judgment. There appears to be some confusion between 1992 and 1996. It seems clear that Mr Pankhurst was conveying the impression that three things happened more or less simultaneously; he retired from the business, he left Harvel Lodge, and he distributed the assets of the business. However, at one point, he said that he disposed of Harvel Lodge to Pat Prior in 1996 (B66 para 121). In a different statement, he said it was 1992 (B208 para 121 [ix]). He said that he was 42 (which would have been 1996) when he retired (B176 para 2) but he says that he moved out of Harvel Lodge when he was 38 (B32 para 6). He said that he and Susan lived in one of the Week Street flats from 1992 to 1996 (B32 para 7) although, in another context, he said that he and Susan lived there for only a short period (B117 para 3).

2.12	None of this was explored when he gave evidence, and I have myself only noticed the discrepancies during the writing of this Judgment. It may be that there is an error in one or more of the witness statements. It may be that he moved out of Harvel Lodge sometime before he retired and / or before it was transferred to Ms Prior, although this in itself does not account for all the discrepancies. There is no independent confirmation of any of this, nor of the success of the business. (“I do not have financial records going back past 2000 and I certainly do not have records from my earnings in the fashion industry. The best I can do is to guesstimate how in my heyday we were turning over hundreds of thousands of pounds a year…. It was a very profitable business and it enabled me to retire … at just 42 years old”) (B176-7 para 2). So far as I am aware, there was little or no relevant disclosure of documents relating to these historical matters. None of this was explored in cross-examination. The Defendants accepted the Claimant’s evidence.

2.13	I note also that the two accommodation experts shared some doubt about the ownership of Harvel Lodge. (“Mr Cumbers and Mr Lord are unclear as to the ownership of Harvel Lodge”; E363.) I understand why they said this. Mr Pankhurst’s witness statements give the impression in places that he was being somewhat coy. By and large, he avoided saying expressly that he had been the owner of this property. The first time he mentioned Harvel Lodge, he said that he “lived in” a grand house (B31). He also appeared to be coy, at least in his witness statements, about the way in which Harvel Lodge was “gifted” (his word) to his business partner. He did not mention her by name, nor did he mention that she had been not only a business partner, but his former girlfriend. It is only by reading all of his witness statements, aggregating the information, sifting the inconsistencies, and supplementing it by his oral evidence, that it becomes clear that all the business partners were living in Harvel Lodge at one time or another and that the partner who inherited the house was also his former girlfriend. None of this explains why, when Mr Lord looked at Land Registry and other documents relating to Harvel Lodge, he found plans for proposed extensions dated January 1972 in the name of P Prior (E368). This was some eight years before Mr Pankhurst had acquired the property, and some two decades before he gifted the property to Ms Prior. (In his witness statement of 23rd June 2008, when he had clearly been told of this document, he said he could not explain it; B207 para ix)

2.14	He was not asked about these matters when he gave oral evidence and the Defendants accepted his evidence. It would be entirely wrong of me to draw adverse inferences from all of this and I do not do so. I raise it only to emphasise that, in spite of the discrepancies, I accept that: (a) he was the owner of Harvel Lodge, a “grand house”; (b) he chose to transfer the ownership in 1992 to his former girlfriend and business partner as part of his life plan to retire from business and travel; (c) the business was successful; and (d) his share of the division of assets was the two Week Street premises. 

Section 3: Events from June 2003 to date: accommodation and care

3.1	I need to recite briefly the events from the date of the accident to the present time, with particular reference to accommodation and care.

3.2	In the accident, in June 2003, the Claimant suffered severe injury, including spinal injury rendering him C4 tetraplegic. He also suffered hypoxic brain injury. I will, of course, be considering the detail later in this Judgment. He remained a hospital inpatient for some eight months, until February 2004.

3.3	Following his release from in-patient treatment, he was housed in local authority accommodation. He had no fixed home of his own, and it was clearly impossible to move back into the Escaper, although it was hoped that the Escaper could be retained for future use. (In the event, it was subsequently sold.) Originally, housing was provided at 15 St Welcume’s Way Harrietsham, Kent, on a temporary basis. Later there was a move to 10 Westmorlands, Maidstone. It is common ground that neither property was suitable. It was always acknowledged by the Defendant that Mr Pankhurst would need to find other accommodation. 

3.4	At some time between April and October 2004, a property, Archers Post, Swan Street, Wittersham, became available. The owner, Mrs Ravenhill, had died and the property was now about to be placed on the market. It had the huge advantage that it was in the village of Wittersham, next door to the Pankhursts’ friend Mr Andrew Sills. It was at Mr Sills’ farm that Mr Pankhurst used to park the Escaper during the time when he was in the UK and was not touring. The Pankhursts knew the village well, and with no other settled roots, this represented an ideal location. 

3.5	However, the property suffered from significant subsidence. Nevertheless, Mr Pankhurst determined to buy it. In order to finance the purchase, he put the Week Street properties up for sale. On 3rd June 2005, the Week Street properties were sold for £525,000. On 7th June 2005, contracts were exchanged upon Archers Post for completion on 4th July 2005 at £450,000. Thus was Archers Post acquired.

3.6	In due course, because of the subsidence, a decision was taken to demolish the existing house and rebuild. The property was demolished in the spring of 2006. In November 2006, the builder, Mr Froud, provided an estimate. The building work began in January 2007. The Pankhursts moved into the newly built Archers Post in November 2007. In summary, the property was purchased for £450,000. The building costs of the new house to date amount to some £740,000 and there are plans to extend further to build a new garage with additional carer accommodation at a cost currently estimated at £184,000. As currently built, Archers Post has an internal living area of 344 square metres, and provides luxurious accommodation. I will need to consider the detail later in this Judgment.

3.7	At this stage, I should also say a word or two about care. Since the Claimant’s discharge from hospital, Mrs Pankhurst has shouldered the burden of looking after him. Until the move to Archers Post, space dictated that there was a limit upon the number of carers who could be employed. Since November 2007, however, there has been a concerted effort to recruit carers. It is acknowledged on all sides that Mr Pankhurst requires a large number of carers. The intention is to recruit a team of twelve carers. Later in this Judgment, I will need to look at the care package, which it is agreed the Claimant needs and which is to be provided by a specialist employment agency. To date, six agencies have been tried. Currently, TCC (Total Community Care) is employed to recruit carers. There have been various recruitment drives, and numbers of interviews. To date the Pankhursts have been unable to recruit the large team of carers required. 

3.8	Thus, the up-to-date position is as follows. The Claimant and Mrs Pankhurst are living in Archers Post, which has been rebuilt and adapted for them. They have engaged an agency to provide Mr Pankhurst’s care needs, but, at the present time, they only have two carers to assist Susan Pankhurst in looking after the Claimant.

Section 4: Summary of the claim

4.1	As I have already mentioned, the parties have agreed many of the heads of damages. However, I propose to look at the full claim, so that the contested parts may be seen in context.

4.2	Agreed damages are as follows:
•	Medical expenses: The claimant put forward a schedule of past expenditure upon medical and therapeutic treatments. These included physiotherapy, reflexology, chiropody, eye tests, dental treatment, repeat MRI scanning, and speech therapy. Similar claims are made for the future. These also include claims for equipment associated with the therapies, which he requires, plus annual maintenance and replacement costs (including expensive Exercise FES cycle and many more modestly priced aids such as splints, suction machines and the like). It includes a claim for a contingency fund for possible emergency medical treatment. The parties have agreed the past costs in the sum of £31,041 and future costs in the lump sum of £240,000.
•	Additional aids and equipment: These include wheelchairs, pressure cushions, battery chargers, portable ramps and similar items, with annual maintenance and replacement charges. The parties have agreed lumps sums of £42,590 for the past, and £120,000 for the future.
•	Travel and Transport expenses: The past claim included Mrs Pankhurst’s travel costs in visiting the Claimant in hospital; also the cost of a Chrysler Voyager Entervan plus suitable adaptations, car hire charges, parking, the purchase of a second vehicle, insurance and mileage costs. For the future, the claim included replacement and depreciation costs of the Voyager, the costs of a second vehicle for Mrs Pankhurst and the carers, insurance, breakdown cover, car wash, additional running costs, and the like. The parties have agreed lump sums of £70,000 and £180,000 for past and future under this head.
•	Household expenses: These encompass additional household items necessitated by the injuries: toiletries, additional furniture, mattresses, cushions, clothing, bathroom equipment, lighting, and kitchen items. It also includes the purchase and installation of various hoists. There are additional items for the future, as well as annual maintenance and replacement costs. Agreed damages are £62,500 past and £110,000 future.
•	Leisure (excluding holidays; including computers and communication): Here the claim is for TV, and DVD packages, installation of a home cinema, environmental control system, computer and associated expenses including lessons, mobile phone, fax machine, reading table, extra telephone charges and the like. Agreement is for lump sums of £22,500 past expenditure and £130,000 for the future.
•	Care and case management: For the past, there are claims for the value of care provided by Susan Pankhurst; plus the cost of commercial carers (including food travel and recruitment costs) and case management. For the future, care is claimed for the provision of carers for 294 hours per week, plus associated costs and case management. A lump sum of £340,000 has been agreed for the past. For the future, periodical payments of £260,000 have been agreed.
•	In summary:
	£ Past	£ Future	£ Periodical Ps	
Medical expenses	34,041	240,000		
Aids and equipment	42,590	120,000		
Travel and transport	70,000	180,000		
Household	62,500	110,000		
Leisure computers etc	22,500	130,000		
Care and case management	340,000		260,000	

4.3	Contested heads of damage are as follows:
•	General damages for pain suffering and loss of amenity: Clearly, the Claimant is entitled to a substantial sum to compensate him for his severe injuries. The parties have been unable to agree a figure, and this is something which I will have to determine.
•	Loss of investment income and earnings: past and future: Here there is a claim for loss of income from the rented properties at Week Street between the date of the accident (June 2003) and the date of sale (June 2005). There is a future claim for loss of the investment income, using a multiplier and multiplicand approach. It is the Claimant’s case that he was caused to sell these income-producing properties by the accident and the need to fund the purchase of Archers Post. There is a continuing loss. This part of the claim is said by the Defendant to be misconceived. Here the total claim is for £173,000 (past losses) and £381,000 (future losses).
•	Accommodation: The claimant claims the cost of purchasing Archers Post, plus the building costs, using the Roberts v Johnstone formula. The Defendant asserts that the property was not a suitable one, that its purchase was unreasonable and that, in any event, the expenditure was excessive and, if allowed, would exceed reasonable compensation. Here the claim is for £575,111 (past) and £505,150 (future). This is in respect of a house which, when it is complete, will have cost over £1,300,000.
•	Holidays (over-winter trips): Because the Pankhursts had spent up to six months a year, touring abroad prior to the accident, there is a claim for holidays (over-winter trips) for four months per annum. The Claimant contends that this would be reasonable and provide him with “full compensation”. The Defendant contends that the claim is excessive and unreasonable; also that the model put forward (involving shuttling large numbers of carers between England and the holiday destination) is impractical and will not happen.

4.4	I also remind myself that I have to determine the Claimant’s life expectancy. This is another matter about which the parties have been unable to reach agreement. 

Section 5: The 100% Principle
5.1	At the risk of setting out trite law, I propose to direct myself now as to how I should approach the assessments of the outstanding heads of damage. First, I have full regard to Mr McDermott’s submission about the 100% compensation principle, with which I wholly agree. The Claimant is entitled to receive compensation, which will place him, as nearly as possible, in the position in which he would have been if the accident had not happened. Second, and as part of the first, I undertake to guard against the overlap between pecuniary and non-pecuniary loss. I fully accept all the Claimant’s submissions about this. When I come to make my awards, there will be no sense in which I will assume that a part of the general damages (which I have to award for pain suffering and loss of amenity) may be used to subsidise other heads of damage, for example holidays (over-winter trips) and accommodation. The Claimant is entitled to proper awards under all heads, based upon established principles. In effect, this amounts to ring fencing of the various awards.

Section 6: Damages for pain, suffering and loss of amenity.

6.1	What, then, is the proper award of general damages for pain, suffering and loss of amenity? In the accident, the Claimant suffered catastrophic spinal injuries rendering him C4 tetraplegic. There was a burst fracture of the first cervical vertebra; a fracture of the odontoid peg of C2; a posterior disc prolapse of C5/6; fractures of C6, C7 and T1; a burst fracture of T5; a dislocation of T4 onto T5; and further fractures of T2, T3, and T4. He suffered a severe hypoxic brain injury and was comatose for 12 days. Fortunately, he has made an excellent neurological recovery, although he has some continuing memory problems. He also suffered chest injuries with rib fractures and a right sided haemopneumothorax, managed by a chest drain, as well as head and facial lacerations.

6.2	At the time of the accident, Mr Pankhurst suffered a cardio-respiratory arrest, and required cardiopulmonary resuscitation, which was given by Susan Pankhurst, who had been cycling with him, when the accident occurred. He was taken to hospital by helicopter, intubated and ventilated. He underwent spinal and other surgery. He was treated in the ITU for around two months. He was then transferred to a Spinal Unit, had various therapies and procedures, and was not discharged from hospital care until February 2004.

6.3	It is agreed between the parties that the proper award of general damages, in today’s money, is within the range £205,000 and £255,000 having regard to the JSB guidelines and the decided cases upon which they are based. The level of the award within the bracket will be affected by a number of considerations, principally the extent of any residual movement, and the presence and extent of pain. It is to be noted that the top of the bracket will be appropriate only where there is a significant effect on senses or ability to communicate and will often involve considerable brain damage. Whereas it is true that the Claimant suffered brain damage, he has made a remarkable recovery with no discernible impairment of general intellect or verbal memory (see Dr Leng at C; 219e). He has proved himself able to understand and direct the litigation process.

6.4	He does, however, suffer from all of the usual sequelae associated with tetraplegia including double incontinence, wheelchair dependency, lack of sensation and the need for extensive care, as well as assistance with personal and domestic tasks. There are a number of other features to which Mr McDermott has referred me (he calls them “aggravating features”). I will resist the temptation to mention them all, if only to keep this Judgment within reasonable bounds; but I do have them in mind. A number of these features, however, do bear mention. The Claimant suffers from postural hypotension and has to keep his legs raised to prevent himself from becoming light-headed and his ankles from swelling; this increases the space which he needs to manoeuvre himself in his wheelchair, as he sits with his legs straight and horizontal. He has suffered a complete loss of sexual function, representing, of course, a significant loss of amenity. Because of his injuries, he will not be able to travel to distant places, including Australia and South America (places which he had planned to visit) – a further loss of amenity. I should also refer to the need for the Claimant to be suctioned regularly, which is not just an inconvenience, but is also distressing. He cannot feed himself, and certain foods can no longer be included in his diet. This, of course, is associated with a general and massive loss of independence. He has problems with swallowing, and suffers from sleep disturbance. Fatigue is also a problem. Everyday activities, such as eating and talking, lead to tiredness. He is particularly aware of his tracheotomy scar and dislikes the visual effect. Of most importance, the Claimant has gone from being someone who had a highly self-sufficient lifestyle to being almost completely dependent on others. I agree with the submission made on his behalf that his loss of amenity is of high order, as also is his awareness of that loss. I should also record that a film in the nature of “A Day in the Life of….” was provided for me, showing Mr and Mrs Pankhurst in their new home, Archers Post, going about their routines, including feeding, dressing, using the lifting equipment, and so on. I have viewed this film twice and have a very good understanding of the difficulties and complexities of the Claimant’s daily living.

6.5	In my judgment, the Claimant does not fall to be compensated at the top of the relevant bracket because of the absence of any effect on his senses or ability to communicate. It is the Defendants’ case that the Claimant’s injuries place him within the lower half of the range. On behalf of the Claimant, it is submitted that because of what are called the significant aggravating features, he should be compensated above the midpoint. However, in my judgment, many of Mr McDermott’s so-called aggravating features are, in truth, present in all or most cases of tetraplegia. I also have in mind one large “plus” feature, not enjoyed by all others who have suffered similar injuries; Mr Pankhurst is independently extremely mobile in his electrically operated wheelchair. He is able to control this with a chin-operated joystick, with tremendous facility and accuracy and to move about with some speed and manoeuvrability. I award the sum of £225,000 by way of general damages for pain suffering and loss of amenity. 

Section 7: Life expectancy

7.1	I can deal next with the discrete issue of life expectancy. In view of the facts (i) that the parties have agreed to an award of periodical payments in respect of the claim for the cost of care, and (ii) that they have agreed lump sum awards for many of the future losses and expenses, the issue of life expectancy will not have the greatest impact upon the final award. It will, however, affect the awards for holidays, loss of investment income (if any) and accommodation. 

7.2	The evidence on life expectancy came from Mr Brian Gardner, and Mr Anthony Tromans, spinal consultants instructed respectively by the Claimant and the Defendants. In his first report written in October 2004 (C; 2-39) Mr Gardner said this; “It is unclear what his life expectation will be. He will probably live into his seventies but where within this decade cannot be stated with certainty at present”. 

7.3	He next saw Mr Pankhurst on 29th August 2006: 
“I have come to the conclusion that his life expectancy is 20 more years. I will alter this opinion to 19 more years if a respiratory assessment indicates that his diaphragm function, vital capacity and other features place him in the high cervical tetraplegic group from the respiratory risk point of view.” (C; 72). 

7.4	Mr Gardner next visited the Claimant on 10th November 2007, one week after the Claimant’s 53rd birthday.
“At the time of my last report I assessed that he would live 11 fewer years than the average able bodied male aged 52 in the general population. Taking into account the balance of positives and negatives since the last report, I consider that the figure of 10.5 fewer years than average is the correct one. The average man will live for 30.7 more years; viz he will live for circa 20 more years from the age of 53.” (C; 92).

7.5	Mr Tromans’ first report followed a consultation on 15th June 2004.
“At this time I would rather not comment on this gentleman’s life expectancy but would like to see how he manages to avoid upper respiratory tract infections and the problems of swallowing at least over a 12 month period….” (C; 109).

7.6	In February 2006, following an examination on 19th November 2005, Mr Tromans wrote:
“I continue to think that he will not do very well and his life expectancy is probably less than that of a C4 tetraplegic which is in the order of 56% of normal (remaining life expectancy). I am of opinion that this gentleman’s life expectancy is less than 50% of normal, and is in the order of 15 years from his last birthday” (C; 128).

7.7	By January 2008, Mr Tromans was prepared to be more optimistic: 
“In my first report I was concerned about his ability to avoid upper respiratory tract infections and he has not experienced any. Whilst I continue to think that he will not do very well, he has managed to avoid hospitalisation. Therefore, his life expectancy is probably that of a C4 tetraplegic which is the order of 56% of normal (remaining life expectancy). His life expectancy is in the order of 17 years from his last birthday (his 53rd)” (C 151). 

7.8	Thus, at the time of the experts’ joint meeting (which took place on 28th March 2008) Mr Gardner’s up to date opinion was 20 years from 53rd birthday. Using the same starting point, Mr Tromans’ opinion was 17 years. These opinions were repeated in their joint report (C 152a).

7.9	That was not the end of their reporting. In an addendum report dated 18th March 2008, Mr Gardner repeated his opinion that life expectancy was to age 73 but cautioned: “were he to become ventilator dependent then he would probably live fewer years than this” (C; 254). Mr Gardner wrote two further reports (C; 266 and C; 270) both dated 12th June 2008, shortly before the start of the trial. In the first, he discussed the merits of a cough assist machine. In the second, he modified his opinion; “A loss of 9.5 to 10 years compared with the average man of his age is now more likely than my previously expressed figure of 10.5 years”. Putting that the other way round, it was now his opinion that life expectancy would be 20½ to 21 years from 53rd birthday. This improvement in prognosis was based upon the five factors which he set out in the report: (i) the Claimant’s intention to purchase and use a cough assist machine on a daily basis; (ii) that the Claimant had purchased an FES bicycle and intended to use it daily; (iii) the Claimant’s intention to spend his winters in southern Europe (iv) that “he has survived 6 more months since my last report, without significant illness…”; and (v) his consideration of a report from other experts to the effect that swallowing was being achieved without regurgitation, and that there was no history of aspiration.

7.10	Thus, when the two experts came to give evidence at the trial, the position on paper appeared to be this: Mr Gardner forecast a life expectancy of 20½ to 21 years from 53rd birthday. Mr Tromans’ opinion was 17 years from the same starting date. There was one further shift of opinion to come. When he gave evidence, Mr Tromans gave the Claimant an extra year – 18 years from 53rd birthday; this because he had not previously taken sufficient account of the fact that the Claimant was a life long non-smoker. Those were the competing opinions and the routes by which they were reached. 

7.11	I was not persuaded by Mr Gardner’s reasons for his late change of opinion. As recently as 28th March 2008 Mr Gardner had expressed the opinion that the Claimant’s life expectancy was 20 years from his 53rd birthday (C; 152a). By 12th June 2008, he had increased his estimate (C; 127). Of course, it is not uncommon for an expert to amend an opinion. Where this is in response to some change in circumstance or to his acquiring some new information, this may be entirely justified. However, in this case there was nothing new. It had long been known that the Claimant intended to purchase a cough assist machine. I regret that I did not accept Mr Gardner’s explanation that he regarded this as significant only when he learned that the Claimant was determined to buy and use the machine. There had always been such an intention, and it is noteworthy that there was a separate section devoted to this machine in the joint report (C; 152b). The same consideration applies to the FES cycle, which had been purchased by the Claimant earlier in 2008. Again, I regret that I formed the view that Mr Gardner was aware that this did not, in truth, justify his change of heart. Similarly, the Claimant’s intention to spend winters in southern Europe had long been known, and had been noted in earlier reports (see for example C; 44). Why did it not feed Mr Gardner’s opinion at that stage? Mr Gardner claimed to have been influenced to change his opinion by the Claimant’s having survived a further 6 months without significant illness. March 28th 2008 (when he estimated 20 years) and June 12th (20.5 to 21 years) are less than 3 months apart. Given the estimates of life expectancy, it is unsurprising that the Claimant should have survived that period (whether one takes it to be 6 months or some other period). Why, one might ask, should a survival of 6 months lead to a conclusion that there was a likely extra 6 to 12 months of life expectation? Fifthly, and finally, he relied upon a report from an ENT consultant and speech and language therapist which predated his opinions, and which only set out a known and unchanging position. In truth, there was no valid reason advanced by Mr Gardner to justify his change of opinion. On the contrary, his attempts at explanation only served to reinforce my view that he was tending towards the partisan. I found some of his replies in cross-examination to be designed to advocate rather than to inform. 

7.12	For a number of reasons, I preferred the evidence of Mr Tromans, whom I judged to be a reliable witness, genuinely attempting to assist the court. His late change of opinion was a concession freely made, and which did him credit. The change was in the Claimant’s favour.

7.13	I will mention, for illustrative purposes only, one of the reasons I preferred Mr Tromans’ evidence. When Mr Gardner gave evidence about the five factors which he said had caused him to revisit his opinion on life expectancy, he made it clear that he considered that the FES cycle was the single most significant. However, when he was questioned, it appeared that his own clinical experience of the benefits of such equipment was limited. His explanation of what he perceived to be the benefits was not persuasive. It became clear that Mr Tromans had much more expertise in this area. Indeed, he has published more than one study relevant to this issue. He was a lead clinician on a project investigating the benefits of FES equipment. His CV (see C; 278) sets out that “I am actively involved in research into the use of electrical stimulation for the restoration of function as a result of spinal cord and nerve damage.” He gave evidence that the use of FES equipment by the spinally injured has no measured benefits on life expectancy. It became apparent that Mr Gardner did not have the knowledge or experience of FES equipment to dispute that conclusion. He accepted in cross-examination that the benefit he perceived was a “theoretical extrapolation”.

7.14	I found Mr Tromans’ approach to the whole question of life expectancy to be persuasive. His starting point was the Frankel paper; “Long-term survival in spinal cord injury: a Fifty year Investigation” (C (ii); 46). This was a well-researched study incorporating recent data from the UK concerning the life expectancy of patients with spinal cord injuries. Mr Gardner, who was a co-author of this paper, did not argue with this as a valid starting point.  He (Mr Tromans) noted that the life expectancy of a healthy 53-year-old male is currently 30.7 years. His first opinion made in July 2004 (C; 109) was provisional. He thought that the Claimant’s life expectancy was probably reduced by 50%. For the reasons he gave, he thought Mr Pankhurst’s life expectancy was marginally less than that of a typical C4 tetraplegic (which is 56% of “normal” according to the Frankel study). There was a concern about the Claimant’s ability to avoid respiratory tract infections. In January 2008, again for good reasons, Mr Tromans considered, not without some reservations, that the Claimant could be compared with the average C4 tetraplegic. It was in direct reliance upon the Frankel paper that he assessed life expectancy at 56% of “normal” and reached his opinion. This was 17 years from 53rd birthday, which was the equivalent of 56% of the projection for a healthy male of that age. As already noted, he raised this by a further year to reflect the Claimant’s life long abstinence from smoking.

7.15	One of the difficulties with Mr Gardner’s opinion was that, although he regarded the Claimant as a high level C4 tetraplegic in terms of function, he treated him as a mid level C5 tetraplegic for the purposes of life expectancy. His explanation that this was because of Mr Pankhurst’s reasonable respiratory function was also not persuasive, if only because all self-ventilating tetraplegics may be expected to have similar lung function. I further judged that Mr Gardner had not made sufficient allowance for the Claimant’s swallowing difficulties and the risks of aspiration. I note that, in his Opening Submissions, Mr McDermott said (at paragraph 63); “Indeed whilst he is perhaps more vulnerable to suffering from aspiration than other tetraplegics, he is perhaps in a better position than most to cope with such an event given that both he and his carers are vigilant to prevent such episodes and someone is always on hand to help him if needs be” (my emphasis). Mr Gardner appeared largely to discount this risk.

7.16	I have not found it necessary to burden this Judgment with a review of the whole of the expert evidence on this issue. I appreciate that there was much other material, from both experts, which was directly relevant to the Claimant’s life expectancy. In preparing this Judgment, I have re-read the reports, and gone over my own notes of the evidence, as well as considering the very helpful written submissions sent by the parties. I hope I have not overlooked anything of relevance. However, there is one matter which I should mention. When he gave evidence about the paper at C2; 85 (Strauss; “Long term Mortality Risk after spinal cord injury”) Mr Tromans told me that he did not believe that that study included ventilator dependant patients. That turned out to be wrong. Mr McDermott relies upon this to demonstrate (i) the unreliability of Mr Tromans’ evidence generally and (ii) that this misconception may have led to an underestimate of Mr Pankhurst’s projected life span. I have this part of the evidence well in mind in reaching my conclusion on this issue.

7.17	Notwithstanding the matter to which I have just referred, and as I have previously stated, I prefer the opinion of Mr Tromans to that of Mr Gardner. I consider that an assessment of life expectancy of 18 years from age 53 is correct for a male patient with Mr Pankhurst’s injuries. If Mr Pankhurst was an “average” patient, 18 years would be the correct figure. However, I am persuaded by Mr McDermott that in one respect Mr Pankhurst is not “average”. He will have the benefit of a first class care package. This high level of care is likely to improve his prospects of survival. It cannot be gainsaid that, within the Frankel study there were subjects who also had first class care. But nor can it be denied that the Claimant will have care which will be better than the average. This helps to guard against the risks responsible for producing the reduction in life expectation, but also ensures that early warnings systems are in place, and prompt treatment is given in an emergency. I know, of course, that Mr Tromans told me that he had taken account of this in reaching his opinion. If I have any criticism of Mr Tromans’ evidence, it is that I feel that he may not have taken sufficient account of this factor. In my judgment, the correct figure is 19 years from the Claimant’s 53rd birthday and I so hold. The whole of life multiplier is thus 14.76.

Loss of investment income
8.1	I should now consider the claim for loss of investment income. It is put broadly in this way. Prior to the accident, the Claimant had the investment income from the Week Street properties. He himself serviced those properties; letting them, doing most of the repairs, plumbing, decorating, electrical works and so on, as and when necessary. He also did his own accounts. His own input enabled him to earn the income. From time to time, he may have needed to pay for specialist help on a particular project or repair; or to pay a contractor if there were urgent works required when he was touring. But, to a large extent, he himself did the work. Between June 2003 and June 2005 (the dates of the accident and the sale of the properties) he was unable to give his attention to the properties. He could not do the work. He could not do the letting. And he had to employ an accountant to do the accounts. Thus, he incurred extra expenditure, and the income went down. This loss was also incurred at a time when rents were (or should have been) going up, and that should also be taken into account. The loss thus sustained was directly caused by the accident. Insofar as the loss may be proved, this approach, for those two years is, I think, not controversial.

8.2	However, the loss alleged after June 2005 – to date and beyond – is certainly controversial. It is the Claimant’s case that he had no real alternative but to sell the properties (or at least it was reasonable for him to do so) in order to obtain the capital to purchase Archers Post. Subject to giving credit for the notional return on the capital realised by the sale, he should be entitled to recover the loss of investment income, calculated in the same way as loss of employment earnings. He should be entitled to the past losses over the period June 2005 to trial and also for the future. The court should make a finding as to (a) the amount of investment income, which he would have earned in the period leading up to trial and (b) his likely annual investment income thereafter. The notional annual income should be fixed as the multiplicand, and the appropriate multiplier should be applied. This loss, it is alleged, has been caused by the accident. If the accident had not occurred, the Claimant would have retained these properties, which would have continued to supply him with a stream of income, which he will not now have. 

8.3	I will deal first with this point of principle. On behalf of the Defendant, it is submitted that there is no loss. If there is a loss, it has not been caused by the accident. These are both submissions with which I agree. The claim founders in both respects; loss and causation. In my judgment, the Claimant has not lost this income-producing asset; he has merely converted it and retained its value, which was initially invested in the purchase of Archers Post. Whereas previously his asset produced a stream of income, it was converted into cash and then into the new property. Insofar as he will be compensated in respect of his accommodation claim, he may, if he wishes, reconvert. How the Claimant chose to use that cash is immaterial. He may have chosen to invest in another income-producing project. In fact, he chose to invest in Archers Post.

8.4	I do not apologise for using the word “choose”. The Claimant’s case is based, of course, upon the assertion that there was no choice; that this was the only means whereby he could acquire the property. If that were true, there could, in my judgment, still be no recovery, simply because there had been no loss. The asset is still with him, but in a different form. However, if I am wrong about that, (and if one assumes, for the purposes of this part of the Judgment, that Archers Post was a suitable property, which it was reasonable for the Claimant to buy) there was still no need for the Claimant to sell the properties when he did and it was unreasonable for him to do so. There was, in my judgment, no justification for his acting so precipitately.

8.5	It is, of course, the Claimant’s case that he acted reasonably in selling the flats for the purpose of funding the new property. He was stuck in “woefully inadequate local authority accommodation, and needed to get out”. The Defendant’s failure to agree an interim payment was “indefensible” and obliged the Claimant to proceed under his own steam. He took “sensible advice” in that he sought and relied upon the opinion of the experienced accommodation expert Mr Cumbers.

8.6	These submissions do not paint the full picture. Nor are they wholly accurate. I appreciate, of course, that there must have been urgency in mind and that the Claimant was anxious to proceed. I make allowance for it. The inadequate accommodation necessitated a speedy resolution of this problem, but it did not mandate the selling of his only real asset, at the expense of all prudence, certainly not before the possibility of interim funding had been exhausted. There was no immediate urgency. There was no competitor for the property. It was not going to go away. Reasonable prudence dictated, if necessary, a further wait, of weeks, even a month or two, rather than the selling of this income-producing asset. (In fact, such a wait should not have been necessary if a timeous application had been made for an interim award.) If there were evidence that the vendors were proposing to sell elsewhere and giving a deadline which could not be met before an interim award could be obtained, different considerations (subject to suitability of the property) might have applied. But that was not the case. 

8.7	In my judgment, the funding could (and should) have been made out of interim payments. The decision to buy Archers Post and to sell the Week Street properties had been made by March / April 2005, and probably earlier (see K97 and K98). On behalf of the Claimant it is said that there had been an early interim payment of £85,000 and that no further interim payment was made until October 2005. That was for £600,000. The application had been opposed. If, instead of putting Week Street on the market in the spring of 2005, an application had been to the court for an interim award, the Claimant could have had his second interim payment by June or July. Whatever the Defendant’s opposition, his application would have succeeded; see Stringman -v- McArdle [1994] 1 WLR 1653. I have little doubt that the Claimant would have been advised that an application to the court would be likely to succeed. I have not been told why the application was not made much earlier than it was. I could only speculate as to why I have not been told, but I decline to do so.

8.8	Nor is it true to say that Mr Cumbers advised him in this matter. Mr Cumbers certainly did not advise the Claimant to sell the Week Street properties. Nor did he advise the immediate purchase of Archers Post. His advice was always to the effect that the subsidence problem should be confronted first. In December 2004, he had written a letter (E48-9) which included: “I understand that the matter of subsidence is to be dealt with by the vendor’s insurance policy. Clearly the purchase price must reflect any works of repair that are left undone by the vendor”.

8.9	Later in this Judgment, I will have to decide whether the decision to purchase Archers Post was a reasonable one per se. At this stage, it is sufficient to note that (even if Archers Post was a patently suitable property which the Claimant reasonably wished to purchase sooner rather than later) I am satisfied that: (a) the Claimant suffered no loss by selling the investment properties; (b) if there was a loss, there was no causative link between the accident and that loss; (c) the decision to sell in order to fund the purchase of Archers Post was neither necessary nor reasonable and; (d) insofar as the Claimant received advice from Mr Cumbers, he certainly did not receive advice to sell his investment properties. As far as I can see, the Claimant took that decision on his own; there is no evidence that he was advised by anyone that it was sensible to sell the Week Street premises – certainly not from his lawyers.

8.10	Before moving on from this, I should make a further observation. The Roberts v Johnstone formula requires a Claimant to find the capital to fund the purchase of the property at the outset. Because of the way in which this works, there is a shortfall in virtually every case between the actual capital outlay a Claimant spends on buying a house and the amount recoverable under this head of damage. This has been subject to some critical comment over the years. In general, a Claimant would use part of his damages from another part of the case (pain and suffering for example or loss of future earnings) to buy the property. The Roberts v Johnstone approach makes the implicit assumption that a Claimant will have to “borrow” against other heads of claim to make up that shortfall between the damages awarded under the Roberts v Johnstone principle and the initial capital outlay. In so “borrowing” the Claimant may be at risk that he will not be able to meet his future needs. Even if he uses his damages for pain and suffering to plug the gap, he is deprived of those damages for the time being, which he might well have chosen to use in some other way. If he uses his damages for future losses, he will not have the use of those damages for the purpose for which they were intended, and / or he will lose the investment income upon them – investment income, which the court had assumed he would earn, when the multiplier was fixed and the award was made. In this case, it is acknowledged that the Claimant suffered such a shortfall.

8.11	This shortfall is consequent upon the operation of the Roberts v Johnstone formula and is not peculiar to the facts of this case. What the Claimant is seeking to do by making this claim is to avoid the long acknowledged side effect of the formula. His submission on the investment properties amounts to an attempt to re-write Roberts v Johnstone. In effect, he seeks to claim the difference between the annual amounts he would have received from that source and 2.5% of the capital sum notionally tied up in Archers Post. If this device is available to him, it would enable Claimants in all cases to fund the shortfall in one way or another. What is the difference between this and taking a loan to fund the shortfall? In such a case, the Claimant would be able to claim the difference between 2.5% and the percentage payable on the loan.

8.12	If this “shortfall” element is truly a flaw in the Roberts v Johnstone approach, it is not for me to remedy in this case. If I were to award damages for future loss of investment income in this case, that would be tantamount to supplementing and re-inventing the award of damages for accommodation. It would involve re-writing Roberts v Johnstone. 

8.13	For the reasons which I have given, there is no recoverable loss arising out of Mr Pankhurst’s decision to convert his investment properties into cash.

8.14	I must now consider what compensation to award for the period between the accident and the trial. The claim is pleaded at £173,700 (A311). The period must be considered in two parts. Loss of letting income from June 2003 to June 2005; this is clearly recoverable. From June 2005 to trial (June 2008) there is also, as I find, a loss; but this has now to be calculated on an entirely different basis. In view of the decision which I have just made, the Claimant’s claim for the related losses and expenses incurred in the sale of Week Street cannot be maintained.

8.15	I must first calculate the Claimant’s losses for the two years following the accident; that is to say for the period prior to the sale of the Week Street properties. What is the loss to June 2005? The relevant pre accident figures were as follows.

	Gross letting income	Expenses	Net income before tax	
y/e March 2001	£36,040	£8,211	£27,829	
y/e March 2002	£39,098	£13,912	£25,829	
y/e March 2003	£38,454	£9,355	£29,099	

For the two subsequent years the figures were

y/e March 2004	£38,140	£19,424	£18,716	
y/e March 2005	£46,864	£17,582	£29,282	

8.16	At first glance, it appears that there has been little, if any loss. Although I appreciate that I am concerned with the two years between June 2003 and June 2005, I propose to base the loss on March-to-March figures, if only to avoid part years. As this has to be a relatively broad-brush approach, extrapolation of the actual figures for part years would not paint any different picture upon which to found the assessment.

8.17	On behalf of the Claimant, it is suggested that (for the two years ending with the sale of the Week Street properties) I should assume that, but for the accident, the net figures in the last two columns would have amounted to £40,000. The loss should be computed thus: Notional net profits but for the accident; £80,000. Less the actual sums (£18,716 + £29,282). Loss before tax: £32,002. Loss after tax: £25,392. (Figures taken from A310-311).

8.18	It is clear from looking at the figures in the above tables that (a) there was a significant increase in turnover in 2004 to 2005 compared with earlier years, and that (b) in both the years following the accident, there was an increase in expenditure. This increase in expenditure is explained, at least in part, by the need for the Claimant to employ others (including an accountant) to do work which he would previously have done himself. It thus seems clear to me that there is some loss of net income, if only because of the extra expenditure caused by the injury, and the effect that this has had on the bottom line profit.

8.19	In supporting the claimed loss of £25,392, the Claimant submits that the following have to be brought into account. That there were upwards only rent review clauses in the leases on the two shop premises; that the properties were in an improving area, and higher rents could be achieved; that the flat which he and Susan had occupied was on the verge of being offered for letting (it appears that it may have actually been let shortly before the accident, although the evidence about this was not clear); that, at the time of sale, the full rental value of all the premises was assessed by Surveyors at £54,000.

8.20	These assertions would have had more relevance to claims going beyond June 2005, if the Claimant had been able to sustain the main plank of his argument about future loss. It seems to me that the gross letting income has held up well after the accident, and that some of the points advanced on the Claimant’s behalf are actually reflected in the large increase in gross income during 2004 – 2005. If there is any loss at-all in gross letting income, it is a small one. The real loss is to be found within the expenses column. In my judgment, a fair approach is to make the following calculation. I take the average expenses for the three years pre-accident and the average expenses for the following two years. I make a small allowance for inflation. I subtract the notional tax. For the two years post accident, for loss of rental income, I award the sum of £13,000.

8.21	I must now consider the Claimant’s losses, if any, (a) from June 2005 to date, and (b) for the future. As a result of the accident, regardless of whether he retained or sold the properties, the true loss falls under two subheads. First, the Claimant is no longer able, as he was before the accident, to manage the properties, to do the letting, to do some (perhaps most) of the repairs and decoration, prepare the accounts, and so on. Secondly, there is a general loss of earning capacity, which should be compensated.

8.22	As to the first of those two subheads, some time was taken, during the trial, in cross-examination of the Claimant, aimed at making a valuation of his personal contribution to his letting business. His input could be measured by considering the additional amounts which a property owner would need to pay commercially to third parties to manage and maintain the properties. This could be checked (as I have done above) by reference to the drop in profits post accident, when the tasks previously done by the Claimant had to be done by others, and had to be paid for. This again has to be painted with a broad brush, and does not bear any detailed analysis. In my judgment, the Claimant’s contribution to the letting business as at, say, June 2005, would have been approximately £10,000 per annum. That is, in other words, the value which he added to the business by his contribution – letting, managing, repairing, decorating and the like. That is the approximate annual salary the business would have afforded to him for the work he did. This, it must be recognised, was sporadic work, and it was likely to become more sporadic, as the Claimant developed his declared ambitions to travel more widely to more distant places than southern Europe – for six months out of every twelve. The sum of £10,000 is gross income. Some modest uplift would be needed between 2005 and 2008 to reflect the falling value of money. Allowance has to be made for income tax. Doing the best I can, I award the sum of £22,500 for the three years between June 2005 and June 2008, which I take to be the date of trial. The loss from the date of accident to the date of trial thus amounts to £35,500 in total and that is the sum I award for past financial loss.

8.23	The second subhead needs to be considered. This is solely a future loss, because I am satisfied that the Claimant would not have sought any employment in the period 2003 to 2008. There is no evidence that he ever intended to return to paid employment, and there is no reason to assume that he would have done so in the five years following the accident. He has, nevertheless, lost the ability to do so. This is a real loss, which needs to be compensated. It is a loss which it is impossible to quantify with any accuracy or confidence. On the one hand, Mr Pankhurst might (as he intended) have seen out his life without ever doing any further remunerative work other than managing and letting the properties. On the other hand, whether through choice or necessity, he might have decided to re-enter the jobs market. He might have wanted to try and re-establish himself as a businessman. That is most unlikely. He might have done some occasional HGV driving during his stays in England, or indeed some other work. At the trial, I voiced some concern as to how the Pankhursts would manage in the more remote years, when the Escaper became older and required repair or replacement. It seemed to me that the relatively modest earnings of the investment properties might not sustain Mr and Mrs Pankhurst for the rest of their lives, and that some supplemental income might be required. I was reassured that this would be most unlikely. Nevertheless, it is a concern which I still have, and which I continue to recognise. Whatever the likelihood of future working, the Claimant has undoubtedly suffered a loss of employability, a loss of earning capacity. I observe that any loss would be likely to be in the more remote future. The prospect of Mr Pankhurst having wished to seek work within the next few years is small. In the more distant future, there is a greater risk of loss. In the even more distant future, the potential for loss reduces again, at a time when the Claimant would have passed retirement age.

8.24	As at June 2008 (after making allowance for inflation) I assess the work loss at £8,000 per annum. I assess the loss of earning capacity at £5,000. Both are net of tax. Both are from June 2008. The total annual loss is to be assessed at £13,000.

8.25	What is the correct multiplier? There is, of course, an argument for applying different multipliers to the two different parts of the loss. In fact, I propose to apply a whole of life multiplier for the full £13,000 for a man with a life expectation of 19 years from his 53rd birthday. This is agreed at 14.76 years. But I then propose to discount the resulting sum by 15%. My thinking is this. First, I am sure that, but for the accident, the Claimant would have kept the Week Street properties, and would have continued to service them as he had previously done (albeit with some help from time to time). He would likely have done this for the rest of his life. Thus a working life multiplier, whether to 65 years, 70 years, or some other age would not be appropriate. On the other hand, in later years, with increasing age, he might well have decided (if he could have afforded to do so) to do a little less, and to employ others to do some of the work. He may have become ill or less active. Thus, some discount is called for. As to his loss of earning capacity, the loss would have continued beyond normal retirement age, and one does not know whether he might have sought some remunerative work at an older age. He would have found that harder to come by, in his later years. 

8.26	I add one postscript to this part of the judgment. I did consider whether it would be more appropriate to assess the loss of earning capacity in stages: a smaller amount for the early years, with increments for the later years, and then using the accuracy of the Ogden tables to apply varying multipliers. However, this assessment does not claim to have the accuracy of a really firm evidential base and (to repeat the phrase) I have to paint with a broad brush. Accordingly, I have resisted that temptation. I acknowledge that the potential for loss increases with the passage of time and that the annual loss in the later working years might be assessed as a higher annual figure than it is at present, before reducing again in the more remote years. I have attempted to factor this in to my own calculation, making allowance for the fact that the discounting for the remote years will be greater than for the earlier years, and that the possibility of loss reduces again after notional retirement age. Doing the best I can to assess the unknown, I have reached the conclusion that a whole of life multiplier, applied to a multiplicand of £13,000 is a fair assessment, with a 15% discount of the resulting figure to take account of the much smaller potential for loss during the very remote years, post retirement.

8.27	Accordingly, the award is £13,000 x 14.76 x 0.85 = £163,098.

Section 9: The agreed claim for care.

9.1	I have already noted that the parties have agreed damages in respect of the claim for care. As to the future, there are to be annual periodical payments at a starting sum of £260,000 per year. That is an enormous amount. Although this is all agreed, I need to look at the future care package, because it has an important impact upon the contested claims for accommodation and holidays.

9.2	I have already noted that Mr Pankhurst requires 294 hours of care per week (a week consisting of 168 hours). The broad picture is this. The 24-hour day is divided into two periods; waking hours (14) and night hours (12). There are not 26 hours in the day, but there will be some small overlap, and there is travelling time to be paid. During the 14 waking hours, there will be two carers for 10 of those hours, and just one carer for four of them. During the night (12 hours) there will be a waking night carer and a reserve sleeping night carer. Thus, there will be two carers on duty for almost the whole time. 

9.3	As already noted, 294 hours is the equivalent of 6 people working a 45 hour week. That does not take any account of annual holidays. In reality, the Care Agency will need to find a bare minimum of nine care workers, all working long hours, to operate the intended model. If one takes a working week as comprising 40 hours, and if carer annual holidays (to include bank holidays etc) are factored in, it would take between nine and ten full-time care workers to provide the full package.

9.4	The intention is to have two teams of care workers, each of six people, working various shifts; a total of twelve employees. This is the intended model, accepted by the Defendant. Only time will tell whether or not it will prove possible to recruit and retain that number of care workers to work in Wittersham.

Section 10: Accommodation and Holidays; the Benchmark

10.1	There are now two outstanding heads of damage – accommodation and holidays. I need to direct myself as to how I should approach the quantification of these two outstanding claims. I note at the outset that what might be considered recoverable for one Claimant might not be so for another. Whether or not a head of loss or damage is recoverable, the test is, of course, reasonableness. The Claimant is entitled to damages to meet his “reasonable requirements” or “reasonable needs” arising from his injuries: see Sowden v Lodge [2005] 1 WLR 2129.  Where there is a range of reasonable options, it is not a requirement that the Claimant should take the cheapest.

10.2	In Rialis v Mitchell (1984) Times, 17 July 1984 Stevenson LJ said (in that case in the context of a claim for the cost of care):
“For if it is a reasonably foreseeable consequence of the wrong done … the defendant cannot complain that it requires payment of a very large sum of money. The court must not react to dreadful injuries by considering that nothing is too good for the boy which will ameliorate his condition and increase pathetically little enjoyment of life which is all that is left to him; that would lead to making the defendant pay more than a fair and reasonable compensation.  But the court must not put the standard of reasonableness too high when considering what is being done to improve a plaintiff’s condition or increase his enjoyment of life… I think the right question is: what is it reasonable to do for this injured boy? … The defendant is answerable for what is reasonable human conduct and if (the Claimant’s) choice is reasonable he is no less answerable for it if he is able to point to cheaper treatment which is also reasonable”  (my emphasis).

10.3	There are two sides to the coin. A Claimant is not entitled to the world. But what is fair and reasonable must be liberally judged; the standard for judging the Claimant’s actions is not high.  McGregor on Damages (17th edition) puts it this way at para 7-064:
“In mitigating his loss the claimant victim of a wrong is only required to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer”.    

10.4	A similar sentiment was expressed by Sachs LJ in Melia v Key Terrain Ltd(1969) No 155B:
“The standard of reasonable conduct required must take into account that a claimant in such circumstances is not to be unduly pressed at the instance of the tortfeasor. To adopt the words of Lord Macmillan in the well-known Waterlow case, the claimant's conduct ought not to be weighed in nice scales at the instance of the party which has occasioned the difficulty” (my emphasis).  

10.5	In his closing submissions, Mr McDermott QC, on behalf of the Claimant, said this:
“The only issue in this case where such principles might have such relevance is in relation to the claim for accommodation, but since this is a past loss and the Claimant bought Archers Post using his own funds to provide suitable accommodation for him as a result of his injuries, it is submitted that Rialis is directly applicable and given that the Second Defendant’s case is that the Claimant has acted unreasonably in relation to some decisions, the proper legal analysis is whether the Claimant has failed to mitigate his loss having first ascertained the benchmark that could reasonably have been expected” (my underlining).

10.6	The Defendant contends that I am not concerned with mitigation of loss, but rather with compensation for loss sustained. It seems to me that this is immaterial. In either event, as was made clear by Stevenson LJ in Rialis, it makes no difference. The test is the same: whether or not the purchase of Archers Post was reasonable in all the circumstances. 
“What the plaintiff here claims has been spent, is being spent and will be spent … may be looked at as mitigation of the injury and damage done to him by the defendant’s negligence or as a natural result of them. In either case the question is: is it reasonable?” (per Stevenson LJ) (my emphases). 

10.7	I note Mr McDermott’s reference to a “benchmark”. He submitted that the question should be approached by the court in two stages. The first stage was to set a benchmark as regards the level of the Claimant’s reasonable expectations, in accordance with the principle of 100% recovery, before moving on to consider the reasonableness of the actions (in this case the decision to buy and adapt Archers Post with all the expense which that involved). The second stage was to consider the reasonableness of the decision-making and the expenditure incurred, measuring it against the benchmark. That all had to be set against the background that the standard of reasonableness should not be set too high. I agree with this submission. I am also prepared to adopt the word “benchmark”.

10.8	In developing this submission, Mr McDermott explained the benchmark, and the principles by which the Claimant’s “reasonable expectations” should be divined. He said, at three different points in his written submissions:
“Thus  a claimant who had a good  lifestyle with high quality accommodation pre-accident is entitled to be provided with sufficient damages to purchase a similar style of accommodation post-accident taking into account any additional space requirements on account of being in a wheelchair.”

“So a high earner or a claimant with a very good lifestyle before an accident will tend to recover more by way of damages than someone else who earned less or was not used to the same high standards.” 

“The issue of reasonableness and whether or not the Claimant has acted reasonably to mitigate his loss must be seen in context. In argument, reference was made to the ‘Rolls Royce’ argument. However, this argument only applies if the Claimant had a Ford Cortina before the accident and there has been some element of betterment following the accident: if in fact the Claimant had a Rolls Royce before the accident, he is perfectly entitled to a replacement of a similar standard to what he had before.  In this scenario, the issue becomes not whether it was reasonable to purchase the Rolls Royce but whether a fair price was paid for it. Only if the Claimant paid over the odds for the Rolls Royce should the claim be reduced.”     

10.9	Herein, as it seems to me, is the crucial issue. It is the Claimant’s case that he enjoyed a fine lifestyle before the accident. He was used to the comforts of a large and impressive home (Harvel Lodge) and had followed the sun for 6 months of the year in a luxurious motor home. Thus, his reasonable expectations should be set at a high level. He should be entitled to a large house with many facilities (including it may be said a spare bedroom for guests to visit, a large dining area where guests could be entertained, as well as many other facilities, such as a large sun lounge/ conservatory, unrelated to his disability). He should also have long trips to Portugal and elsewhere to enjoy the winter sunshine, as he had done pre-accident. Only in this way could he receive full compensation to reproduce, as nearly as possible, his pre-accident life style.

10.10	On the other hand, the Defendant submits that, at the time of the accident, the Claimant had left Harvel Lodge behind. He had no fixed abode. When it comes to assessing reasonable compensation for accommodation and holidays, the Claimant should not be entitled to two Rolls Royces where he previously had only one. So far as his living accommodation was concerned, he had voluntarily swapped a Rolls Royce for a Ford Cortina long before the accident. He was no longer living in a “grand house” and Harvel Lodge was an irrelevance. He had no facilities for entertaining guests pre-accident (except within the confines of the Escaper). He had made a choice between a comfortable home with high earnings on the one hand, and a nomadic lifestyle in a motor home with modest income on the other. He had chosen the latter. 

10.11	In his final submissions, Mr McDermott QC said this;
“An ……. analogy would be that of a successful accountant or barrister of similar age to the Claimant who, through hard work, owned and along with his family enjoyed a sizeable country home and perhaps a second holiday home, but then suffered equivalent injuries. … there would be limited scope for suggesting that the claimant in such a position was not entitled to a large loss of earnings claim, plus adaptation costs for both properties to enable him and his family to come somewhere near to, but obviously not reach, their pre-accident quality of life.”

10.12	How, one may ask, is that a valid analogy? This notional claimant is a successful barrister or accountant who owned and enjoyed a sizeable home plus a second holiday home; a working barrister or accountant, as he has a large loss of earnings claim. He would be entitled to a loss of earnings claim, because he was working and was deprived of his substantial earnings. The loss of earnings claim is beside the point, given that I have to apply a 100% recovery principle and that damages under each head are to be separately assessed. That claimant would be entitled to adaptation costs. But, if he had to buy a new property, suitable for adaptation, he would have to bring the value of his existing home into the equation. And (for the very reason that he was working and funding a life style allowing him to own and enjoy a sizeable home) he could have no claim to four months of winter breaks. 

10.13	So, what is the appropriate “benchmark” for Mr Pankhurst? How should I assess his “reasonable expectations”? In due course, I will need to consider whether parts of his claim exceed reasonable expectations. But first, I should examine what has been called the “benchmark”, and, albeit in broad terms, attempt to define it in Mr Pankhurst’s case.

10.14	In my judgment, the “benchmark” must take account of this. Mr Pankhurst was, at the time of the accident, a man who had been a successful business man, but who now had but two major assets – the Escaper, which he had bought for £120,000 and the Week Street properties, which were worth (when they were later sold) £525,000, and which provided him with an investment income of about £30,000 per annum. He had no home other than the Escaper, and no other income. He had no house of his own to set against the purchase of a home to be funded by the Defendant to provide for his needs. True it is that he had lived in good quality accommodation in the past. But he had not done so for many years. When he had lived in Harvel Lodge, he needed to work in business to afford it, and he could not travel. When he travelled in the Escaper, he could not enjoy or afford a Harvel Lodge lifestyle. Why should Harvel Lodge be brought into account at-all, (at least to more than a minimum extent) when the benchmark is being considered?

10.15	 If the accident had occurred (say in 1991) when Harvel Lodge was his property and his home, it would have served as an important ingredient of the benchmark. If it could not have been extended or adapted to meet his needs, he would have been entitled to buy a similarly impressive property. However, he would have had to bring into account the value of Harvel Lodge to set against the cost of the new home. In fact, the Claimant disposed of Harvel Lodge long ago, and should be taken to have received full value for it (having “gifted” it as part of a wider settlement). All he is able to set against the cost of his new accommodation is the value of the Escaper. 

10.16	There is another ingredient. If the accident had occurred at that time (1991), the Claimant would not have been able to formulate a claim for four months of European travel per year. When he was living in his “grand house”, he was not following the sun for six months a year. In order to be a successful businessman, he had to work and earn a living. How can it be the case that, by giving up his former life style, by renouncing his income and giving away his home, he can increase the value of his damages claim? How can he claim both the cost of a magnificent new home (without any significant value in his existing home to set against it) as well as extensive and expensive holidays?

10.17	It would be wrong for me to take too restrictive a view, because Mr and Mrs Pankhurst undoubtedly enjoyed their life travelling together. They say that they did not miss having a fixed home, and the Escaper was luxurious. But their lifestyle was undoubtedly restricted by a modest income, and they did not have the security of their own home other than the Escaper. Nevertheless, it seems clear to me that reasonable expectations should not encompass both a fabulous expensive purpose built house with all the additional features and facilities, funded almost completely by the Defendant, as well as hugely expensive holidays for four months every year. 

10.18	In my Judgment, it is necessary for the Claimant to reduce his expectations to make them reasonable. Clearly, because of the history, the two claims (for accommodation and holidays) cannot be considered each in isolation. I propose to make adjustments to reduce the expectations in respect of both those heads of damages, to try and balance the equation, and to give the Claimant reasonable compensation, having regard to the pre-accident history: an award which is also fair to the Defendants: perhaps two Ford Cortinas for one Rolls Royce. I must set the “benchmark” in an appropriate place. It is in a very different place from that urged on behalf of the Claimant. It is aimed at providing 100% compensation, whereas it may seem that the claim as formulated seeks substantially more.

Section 11: Accommodation

11.1	With that “benchmark” in mind, I need to consider the claim for accommodation. It is the Defendant’s case that the purchase of Archers Post was unreasonable from the outset; that it was not a suitable property. Alternatively, if it was a reasonable purchase, there has been a huge overspend on the adaptations, going well beyond the provision of reasonable compensation. Before considering the details of the claim for accommodation, both past and future, I must consider this issue of principle. Was this a suitable property for the Claimant to buy? Did he act reasonably in buying it?

11.2	To assist me in making this decision, I heard evidence from two expert witnesses. I heard from Mr Steve Cumbers, an architect who specialises in healthcare design, instructed on behalf of the Claimant. Over the years, he has provided many reports in personal injury claims and has given evidence before the courts on frequent occasions. The Defendant instructed Mr Stewart Lord, also an architect with many years of experience in the field of disabled design and accommodation needs. He has also prepared reports in cases of this nature and has given evidence, although much of his practice has been concerned with advising local authorities and other public bodies upon building provision for the disabled. I will consider their evidence as I make my findings.

11.3	How do I approach this issue? It is agreed that it is a two-stage process. First, I determine whether the purchase was reasonable. That is a question of fact. If I find that the purchase was unreasonable, I do not move on to consider the allegations of what I have termed “overspend”. I would allow the reasonable costs of what has been called a “generic” property. If, on the other hand, the purchase was reasonable, I must look at the various items of expenditure and disallow those, if any, which were excessive (or unreasonable).

11.4	I can note, in parentheses, that I received a somewhat startling submission from Mr McDermott QC upon the correct approach to this. The Defendant had submitted that there was a duty upon the Claimant to act prudently. In his closing submissions, Mr McDermott said this:
“Whilst it may be said that the Claimant ought to act prudently since he is spending the defendant’s money we submit that this may not necessarily reflect the state of the law” (my emphasis).

11.5	In my judgment, it certainly does reflect the state of the law. Surely, the duty to act reasonably involves acting prudently. But, I have to remind myself that the bar is not set high. The Claimant’s actions have to be judged against the background that he has been disabled by the tort feasor, and that there is an element of need and urgency. He is not obliged to mirror the actions of the careful investor with time on his hands to weigh all the options. I must take account of the fact that he was put into a position of need by the Defendant’s negligence. His conduct is not to be weighed in “nice scales”.

11.6	Before considering these questions and making that judgment, it seems to me that it would be instructive to look at Archers Post as it is today, and what it provides in the way of accommodation. I appreciate that, in one sense, it could be said that I would be approaching the question from the wrong end (I will endeavour not to do so). But it is as well to have the finished product in mind, and to consider it against the “benchmark”; the reasonable expectations of a Claimant with no fixed home of his own and a lifestyle in a mobile home (albeit the very top of the range) sustained by an income of £30,000 pa. 

11.7	However, when I come to judge whether this was a suitable property, and whether the Claimant acted reasonably when he exchanged contracts upon it, I agree with Mr McDermott that I should not take the benefit of hindsight. The actions of the Claimant must be judged as at the date of purchase, and what was then known about the property.

11.8	Archers Post, as it currently stands, is a luxurious property indeed. I have visited it. Mr and Mrs Pankhurst are rightly proud of it. It has a total internal living area of 371 square metres. On the ground floor there are: a large kitchen (22 square metres); dining room (25); living room (40); integral sun lounge (22); physiotherapy room (21); Claimant’s bedroom (27); Claimant’s en suite  bathroom (13); second bedroom (17); hobbies room (11); family bathroom (9); and utility room (12). On the first floor, there are a large bedroom (40); en suite shower room (7); and a carer suite incorporating kitchenette and en suite shower (23). There are 81 square metres of “circulation space” (ie halls landings) and there are two staircases, and a lift. The layout, as built, is shown in photographs taken by Mr Lord, the expert architect, instructed by the Defendant (E321 to 338) together with plans at E318 and 319. Archers Post has been built to exacting standards, with several state of the art features. Fixtures and fittings are of the finest. No expense has been spared. There are, for example, a ground source heat pump, and a standby generator. 

11.9	In order to judge whether it was reasonable of Mr Pankhurst to purchase the property, I need to look at the circumstances in which the property came to be purchased. I note at the outset that the property suffered from significant subsidence. It is important that I should consider the evidence about this, as well as the evidence of the expert witnesses as to what accommodation was appropriate for a man with Mr Pankhurst’s injuries.

11.10	I begin in July 2004 when Mr Cumbers was first instructed on behalf of the Claimant. This was at a time when Mr and Mrs Pankhurst were living at 15 St Welcume’s Way, and before Archers Post had become available. He visited the Pankhursts on 14th July 2004 and produced a Preliminary Report dated October 5th 2004 (E; page 1). Apart from providing evidence of the inadequacy of the accommodation then occupied, he provided a professional opinion upon Mr Pankhurst’s needs based upon his then assessment. His detailed opinion is to be found between E15 and E20.

11.11	At that stage, the Claimant did not have any specific property in mind. Mr Cumbers’ report estimated the cost of acquiring a bungalow property in the area of Kent where the Pankhursts had recently lived, the approximate amount of living space he would reasonably require, and the likely cost of necessary building works to provide whatever adaptations and extensions may be needed. Of course, with no particular property in mind, Mr Cumbers’ opinion was very much a preliminary one, providing a “ball park figure” which would need to be revisited as and when an actual property became available. I will need to return to that report later in this Judgment. For the moment, it is sufficient to note that Mr Cumbers visited Mr and Mrs Pankhurst in July 2004, assessed their needs, and provided his report some three months later. He noted (E25) that:
“The search for suitable accommodation should be confined to dwellings where the whole of the accommodation is at ground floor level and at one level throughout” (my emphasis). 

Also: 
“The dwelling should have approximately 176 square metres of adaptable space. If smaller, it should have potential for adaptation and extension to achieve approximately 176 square metres”. 

11.12	He researched the availability of bungalows within the area of Kent where the Pankhursts were then living and found 4 out of 15 bungalows which would be suitable for adaptation. These had an average cost of £500,000 (E25). Using his vast experience, he estimated likely building costs of £190,000, which might achieve a market enhancement value of £20,000 (E27). 

11.13	His proposals can be summarised in tabular form.

Reasonable accommodation requirement	Size in sq metres	
Lobby (ideally connecting with garage for transfer)	5	
Sitting room (large size needed for reasons given on E15)	22	
Physiotherapy and Exercise Room	12	
Hobbies room	10	
Kitchen (requirements noted on E16)	15	
Dining Room (see E17)	12	
Utility and laundry	5	
Bedroom 1	19	
Guest bedroom	13	
En suite bath to bedroom 1 (size & access requirements E18)	10	
Bathroom 2	4	
Carer Accommodation	20	
Circulation (hall corridors etc)	23	
Storage	6	
Total area in sq metres	176	

11.14	Three observations: (i) Within that report was all the material needed for a Roberts v Johnstone calculation to be made; (ii) if the report had been accepted by the Defendants or the court and the claim had been settled or determined before an actual property had been identified or purchased, the award would have been based upon those figures; and (iii) the report represented Mr Cumbers’ own expert opinion of, at the very least, what might be termed the “ballpark” figure for acquiring and adapting a suitable property for Mr Pankhurst in the relevant locality. Spend £500,000. Adapt for £190,000. Achieve a property with the above accommodation totalling about 176 square metres, worth, say, £520,000. 

11.15	After Mr Cumbers had written that report, Archers Post became available following the death of the previous owner, Mrs Ravenhill. The Claimant’s solicitors made enquiries about the property before it had been advertised for sale. (I am not sure that it ever was advertised for sale.) There is a letter dated 14th October 2004 (K84) from solicitors acting for the executors, responding to a letter from Mr Chamberlayne, the Claimant’s solicitor. It is also clear that the property was already known to be subject to subsidence. The letter included, “I have not seen this subsidence report to which you refer”. (The relevant report is from Peter Back and Associates to the late Mrs Ravenhill’s insurers; K40-68).

11.16	Mr and Mrs Pankhurst were taken with the property. At the very least, they were taken with the location. They commissioned a survey report (K280-297). This was dated 13th October 2004. The report identified the subsidence problem:
“The most significant item of concern is that the structure is affected by subsidence which appears to have been monitored by Insurers over a lengthy period of time. It is important that, prior to exchange of contracts, you obtain all information which is available with regard to the investigation and monitoring by Insurers / Engineers …” (K283). 

11.17	The report further noted that there was clear evidence that the property was suffering from structural movement. There was cracking to all principal rooms at ground level, particularly in one corner, together with further cracking at the upper level and there was evidence of recent continuing movement. Before Mr Pankhurst should proceed, he should make further enquiries to ascertain what remedial action was being taken, and the insurance position should be protected (see K286). Other advice was given including (at K283) “on the assumption that the property is in its present condition but structurally sound, we would assess the current value as being in the region of £425,000 - £450,000” (my emphasis). 

11.18	Mr Cumbers visited Archers Post on 15th December 2004 in order to view the property for the first time. He wrote a letter dated 17th December 2004 (E48-49) giving advice, which included:
“I understand that the matter of subsidence is to be dealt with by the vendor’s insurance policy. Clearly the purchase price must reflect any works of repair that are left undone by the vendor … I would recommend the commissioning of an independent structural report to discover what should be done to repair the dwelling. My initial feeling is that this may involve major underpinning. This being the case, it may be more viable to demolish the bungalow and rebuild.” (E49)

11.19	In fact, Mr Cumbers wrote two letters – 17th December 2004, and 26th January 2005. They are reviewed at E54 and E55 and they bear careful reading. He advised in strong terms that the Claimant should obtain a structural engineer’s report, and also that a further detailed report should be obtained from Mr Back (who had produced the report at K40). 
“I am sure Mr Back’s up-dated report will deal with all of this in full, but I come back to my initial advice to obtain a second opinion on Mr Pankhurst’s behalf so that the full cost is known before agreeing to the asking price” (E55) (my emphasis).

11.20	At the same time and in the same correspondence, Mr Cumbers noted that, if one took account of the accommodation at first floor level, the total area amounted to more than the 176 square metres that he had thought would be required. At ground floor level alone, the area was 159 square metres, only a little below what would reasonably be required. He also said this: 
“In my opinion, this property is suitable for appropriate extension and adaptation to meet James Pankhurst’s likely long-term accommodation needs. In terms of location, the property is absolutely ideal for the couple as it is next door to their closest friends. In terms of costs, my preliminary report anticipated that approximately £500,000 would be spent acquiring a suitable property and approximately £190,000 would be spent extending and adapting appropriately. If this property were to be acquired for the lesser figure of £450,000, I would be of the opinion that this represents good value for money. The saving on purchase cost may though be offset by extension and adaptation costs that are somewhat higher than envisaged to achieve appropriate separation in terms of carers’ accommodation and appropriate garaging.” (E48-49)

11.21	These letters are of significance in two respects. First, having seen the property (subject to the underpinning works being done or provided for by a reduction in price) Mr Cumbers held to the opinion that the accommodation would cost no more than he had originally stated in his preliminary report, although the balance between purchase price and adaptation works might change. The adaptation costs were likely to be higher than anticipated because of the need to provide separation of carer accommodation and garaging. Secondly, he put down another marker about the subsidence, and the need for a structural report with provision for remedial works to be done outside the budget which he was setting. It was for the vendor or the vendor’s insurers to pay for this work, or for it to be reflected in a price reduction. Most importantly, an independent structural report was needed before the sale should go ahead. Insofar as he thought that the property “represented good value for money”, that was subject to his caveat that the subsidence problems had to be resolved.

11.22	As noted above, Mr Cumbers had advised that an up-dated report should be obtained from Mr Back. In fact, Mr Back was never asked to produce an up-dated report. This is a relevant piece of evidence, which I will have to consider carefully. It is particularly relevant when I come to consider Mr McDermott’s repeated submission that Mr Pankhurst acted at all times upon Mr Cumber’s advice. 

11.23	There then followed some correspondence between solicitors (i) concerning the insurance position and the works which were needed, and (ii) negotiating for the sale. It is clear that Mr Pankhurst had made up his mind to go ahead with the sale by early March 2005 at the latest (see K95). In order to fund the purchase, Mr Pankhurst had decided to sell 112 and 114 Week Street, and these were put up for auction on 3rd June 2005 (see K98).

11.24	The Defendants were now made aware of Archers Post and Mr Lord visited on 17th March 2005 to view the property for the purpose of a report to the Defendant. Mr Lord had also (as Mr Cumbers) already produced what one might call a “generic” report (December 2004; E181) in which he assessed the Claimant’s accommodation needs. Following his visit on 17th March 2005, he produced a second report, dated May 2005 (E216 – 278). He expressed the opinion that Archers Post was not a suitable property for a host of reasons – principally because it was in a bad state of repair (with particular note of the subsidence). The costs of restoring the property, together with the adaptations required as a result of Mr Pankhurst’s disability, would be disproportionate.

11.25	On 4th May 2005, there was a letter from Messrs Stewarts (solicitors acting for the Claimant in this litigation) to Messrs Gullands of Maidstone (solicitors acting for the Claimant in the property purchase) (K106). A number of questions were posed. Had the vendors arranged for the remedial works to be done, and, if so, were the works yet complete? Was it clear that the works were to be funded by the insurer? Was it understood that the insurers would continue to fund any later works, even if Mr Pankhurst were to extend or rebuild? Additionally, the letter emphasised that Mr Cumbers had advised that an independent structural engineers’ report should be obtained before Mr Pankhurst exchanged contracts.

11.26	That letter was answered on 6th May 2005 (K108) enclosing a letter which the writer had sent to Mr Pankhurst two days previously (K109). It did not, however, answer the questions posed by Messrs Stewarts (and it is clear that those questions were never answered). The letter to Mr Pankhurst gave a “layman’s understanding” of what had “apparently” caused the problem, and stated that, if a period of monitoring (to end in June 2005) had been completed satisfactorily, contractors (Booker and Best) would be given the go ahead to do the works (presumably at the expense of the vendor’s insurers). 
“It would therefore seem it is going to be some time in June that the outcome will be known as to whether the problem has been solved. Once again we must stress this is my layman’s understanding of the situation and you need professional advice to make sure you are not buying a property that is subject to continuing or unresolved problems”.

11.27	On 3rd June 2005, the Week Street properties were sold for £525,000. Within four days (on 7th June 2005) contracts were exchanged on Archers Post for completion on 4th July 2005 (see K110) at £450,000. As far as I am aware, the Claimant received no advice from his solicitors (that is to say those who act for him in these proceedings) and it has never been suggested that they were involved in any way in the decision to buy, except insofar as they wrote to the conveyancing solicitors, Messrs Gullands. Nor have I been told about any advice given by them. It seems that the Claimant acted entirely on his own in selling the Week Street properties, and in buying Archers Post. It has been submitted that he relied upon the advice of Mr Cumbers; I will need to look at the evidence about that in due course. In any event, contracts were exchanged on 7th June 2005.

11.28	Before exchange of contracts, Mr Pankhurst did, as he had been advised, seek a report from structural engineers. The report (written by Mr Davies of the Alan Baxter Partnership) (K117 – 121) was dated 10th June 2005, three days after the exchange of contracts, although there was a discussion by telephone between Mr Pankhurst and Mr Davies before the formal report was sent. 

11.29	When Mr Pankhurst made his first witness statement in this case (17th September 2005; B1-20) just three months after exchange he said: 
“Our surveyor said that the building is structurally sound. There are cracks that have been monitored by Peter Backs and Associates and they have observed (sic) any further movement”. 

11.30	That, I fear, was a misleading statement. It is entirely clear that the report: (i) gave no assurances about the stability of the remaining structure following repairs to the affected parts (ii) noted that important drain and tree works had not been carried out, and (iii) (of particular importance) referred the matter for comments by Peter Back Associates (who had provided the original 2003 report) on the question of whether underpinning was required. It may also be noted (iv) that the report ended with the recommendation (K121) that “it is most important to continue insurance cover with the present insurers.” 

11.31	By the time that report was received by Mr Pankhurst, contracts had already been exchanged. When Mr Davies spoke with Mr Pankhurst on the telephone, the purpose must have been to give a summary of his opinion. It is inconceivable that Mr Pankhurst could have been given the impression that the property was structurally sound. It is also inconceivable that he would not have been told of Mr Davies’ reservations and concerns, which were to appear two or three days later in his report. 

11.32	Mr Pankhurst then exchanged contracts before he received the written report (i) notwithstanding that no assurances had been given about the stability of the remaining structures (ii) without making provision for the drain and tree works to be carried out (iii) without referring the matter back to Peter Back Associates (or anyone else) on the question of whether underpinning was required, and (iv) without securing continuing insurance cover with the existing insurers. It goes without saying that he had not had the benefit of reading the structural engineer’s full report, because it was not provided until three days after exchange.

11.33	Thus it was that Mr Pankhurst acquired Archers Post. No structural remedial works were in fact undertaken by the vendors or their insurers. No undertaking was given by the insurers that they would continue to bear the risk; or that they would bear the future costs of structural repairs, whether in respect of existing settlement damage or future subsidence. Mr Pankhurst paid the full asking price. There is no evidence to suggest that there were any other potential buyers, or that there was any immediate urgency. I am sure that if there had been competition for this property, I would have been told about it. It is difficult to imagine anyone else expressing interest at that price for a property with unresolved subsidence problems, particularly having regard to the fact that the valuation was of £425,000 to £450,000 only if the property was structurally sound.

11.34	On 14th July 2005, the Defendants formally let the Claimant know their views about Archers Post. They filed their Defence to the action with a counter schedule attached. The Particulars of Claim had set out the Claimant’s position, identifying Archers Post, and specifying the provisional amount of the claim. In the meantime, as noted above, the Defendant’s expert, Mr Lord had visited the premises and had produced his report of May 2005. The Counter schedule (A55-56) served on 14th July 2005, was based upon Mr Lord’s report. It noted that the Claimant proposed to purchase Archers Post for £450,000, that he proposed expenditure of £381,000 on extensions and adaptations, which would achieve a betterment value of only £20,000. That in itself was neither reasonable nor necessary. However, there were also other matters. The property was in a dilapidated condition, with problems with drainage, the presence of asbestos, infestation of wood boring beetle, and the need for renewal of wiring and piping. Additionally, there were signs of significant structural movement, the cause of which was still not known. The Defendants took the view that (a) this property was not suitable, even if costs were as pleaded (£450,000 plus £381,000 less £20,000) and (b) that these costs were likely to spiral out of control.

11.35	The Defendants were unaware that, in one sense, the pleading was too late. They were unaware that the property was already in Mr Pankhurst’s ownership.

11.36	It was not only the Defendants who were unaware. Mr Cumbers revisited the property on 15th June 2005. He noted that Mr and Mrs Pankhurst were “determined to proceed with Archers Post”. So concerned was Mr Cumbers about the stability of the existing building that he had recommended a valuation of the land only (in the event of the need to demolish and rebuild). That valuation was not done. Quite remarkably, he also was unaware that contracts had been exchanged, and he confirmed that he was not told at or before that visit. 

11.37	I return to the witness statement made by Mr Pankhurst in September 2005 (B1-20). He described Archers Post between paragraphs 23 and 57. In particular, he commented upon Mr Lord’s report. He also commented upon the counter schedule to the effect that the property was unsuitable. He thought that the property could be suitably adapted. He explained why Wittersham was a location of choice. He said, “We looked at Archers Post three times before we bought it and we had our own valuer look at it. He valued it at £425,000 to £450,000” (B9). Mr Pankhurst omitted to say that the valuation was on the strict basis that the property was structurally sound. He referred at paragraph 44 (B13) to the size of Archers Post. Even when the corridors have been widened, “the rooms are of sufficient size that they will still be an appropriate size for me … “. Also (B19): “When we found Archers Post we had to think very seriously about what to do. On the one hand, we knew we had a property that would provide not only the living space we needed, but also a feeling of being a home”. And elsewhere (B13): “That is the advantage with Archer’s Post - the rooms are of sufficient size that they will still be an appropriate size for me when the corridors are adapted” (all my emphases).

11.38	The impression at that time was that Mr Pankhurst was of the opinion that the space offered by the existing house (really a dormer bungalow) would be sufficient, and that the rooms would be of adequate size even when walls were moved to widen the corridors. There was certainly no indication in that statement that there would be a claim for the enormous enlargement which has in fact taken place.

11.39	I can now consider Mr Cumbers’ second report (E50-100E). Although not written until February 2008, it dealt with events from June 2005. In the report, he iterated that:
 “I understood that the matter of historic subsidence was to be dealt with by the vendor’s insurance policy … (and) … the purchase price must reflect any works of repair left undone by the vendor in this respect” (E54).

11.40	The report is particularly significant in that the costs of adaptation were now going to be considerably increased. His original report had not taken account of:
“the size of accommodation required to achieve the increased wheelchair manoeuvrability space required by Mr Pankhurst’s seated posture; it did not include a conservatory; it did not include the retreat bedroom for Mrs Pankhurst; it did not include the second carer facilities required at that time, or items such as the standby generator or ground source heat pump, all of which in my opinion it has been appropriate to include. It made no allowance for their history of having owned a property like Harvel Lodge.” (E54) (my emphasis). … “I am now of the view that Mr Pankhurst’s special requirements considerably exceed those I contemplated at the preliminary report stage. As I have indicated previously, my initial feeling was that the necessary extensions and adaptations to Archers Post were likely to be in excess of my preliminary costing.” (E55-56).

11.41	It is important to note that that report was written in February 2008, long after the expenditure had been incurred. The water had already passed under the bridge. This was only Mr Cumbers’ second report, and it included a great deal of historical detail. It was not a report designed to assess what would be an appropriate way forward. It was a retrospective report assessing the reasonableness of what had already been done. The “considerable excess” to which Mr Cumbers referred was in fact the difference between £190,000 and £924,000. 

11.42	On 10th June 2005, Mr Cumbers had been instructed to undertake a measured survey and to prepare drawings as existing and to illustrate outline proposals for (i) extending and adapting and (ii) rebuilding. He revisited on 15th June 2005. He noted that Mr and Mrs Pankhurst were “determined to proceed with Archers Post”. Remarkably, as mentioned earlier, he was unaware that contracts were already exchanged and he was still not told.

11.43	This appears to have been Mr Cumbers’ moment on the road to Damascus. He had previously stated that a single storey bungalow of 176 square metres at a total cost of under £700,000 would provide for the Claimant’s reasonable needs. He had visited Archers Post some six months earlier, and had been able to assess the property. Although he put no figures on it, his letter of 15th December 2004 was clear enough. The total cost would be much the same, with the saving in purchase price (£50,000) likely to be set off by an increase in adaptation costs.

11.44	But, when Mr Cumbers produced his plans in June 2005 (unaware that the property was already purchased) his plans were for a much larger property than 176 square metres, and (although not costed) would clearly take the total purchase price well over the £690,000 mark. December 2004: £690,000 and 176 square metres. June 2005: a huge increase on both fronts.

11.45	It was at this time that he produced the plans in bundle L smaller copies of some of which are appended to his report between pages E77 and E95. The plan at page E87 depicts to all intents and purposes, the scheme eventually adopted. With one or two exceptions, this is the same house that Mr Pankhurst has built. The main exception is the garage to the side of the house (south I think) and the proposed carer’s bedroom and sitting room above the proposed garage. Although these have not yet been built, I am asked to award damages to enable the garage and carer accommodation to be built. In fact, although dated June 2005, I understand that this is a modification of earlier plans and was drawn probably in August 2005. It may be compared with the plan at E84, with particular relevance to the north end of the building. The kitchen and dining room have been enlarged considerably. There is also an enlargement and improvement to the physiotherapy room.

11.46	There is another feature of all these plans. The finished article was designed to be the same, whether the existing building was to be (i) adapted and extended or (ii) demolished and rebuilt. This can most easily be illustrated by looking at a plan produced by Mr Lord at E340. The more heavily shaded walls represent the new property; the light shading is the previous house. In broad terms, Mr Cumbers’ intention was this. If the original house was secure, such original walls as coincided with the new walls could be retained, and incorporated into the new structure. If it were demolished the new house would be built to the same plan. A quick glance at E340 demonstrates that, if the original house could be used, it would still be necessary to demolish a very large part of it. The plans were identical in either event. This was not to be adaptation and extension in the normal sense of those words. It was to be either (i) a total rebuilding or (ii) a virtual rebuilding.

11.47	Between June 2005 and December 2005 (see E58-59), Mr Cumbers continued to be involved with events. He had some correspondence with Peter Back and Associates. He wrote to the conveyancing solicitors to chase up the engineers to enquire whether underpinning was advised. He produced some modified drawings in August. He assisted with a planning application. 
“On 8th December 2005, I was instructed that Mr and Mrs Pankhurst had decided that they would rebuild the dwelling ... employing Chris McMullon of Sevencroft Ltd directly to obtain Building Regulations approval and would be directly employing a local builder…” (E59)

11.48	Thereafter, Mr Cumbers took no further part in the construction of the present Archers Post. He “bowed out” as he put it in about December 2005. At that time, there had been no costing of his new plans.

11.49	A word about size: A comparison between plans 2005/54/04 (only in bundle L) and plan 561/07B shows how the property was to grow. This can also be seen by comparing the front rear and side elevations of the original bungalow (E79) and the proposed new bungalow (E85 and elsewhere). 

11.50	That growth is apparent not only between the original and new Archers Posts. It is also apparent that Mr Cumbers’ (and the Claimant’s) size requirements had grown substantially over the period. Whereas Mr Cumbers originally stated that a size of around 176 m sq was reasonable, the finished article (if and when the side extension has been built) will amount to almost three times that amount. As it now stands, it is more than double the originally recommended size.

11.51	The following table summarises this part of the evidence:

	Generic property (sq m)	Archers Post original 2005	Archers Post 2008	Archers Post as proposed	
Lobby	5				
Living room	22	35.4	39.8	39.8	
Physio etc room	12		21.4	21.4	
Hobbies room	10		11.1	11.1	
Kitchen 	15	15.4	22.0	22.0	
Dining Room 	12	12.1	25.2	25.2	
Utility 	5	6.2	12.2	12.2	
Bedroom 1	19	23.3	27.3	27.3	
En suite bath	10		13.5	13.5	
Bedroom 2 	13	14.1	17.0	17.0	
Family bathroom 	4	4.5	8.8	8.8	
Carer suite	20		22.6	22.6	
Circulation 	23	25.5	81.5	81.5	
Storage	6	10.6	(integral)	(integral)	
Bedroom 3		11.7			
WC		2.2			
Sun room / conservatory			22.0	22.0	
First floor bed 		35.1	40.0	40.0	
First floor bath		6.6	7.2	7.2	
Garage		20.3			
Garage and extra carer				 Approx 100	
Totals (sq m)	176	223	371	471	

11.52	It is not only size which has increased. It is also cost:

	Cost of property	Adaptations	Total build costs	
October 2004	500,000	190,000	690,000	
December 2004	450,000	240,000	690,000	
Pleaded	450,000	381,000	831,000	
Froud estimate November 2006	450,000	532,000 (i)	982,000	
Current June 2008	450,000	740,000 (ii)	1,190,000	
Proposed	450,000	924,000 (iii)	1,364,000	

[Notes: (i) £532,000 includes some items which fall within other heads of claim. (ii) and (iii) In fact the total expenditure here is much larger – by about £84,000 – but the claims have been reduced to take account of items which were also included under other heads of damage, which have been agreed. I am not entirely sure, but the figure may also include some “personal choice items” which it is acknowledged should not be included]

11.53	Originally, it was thought that the Claimant’s reasonable requirements could be met by expenditure of around £690,000. Now, Mr Cumbers supports the expenditure of £1.3 millions. Somewhat breathtakingly, (the words of Mr Methuen QC with which I agree) the extension/ adaptation costs alone have increased fivefold from £190,000 to £924,000.

11.54	How did Mr Cumbers seek to justify that enormous shift of opinion? As already mentioned, he had not included many features in his original estimates, which he now considered “appropriate to include”: for example the conservatory, the ground source heat pump, the retreat bedroom, and the second carer facilities – most of which emerged for the first time in his June 2005 plans and were justified in his February 2008 report. He might also have mentioned the first floor guest bedroom, and the lift to enable Mr Pankhurst to visit the first floor. These increases were justified by the fact that his early report had not made any “allowance for having owned a property like Harvel Lodge”. I note that Mr Cumbers and Mr Lord both appreciate the significance of this. They say jointly at E365 that they “wish to defer to the court as to whether Harvel Lodge, disposed of in 1992, the Maidstone property subsequently occupied … or Mr Pankhurst’s motor home lifestyle choice should be used as the base for comparison purposes.” In spite of “deferring to the court”, Mr Cumbers has clearly used Harvel Lodge as part of his “benchmark” in attempting to justify the huge increases in size and cost, which he now claims to be reasonable. For the reasons already given, he was wrong to do so.

11.55	But there was a second reason why Mr Cumbers felt able to increase the size of the property which the Claimant reasonably needed. His original assessment had not taken account of the increased space needed for Mr Pankhurst to manoeuvre his wheelchair. As already mentioned earlier in this Judgment, Mr Pankhurst is only able to sit (except for very short periods) with his knees straight so that he sits in his wheel chair with his legs out in front parallel to the ground. Thus, he requires more room to manoeuvre himself and there have to be larger spaces alongside beds walls and furniture. To use Mr Cumbers’ term, he occupies a larger “footprint”. This, he suggests, justifies increasing the over-all size of the original generic property.

11.56	With this part of the evidence, I agree. I can understand why this was not factored in to Mr Cumber’s generic report. If the total area of 176 sq metres is accepted as a valid starting point, I agree that there has to be some increase in total area to accommodate this larger “footprint”. However, I do not accept, as Mr Cumbers suggested at one stage, that this alone justified an over-all increase of twenty-five percent. But some modest increase has to be made.

11.57	With this background in mind, I must make my findings and decide whether Archers Post, as it presented in 2004/5 was suitable for extension and adaptation; and whether, in all the circumstances, it was reasonable for Mr Pankhurst to buy it. Before doing so, however, I should (a) say a word or two about the two experts, Mr Cumbers and Mr Lord, and (b) complete the history of the development of Archers Post.

11.58	The two accommodation experts: As far as Mr Lord is concerned, I found some of his analysis, plans, measurements and summaries of the factual background to be of real assistance. But I was unable to accept much of his opinion evidence. I accept some of his comments upon Archers Post itself. Where he has suggested that some of the features of Archers Post are excessive and disproportionate, I can agree with him. But where, on the other side of that coin, he has put forward his own suggestions as to what would be sufficient or reasonable for Mr Pankhurst’s needs, his evidence is, for the most part unacceptable. I am not at all sure that Mr Lord understands the concept of full compensation within this part of the law. The difficulty may stem from the fact that much of his working time is spent in advising local authorities and other bodies upon design for disabled persons. There the criteria are very different. It appeared to me that Mr Lord’s opinion was based upon minimum requirements. His first report, for example, appeared to suggest that 15 St Welcume’s Way was suitable, whereas it has long been common ground between the parties that this was not so. His report was based upon what was adequate. He said this (E190):
“It remains my view that the present flat may not have been the ideal choice but it is of adequate size and needs only limited alteration to meet the minimum requirements for the Claimant’s present needs” (my emphasis).

He also said this (E189): 
“(Mr Cumbers) recommends that the Claimant seek a large bungalow 176 sq metres in a rural position with up to half an acre of land. I believe that this is excessive and that if relocation became necessary the Claimant’s needs could be accommodated in a bungalow providing approximately 80 sq metres on a normal plot. Should a residential carer be recommended then an additional area of 16 sq metres would be appropriate making a total of say 100 sq metres”

11.59	These are basic minimal standards indeed, and this coloured the whole of Mr Lord’s evidence. It took no account of the fact that the Defendant has grievously injured Mr Pankhurst, that proper and reasonable accommodation is called for, and that no court would countenance the provision of absolute basic minimum accommodation. I am able to accept some of Mr Lord’s comments upon the Claimant’s evidence. Insofar as he puts forward alternatives, I cannot accept his opinions.

11.60	If Mr Lord’s evidence is (as I find) much too restrictive, Mr Cumbers’ evidence is, in large part, much too lavish. Insofar as Mr Lord’s proposals do not provide for full compensation, Mr Cumbers’ proposals go far beyond it. I have reached the conclusion that Mr Cumbers has allowed himself to become seduced by Mr Pankhurst’s enthusiasm for creating a fabulous and extravagant home, which substantially exceeds his reasonable needs, and which exceeds the “benchmark” (his reasonable expectations based upon his pre-accident possessions and lifestyle). He has allowed his opinions to change in the “breathtaking” way demonstrated above. I judged that he was falling into the old pre-Woolf ways of allowing himself to be swayed by the party instructing him. Self evidently, as it seemed to me (and as I will have to find expressly later in this Judgment) his opinions were not proportionate. He did not confine himself to attempting to support reasonable and full compensation. He supported the Claimant in all things. Thus, I am faced with the unfortunate position that I have to reject large and important parts of the evidence of both experts. 

11.61	Demolition and re-building: I must also, for the sake of completeness, continue with the history of the development of the property. I have already recorded, earlier in this Judgment that, in due course, the decision was taken to demolish and rebuild, that an estimate was provided in November 2006, the building work was done and the Pankhursts moved in to Archers Post in November 2007. 

11.62	How was the decision taken to demolish and rebuild? Mr Pankhurst explained it thus (B67): 
“There were a number of problems with the property, including subsidence … So following advice from an architect, Chris McMulland (sic), we knocked down the existing property and began to rebuild from scratch.” 

11.63	As far as I can see, there is no further explanation of this decision. There is no evidence from Mr McMullon or anyone else. There is no report and no costing of alternatives. There is, however, a letter from Mr Collins, a builder, dated (enigmatically) 29th January 2008 (K237). Whether this letter was written at the time and the date typed inaccurately, or whether it was a letter written much later for evidential purposes, I do not know. In his final submissions, Mr McDermott QC stated that there had been a site visit between the Pankhursts, Mr McMullon and Mr Collins. Mr McMullon’s presence at the site meeting is not disclosed by the letter. The letter is, nevertheless, interesting for two reasons. First, it appears that the decision was taken somewhat lightly, without any detailed examination of the alternatives, or the costs implications. Insofar as Mr McMullon and / or Mr Collins did advise the Claimant to rebuild from scratch, there is no evidence as to what that advice was based upon except the need to move or alter “most of the internal and external walls anyway”, the “extra space needed for Mr Pankhurst and his carers”, the need for “major reinstatement” of the existing floors, ceilings and roof structures, and “certain structural aspects”, whatever those might have been (K237). Secondly, it is confirmation of the fact that, even if there had been no subsidence problem, the plan was not to build extensions onto the existing structure, but to do a virtual rebuilding in any event. If there had been no demolition, very little of the original house was to be retained. The proposed adaptations would have involved enlarging virtually every room, expanding in all directions, leaving only a small part of the original house intact.

11.64	As to the decision to demolish, it is clear that circumstances had not changed in any way between the date of purchase and the time when the decision to demolish was taken. There had been no new information, no further investigation, and no further survey. I also note how the Claimant’s evidence changed for no good reason. Whereas, when justifying his decision to buy the property he was able to include in his witness statement that his surveyor had said that the property was “structurally sound”, his opinion changed when the decision to demolish was made. Now, as noted above, he said, “There were a number of problems with the property, including subsidence … so … we knocked down the existing property and began to rebuild from scratch.”  If it was reasonable to buy the property because it was “structurally sound”, why was it reasonable to demolish it some months later, with no change of circumstance in between? The only change in circumstance appears to have been the Claimant’s professed attitude to the subsidence problem. When he wanted to buy, he wanted to ignore the subsidence problem. When he wanted to build, he wanted to start from scratch. Whether or not Mr Pankhurst had decided from the outset that he would demolish and rebuild, in the hope and belief that the Defendant would be required to pay, I do not know. Whatever the position, the decision was taken, and the property was completely demolished and a new Archers Post was built in its stead.

11.65	So what of the decision, judged at June 2005, to purchase? In my judgment, the decision to buy this property was patently imprudent and unreasonable by any standards. I make all allowances for Mr Pankhurst’s position, his need to move from unsuitable accommodation, and that his actions are not to be judged, as has been said before “in nice scales”. At the time of sale, the Claimant had not resolved the subsidence issue. He closed his eyes to the difficulties and was, as I find, determined to secure the property at all cost. He has said, at various points: that his valuer valued the property at £425,000 to £450,000; that his surveyor had told him that the building was structurally sound; and that he acted on the advice of Mr Cumbers in purchasing the property. These are all at best half-truths. The property was worth £425,000 to £450,000, only if structurally sound. The structural engineer may have told him (on the telephone) that there had been no recent movement, but there were reservations and qualifications, including the need to refer the matter back to Peter Back and Associates on the question of underpinning (see K121). Mr Cumbers did indeed write to the Claimant’s solicitors in terms that the property should be bought, but he was also repeatedly insistent that the subsidence problem had to be fully investigated first, and solved in advance of purchase. Alternatively, a reduction in purchase price should be negotiated. He also advised of the need to get further help from Peter Back. As far as I am aware, Mr Cumbers had given the Claimant no advice at-all between 26th January 2005 and exchange of contracts. On that date (26.01.05), Mr Cumbers had written a letter, the contents of which are set out at E55. That letter voiced his concern as to the state of the property, the need to know the cost of repairs and the need for undertakings as to stability of the property thereafter “before agreeing to the asking price”.

11.66	I am also satisfied that the decision to buy Archers Post had been taken well in advance of Mr Davies’ structural survey. Mr Pankhurst was not genuinely interested in what it might contain. As we know, the structural report, which arrived shortly after exchange, would have cautioned any moderately prudent person to pause and reflect. But, Mr Pankhurst was determined to acquire Archers Post at almost any cost. He was prepared to close his mind to the risks of subsidence. Whether or not he had had an oral preview of the contents of the report prior to exchange, Mr Pankhurst was not going to be deterred. He had put the Week Street properties on the market some months earlier, and he had made up his mind. 

11.67	The bald assertion has been made repeatedly that the Claimant relied upon the good advice of Mr Cumbers when he decided (a) to sell the investment properties and (b) to buy Archers Post. Nowhere has it been acknowledged by the Claimant (or on his behalf) that this was other than wholehearted support by Mr Cumbers. However, at no time prior to exchange of contracts (or at any time thereafter) did Mr Cumbers state without qualification or reservation that Archers Post was suitable. I have referred already to the reservations in his letter of 17th December (E49). In his letter dated 20th June 2005 (K128) addressed to the Claimant and his wife he said:
“Thank you for the copy of the Structural Engineer’s Report by David Davies for the Alan Baxter Partnership. Please may I draw your attention to Mr Davies’s conclusions as appearing on pages 4 and 5 of his letter. Please refer this directly to Gullands to seek PBA’s comment and advice”.

11.68	In his further letter to the Claimant and his wife dated 4th July 2005 (K124) he said:
“I am wondering whether you have had a chance yet to revert to Gullands and whether they in turn have reverted to the vendor’s solicitors in respect of David Davies’s Report. If PBA are in agreement that underpinning is appropriate then clearly this is something that the insurers should take onboard”.

11.69	Mr Cumbers wrote those two letters without knowing that the Claimant had exchanged contracts and had completed the purchase on 4th July 2005.  It is plain that he was voicing concern that the issue of subsidence had not been resolved either as to the nature of the problem or who was going to pay for it.

11.70	It is just not true to say that the Claimant sought and relied on Mr Cumbers’ advice. If he had done so, he would not have paid the full asking price, and he would have obtained assurances about the condition of the property. He would not have purchased the property when he did. 

11.71	It is entirely clear that, at the time of purchase, (i) no decision had been made as to what should be done about the subsidence problem (ii) no assurances had been received from vendors or insurers about the cost of remedying the subsidence problem (iii) there was no estimate of what it would cost to underpin and then to extend and adapt and (iv) there was no estimate as to what the cost would be of demolishing and building it from scratch.

11.72	These and other issues (upon which, as detailed above, Mr Pankhurst had been repeatedly advised) should have been resolved before exchange of contracts. In my judgment, it was patently not reasonable to buy the property without resolving those issues. Buying the property at that time involved taking a significant risk, which no reasonably prudent person, spending his own money, would have taken. As it turned out, those risks manifested themselves. 

11.73	Instead, acting (as I find) against the advice which he had received, and, it seems, without any input from the solicitors, he imprudently (as I also find) sold his investment properties and immediately invested the proceeds in Archers Post. He did not wait the few days to consider the contents of the structural engineers report, preferring to speak with the engineer on the phone and (in all likelihood) being selective about processing the information which he was given. He acted with unnecessary haste, exchanging contracts at the first opportunity, as soon as he had the Week Street proceeds in his hands. He did not seek advice from his solicitors or Mr Cumbers at that point, almost certainly because he did not want to hear what he knew they would say. If he did seek advice from his solicitors, I have not heard about it. He did not even tell Mr Cumbers at the time of the June 2005 site visit, that he had already secured the property. The slightest modicum of prudence would have prevented any reasonable man (even in the pressed circumstances in which Mr Pankhurst found himself) from paying the full asking price for a property, which, at the very least, required substantial and undefined repairs, the costs of which were not known. I say “at the very least” because there was also the known possibility that there may be no alternative to demolition and re-building.

11.74	Nor am I satisfied that Mr and Mrs Pankhurst looked at any other properties, at least not with any genuine intent; and certainly not after they had first seen Archers Post. There seems to be an assumption inherent in Mr McDermott’s submissions that, if Mr Pankhurst says something, it must be so, and the court must accept it at face value. However, with so much of Mr Pankhurst’s evidence, I regret to say, there is a self-serving element, and a complete lack of any detail or supporting material. For example: 
“we looked at about four other properties … there was one that was so narrow I could not even get down the hallway because it was so narrow” (B8). (my emphasis). 

There is no detail given of any of those properties. And later:
“I looked at other properties which seemed adequate but on closer inspection would have meant significant alterations and remained a compromise in one way or another. Widening of door frames, hallways and thus reducing living spaces” (B112). 

11.75	No further detail. But, in any event, where is the difference between this and Archers Post? What of the “significant alterations” there? Archers Post, it seems, could have all living spaces increased by re-building or (if the original had been retained) the demolition of 75 / 80 per cent of internal and external walls to create large rooms. Why not these other properties? These are generalisations, but no evidence has been presented by Mr Pankhurst as to where these properties were. And there is only his general say so that they were unsuitable.

11.76	When Mr Pankhurst said that the decision to purchase Archers Post had been a hard one, Mr Methuen suggested to him that it was not a hard decision at all. It was put that from the moment Archers Post came onto the market, he had closed his mind to all other options. The Claimant’s response was, “Purely because Archers Post was a miracle come true.” That answer, it seems to me, explains much. From the very outset, the Claimant set his heart on this property in its splendid location, and nothing else would do. If that involved ignoring the difficulties, closing his mind to the problems, that is what he was going to do.

11.77	However, there is another aspect, to which I have already made oblique reference. Was Archers Post inherently a suitable property in the first place? There is no doubt that it was in a suitable – indeed an ideal – location. For the purposes of this part of my Judgment, I am prepared to accept that, when contracts were exchanged, there was at least a provisional intention to try and extend and adapt, rather than demolish and rebuild. 

11.78	In this type of case, as Mr Cumbers had advised in his first report, one is looking to identify a property, usually a bungalow with all accommodation on one level, which is “suitable for adaptation and extension”. This is the ideal. It is axiomatic that the adaptation would include such things as the widening of doors, the modifying of bathrooms, fitting of ramps and so on. It may also encompass knocking two rooms together, by removal of an internal wall to make one single room of sufficient size to, say, accommodate the main bedroom, which will need to have wheelchair and hoist access, as well as having the space to house the equipment which the injured Claimant may need. The extension will encompass building additional rooms to the rear or side of the existing structure to provide the extra room or rooms needed. It may be appropriate to build on a physiotherapy room or carer accommodation. It would certainly not be usual for a bungalow to be identified as suitable for adaptation and extension only if three quarters of it had to be removed, and virtually every room in the property increased in size. In the normal case, most of the existing property (subject to door widening and the like) would be retained; and the extra accommodation would be provided by the building of one or more extensions. That, it seems to me, is what Mr Cumbers had in mind when he wrote his first report. 

11.79	I pause to reflect. There will be cases where this may not be so. One can envisage a Claimant, who has a reasonable wish to remain in a particular area of the country. A search for a suitable bungalow may be made. All possible properties may be viewed. All local Estate Agents may be informed. It may be that, after several months, no property suitable for adaptation and extension has come onto the market. The search may be widened. Although more expensive, it may be necessary to look for building land, and build a new home from scratch. That could well be thought reasonable. But, what if there is no available building plot within the area where the Claimant is reasonably searching? In those circumstances, it may become reasonable to look for a property which requires more extensive adaptation; the removal of more of the interior, and the outward movement of the outer structures of the building. I make the point. Different circumstances may arise which make decisions reasonable, where, at first blush, they would seem not to be so.

11.80	However, the first search is for a property which can be extended and adapted suitably at proportionate cost. Reading Mr Pankhurst’s first witness statement, it appeared that Archers Post might (subject to the subsidence being resolved) fit this bill. I referred to this part of his evidence above. This is to be found at B13 and B19. The property provided the “living space we needed” and after necessary widening of the corridors “the rooms are of sufficient size that they will still be an appropriate size for me”. It appeared that, at that stage Mr Cumbers agreed with this because his letter of December 17th 2004 expressly stated that the property was suitable for extension and adaptation, at much the same cost as forecast in his generic report, albeit that the balance between purchase price and building costs would change.

11.81	It was not until June 2005 that this all changed. It was a radical change. As I have already described, the adaptation and extension plans (as opposed to the demolition and rebuilding plans) provided for a removal of about three quarters of the internal and external walls. This is illustrated by looking at the plan on E340 in the way which I have described above. The plan was (assuming no complete rebuilding) what I have called “virtual rebuilding”. So much for the assertion that the property provided the “living space we needed” and the “rooms are of sufficient size for me”. Every room in the house, almost without exception, was to be rebuilt and increased in size. Only the small room between the Claimant’s bedroom and the living room (the hobbies room I think) has remained the same size. The Claimant’s bathroom and carer entrance are new extensions, as are the sun lounge, entrance hall and physiotherapy room. The dining room, kitchen, and living room have all had their sizes hugely increased by outward expansion; also the spare room (the retreat bedroom I think) opposite the Claimant’s bedroom. Even without the demolition and rebuilding, little would have been left of the original property. (I may have got the hobbies room and the retreat bedroom the wrong way round; the various plans do not label these rooms consistently, and my memory from my visit has failed as to this.)

11.82	I note this. If, as had been originally envisaged, the plan had been to extend and adapt in the way seemingly suggested at the outset, retaining most of the original interior, Archers Post may have been deemed suitable. (That assumes, of course, that the subsidence problem had been resolved.) But, once it was proposed to completely rebuild (even almost completely rebuild without prior demolition) the cost was bound to become disproportionate, and Archers Post could not be considered “suitable for extension and adaptation” in any true sense of those words.

11.83	In reaching this conclusion, I have not lost sight of the submissions advanced by Mr McDermott QC in support of the Claimant’s case that the purchase was a reasonable one. It is interesting to note that the first three are all about location: (i) that the house is next door to friends; (ii) in a village where the Claimant is accepted and feels comfortable, particularly at the local public house. And; (iii) that Wittersham is in a rural location whilst being conveniently positioned for shops and other services. These are, in fact, all part and parcel of one and the same argument. It is an entirely valid argument and one with which I wholly agree. If location was the only consideration, Archers Post would pass the test with flying colours. 

11.84	The third, fourth, and fifth submissions may also be taken together. They are effectively the same argument, repeated in a slightly different context. The fourth submission (taken from the Claimant’s closing written submissions) was:
“Archers Post had the space requirement to suit (the Claimant’s) needs.  When asked his professional view regarding the adequacy of space at Archers Post during examination in chief Mr Cumbers said, “suits him very well; we agonised very hard – looked at spaces very closely.  We increased some, had to make had (sic) wheelchair manoeuvrability he needed; that provides precisely what he needs for his wheelchair manoeuvrability – no more, no less”.

“Fifthly Archers Post has the space to accommodate carers without the Claimant and the carers living on top of each other, thus retaining some privacy.”

“Sixthly, the Claimant’s architect, Stephen Cumbers, visited Archers Post on 15 December 2004 and recommended that the property was absolutely ideal in terms of location and was suitable for extension and adaptation to meet the Claimant’s likely long-term accommodation needs. Mr Cumbers’ advice was that ‘…It seems to me that the vendor may not wish to be bound by a further structural survey or the cost of the greater repairs to the structure that I suspect may be required. Nevertheless I am of the opinion that Mr and Mrs Pankhurst will not find a more suitably located property, and I would urge you to liaise with the vendor’s solicitor to secure the same’ The Claimant reasonably relied upon the advice from this expert.”  

These submissions amount to the same thing. Insofar as location was mentioned (again), no one would disagree. But the thrust of the submission is that Archers Post was suitable for extension and adaptation, that it had the necessary “space requirement” to achieve the long-term accommodation needs of the Claimant, including space for carers. (This assumes, of course, that the space requirements were those included in the June 2005 plans and not in the first [generic] report.) With the greatest respect to counsel’s argument, it is patently obvious that Archers Post did not have the space requirement, unless one means that it had space into which to expand. Only after massive expenditure, with total rebuilding, does it have the necessary space to meet the long-term accommodation needs and carer space. If one takes the charitable view that, at the time of purchase, there was an intention to “extend and adapt”, the space requirement could still only be achieved by a massive adaptation, a virtual rebuilding. Any property will have the space to accommodate carers, if enough money is spent and if huge modifications are made. Archers Post, at the date of purchase, was no more suited for this purpose than any other property. Mr Pankhurst could have bought any one of thousands of houses and created space for carers, by adapting, extending and rebuilding.

11.85	If Archers Post was a suitable property, it would be difficult to imagine what property might not have been suitable. Any house, standing in its own grounds, whatever its existing accommodation, would be suitable by this yardstick. The only consideration would be ground space to the sides and rear to permit enlargement. I use the word “enlargement” to distinguish between “adaptation and extension” and what happened at Archers Post. Any such property could be purchased, and sufficient money injected so as to completely remodel or rebuild. By this yardstick, the only unsuitable house would be a terraced house, or a house so hemmed in that there could be no outwards expansion. Any house with space at the sides or rear could be adapted, subject only (a) to planning permission and (b) a limitless supply of money.

11.86	It follows that I propose to base my award under this heading on a notional (or generic) property, which would have catered for the Claimant’s reasonable needs, having regard to the “benchmark”, discussed earlier. In my judgment, the appropriate starting point is Mr Cumbers’ original generic report, in which he recommended the purchase of a suitable bungalow with a total area or about 176 m sq for £500,000 with expenditure of around £190,000 achieving some £20,000 of betterment. I make that my starting point for two reasons. First, I have no acceptable alternative from Mr Lord. Secondly, it seems to me that this was a reasonable assessment by a qualified expert at a time when he had not allowed himself to be caught up in the Pankhurst enthusiasm, and before he had allowed himself to be swayed by the “Harvel Lodge” benchmark argument. However, I accept that those figures do not include the additional space necessary for Mr Pankhurst’s larger wheelchair turning circle. Also, the figures were based upon building costs two or so years earlier than at the time of building, and some allowance has to be made for inflation. These affect the generic building costs, which I propose to assess at £235,000. That is my attempt, by adopting Mr Cumbers’ approach, to allow for a property of sufficient size to allow for the Claimant’s larger “footprint”, whilst at the same time making an adjustment for the falling value of money. It is based upon an increase of approximately 15% in the size of the original generic property. That is how I have reached that sum.

11.87	Thus, I hold that a reasonable property would have cost £500,000, plus £235,000, with a betterment element of £20,000. I propose to assume that it could and should have been purchased and the building completed at the same time as was in fact the case with Archers Post. This has the added benefit of enabling me to use actual times rather than to make difficult adjustments for notional building and removal dates.

11.88	In reaching that conclusion, I can, in effect cross check by considering how I would have approached the award, if it had been necessary to reach stage two of my task; - if I had held that Archers Post was a suitable purchase, and then disallowed those parts of the rebuilding, which I found to be disproportionate (set against the proper benchmark). I would have disallowed large parts of the claim on the basis that the benchmark had been exceeded. Without descending to too much detail, there would have been no need to expand the living room, dining room and kitchen or to build on a large new sun lounge. The lift would have been disallowed, and the carers’ suite could have been built into the existing first floor space, with no requirement for a second entrance, second staircase or guest bedroom. There are other smaller examples, and it is not necessary to run through them all. One or two of these examples will suffice. In his report of November 2007, Mr Lord had commented upon what he considered to be excessive expectations and expenditure. Mr Pankhurst made comments upon this report in his third witness statement at B78 to B121. It was at this moment that the “Harvel Lodge argument” was first fully deployed. Commenting upon the large hearth and fireplace, Mr Pankhurst said that, in Harvel Lodge “I had a log fire every evening during the winter months … it is something I always enjoyed and still gives me comfort and visual effect” (B101). “I designed the bedroom to be large in area for a number of reasons, not just because I previously had a lot of space at Harvel Lodge … “(B102). The gates in to Archers Post were justified partly because “when I lived in Harvel Lodge, I had gates which were over 12 foot (sic) wide” (B104). He was entitled to top of the range fixtures and fittings because “Harvel Lodge was built to a very high standard. All the fittings were brass … it was eloquent (elegant?) and refined … the stairs were oak and had a very ornate balustrade. The fireplace was Kentish Ragstone” (B106). The size of the garden at Archers Post was justified by reference to Harvel Lodge (B106). The patio is a very good case in point. Photographs of Archers Post illustrate graphically the extensive and impressive patio area. This was criticised by Mr Lord as being in excess of what might “normally be considered appropriate”. But, “the patio at Archers Post is nowhere near the size of the patio area at Harvel Lodge” (B105).

11.89	The lift (although not justified by the “Harvel Lodge argument”) is also a case in point. In his first report, Mr Cumbers had recommended the purchase of a bungalow with accommodation on one level. That is a standard recommendation in cases of this sort. The reason is obvious. All the Claimant’s reasonable needs were served by the ground floor accommodation. The cost of installing a lift to the first floor cannot be said to have been adaptation or extension, necessitated by the injury. As to the huge general expansion of space, I was able to see Mr Pankhurst moving freely around the house in his wheelchair, with his legs projecting in the way in which I have described. It was clear that even his enlarged “footprint” could be doubled and possibly re-doubled before there would be any difficulties of space in any of the main areas of the house.

11.90	I may also note that the original estimate of Mr Froud has been exceeded substantially. I agree with Mr Methuen QC that the costs spiralled out of control. There was no competitive tendering. No quantity surveyor was employed. The Claimant simply had a vision as to what he wanted to achieve in terms of quality and taste. He himself controlled the building, and added items as the building works progressed. He had also had a great deal of input into the plans in the first place (see, for example B67-68 paragraphs 128, 130 and 132). 

11.91	Even if I had felt able to find that Archers Post was suitable, I would have disallowed many of the building costs of Archers Post. It is interesting to note, in this context, that, in final submissions Mr McDermott QC commented upon the size of the “betterment” element in this case, and that this was by far the largest betterment sum which he or junior counsel had ever encountered. The sum conceded by way of betterment was large indeed, on the basis of the claim as formulated. It would also have been by far the largest element of betterment that I myself have ever encountered. That submission was intended to persuade me that the building costs were reasonable because the Defendant received the benefit of this huge betterment assessment. However, the argument is clearly self-defeating. The more that is spent, the higher the betterment element. But one only needs to examine the figures to appreciate that there is a betterment return of only about 25 percent of the building costs. That the betterment element is so large (and uniquely so) only goes to demonstrate that this rebuilding exercise was disproportionately large and that Archers Post was inherently unsuitable in the first place.

11.92	A further short matter: After the evidence had been completed in June last year, I called for further argument upon a discrete point of law. In the event, the case was re-listed for further oral submissions. I also received further written submissions. That accounts, in part, for the delay in delivering this Judgment. The discrete point was this. It had occurred to me that, once the decision had been taken to demolish and rebuild Archers Post, the reconstruction costs could be treated either (i) wholly as building and adaptation costs (so as to be recoverable in full net of betterment) or (ii) in part as a cost of acquiring the property (to be added to the £450,000) and treated as capital outlay. In the latter case, damages would be assessed at 2.5% of the capital sum, to which the appropriate multiplier would be applied. In the event, it has not been necessary to decide that point, as I have decided that I have to make an award on a conventional basis, awarding damages for a notional property, as set out above.

11.93	The award for accommodation; loss to date: The Claimant is entitled, subject to appropriate credits, to recover the rent, council tax and other expenses associated with his occupation of 15 St Welcumes Way and 10 Westmoreland Close. Excluding credit, the claims are pleaded at £6,334 and £19,574 respectively (A372-374). I allow those sums. Rather than deal with the credits at this stage, I will adopt Mr Methuen’s suggested approach and deduct the credits at the end.

•	For the generic property, I allow £500,000 plus the betterment of £20,000. 2.5% of £520,000 by 3.06 years: £39,780.

•	Cost of adaptations. £235,000 less £20,000; £215,000. 

•	The cost of conveyancing, stamp duty, removal and so on is recoverable. This is pleaded at £17,025 (A375). That sum has to be increased to take account of the higher stamp duty on a house costing the extra £50,000. This is conceded by the Defendant and the proper figure is £18,525.

•	Running costs and other miscellaneous expenditure are pleaded at £8,806 (A378). However, the smaller generic property would be less expensive to run and maintain. I allow £5,000.

•	Gardening costs are pleaded at the staggering sum of £23,423, but these figures include a sum of £7,697 for landscaping, as well as the cost of equipment including a lawn mower and numerous attachments. Archers Post has an enormous garden. The plans do not give an accurate size, and I do not think I was ever given one. To my eye, the garden size is in the region of two acres, perhaps a little smaller. Whatever its size, it is much larger than would be reasonably required for a house fitting the benchmark. It is certainly much more than double the size which might have been appropriate. Of course, if Archers Post had been otherwise “suitable” and had come with this size of garden, the Defendant could not have objected to paying reasonable maintenance costs. I disallow the landscaping. I reduce the large gardening bills, and I award the sum of £6,000 for gardening for this period. That, of course takes account of a smaller generic property. I allow something for the set-up costs of buying a wheelbarrow and the like.

•	Against these awards, various credits have to be given. It is agreed between the parties that the Claimant should give credit on a Roberts v Johnstone basis in relation to his capital no longer tied up in his motor home. The agreed sum is £5,738.

•	There is further agreement that the Claimant should give credit for the savings in not having to run the mobile home. The Claimant contends that the annual cost at the date of trial is £6,575. The Defendant’s figure is £14,860. I heard evidence on this. I did not accept that the Pankhursts stayed on the cheapest campsites. Mrs Pankhurst attempted to resile from the campsite charges set out in her witness statement. I note the Defendant’s submission that the Claimant’s figures do not take into account the cost of transporting the motor home across any stretch of water. There was nothing extra in respect of the longer trips to more remote destinations, which were apparently planned. There was nothing for any emergency. I assess these costs, in today’s money at £10,000 per annum. The Claimant must give credit of £50,600, namely £10,000 by 5.06 years. Therefore total credit claimed £50,600 + £5,738 = £56,338.

Thus the claim for past accommodation is as follows:
Rent etc St Welcumes way	6,334	
Rent etc Westmoreland Close	19,574	
Generic property (£215,000 + £39,780)	254,780	
Removal costs, stamp duty etc	18,525	
Running costs to date	5,000	
Gardening costs	6,000	
Less credits of	             (56,338)	
Award	253,875	

11.94	The award for accommodation; future loss. The multiplier is 14.76. The Roberts v Johnstone calculation is as follows. £520,000 by 2.5% x 14.76; award; £191,880

11.95	Future running costs are set out in the Claimant’s schedule at A380. This part of the schedule appears to be designed to confuse, but I think and hope that I have got to the bottom of it. Different items have different multipliers and credit items are scattered amongst debit items. I will extract those items which represent annual expenditure and require a full multiplier. It appears to plead the following annual items of expenditure:

Running costs (£1260 – £315)	945	
Heating system maintenance	450	
Fire extinguisher service contract	250	
Smoke alarm batteries	16	
Wear and tear decorations floors etc	370	
Insurance 	1,022	
Council tax	1,951	
Water and waste water bills	410	
Window cleaning	600	
Total	6014	

•	I propose to deal with these items by reducing the cost by 40% to reflect the smaller generic property. I allow £6,014 less 40%: £3,608. Multiplier 14.76. Award: £53,254

•	Other items include the burglar alarm pleaded at a total of £852, which is accepted by the Defendant.

•	Maintenance at a cost of £5,000 (also accepted by the Defendant) is said to be required every 5 years. The multiplier is thus 2.36 producing an award of £11,800.

•	I deal with gardening separately. This is a much smaller garden. I note the Defendant’s submissions about this and agree that the correct annual sum should be £825. With a 14.76 multiplier the award is £12,177.

•	The various gardening items are pleaded. I award £5,000 as conceded by the Defendant in its final submissions.

•	Against these sums, the Claimant must give credit for the capital value of the motor home to the age of 70. This is calculated as follows: £75,000 x 2.5% x 13.45 = £25,219.

•	It is also agreed that there is a saving on running costs of the motor home. I have assessed this at £10,000 per annum. The credit to be given is £10,000 x 13.45: £134,500. 

•	There must also be a credit in respect of the house, which the Claimant says he would have bought at age 70. He gives credit for 2.5% of £300,000; £7,500 p.a. Also there are running costs to be taken into account. This is only for the period post age 70. I calculate this “credit” as £7,500 + £455 = £7,955 x 1.31 = £10,421.

Thus I award, in respect of the future accommodation claim the following:
Roberts v Johnstone element	191,800	
Running costs etc	53,254	
Alarm	852	
Maintenance	11,800	
Gardening	12,177	
Garden miscellaneous items	5,000	
Capital value motor home	(25,219)	
Motor home running expenses	(134,500)	
House post age 70	(10,421)	
Total award	£104,743	

Section 12: Holidays (Over winter trips)

12.1	The claim to date is for £26,765, that is to say £18,066 in respect of adaptation costs to the motor home (agreed by the Defendant) plus a further £8,699 for actual holiday expenditure (not agreed). The issue here is whether, but for the accident, the Claimant would have spent this sum in any event. I agree with Mr McDermott that this is not a valid objection, bearing in mind that the Claimant was, prior to the accident, travelling in his motor home and not incurring costs of the sort claimed. I award the full £26,765.

12.2	The holiday claim for the future is put in the following way. Because Mr and Mrs Pankhurst used to spend six months abroad each year, full compensation requires that they should be enabled to spend long periods abroad in the future. The claim is for four months a year (17 weeks) and is for an annual sum of approximately £51,500. Mr and Mrs Pankhurst would travel overland, taking two carers with them in the adapted Chrysler Voyager, provided by the Defendant. They would stay at hotels en route, the cost of which forms part of the claim. The villa accommodation would cost, so it is claimed, £10,000 for the 17 weeks. Carers would be flown out on a change over weekend, every two weeks. There would be two teams of six carers (as intended at home in Wittersham). Every other weekend, one team would fly out to the holiday destination, and the other team would fly back. There would be a switch two weeks later. Over the winter period, every one of the twelve carers would be required to spend half her time in Portugal (or that year’s holiday destination) and half her time at home. When they were abroad, the carers would work the same shift system as in Wittersham. According to the schedule, this would involve a total of 116 return flights each year. Every alternate weekend, six carers would fly one way, and six would fly the other. The cost of these air journeys alone would amount to £28,000 a year. The Claimant also claims the cost of accommodation and subsistence for the carers. Additionally, he claims for UK hotel breaks taking four carers on each trip.

12.3	Thus, with a multiplier of 14.76, the claim is for more than £800,000. That excludes the carer’s wages. Those are included in the care claim and will be paid out of the annual periodical payment of £260,000.
The main parts of the claim can be summarised:

Item	Annual cost	
Villa rental 122 days	10,000	
Hotel stays outward and inward (4 people)	1,920	
Carer flights (116 return flights)	28,000	
Haulage fees	840	
Insurance 	848	
Carer subsistence	8,420	
UK hotel breaks	2,000	
Other sundries		
Approx annual total, say	£51,500	

12.4	The Defendant resists most of this claim on every front. It is unreasonable and excessive. It exceeds the limits of the benchmark. It is also impracticable. The Claimant and his case manager will not be able to find and engage carers in sufficient numbers who would be prepared to accept such a schedule. The Claimant will not want to spend so much time abroad, particularly as time moves on. Although he would plan to take a great deal of equipment with him, he will be a long way short of replicating the equipment which he has (and requires) in Wittersham. There are likely to be difficulties in arranging for his regular physiotherapy, when he is abroad. Also, the sheer disruption of the journeys, with its attendant difficulties, will be a deterrent. As time goes on, he will increasingly want to stay at home, in the comfort and security of the environment which has been created there. The actual costings are also said to be excessive. Accommodation can, as this year, be more economically rented. Much cheaper airfares can be obtained. And so on. 

12.5	But the main attacks are (a) that the claim is disproportionate and excessive, and (b) that there is no possibility that such a complicated scheme could be made to work – it is just fanciful to think that 12 carers could be found who would be prepared to accept employment terms on such a basis. I need to consider these submissions.

12.6	Earlier in this Judgment, I referred briefly to the care package for which the Defendant has agreed to pay. It involves the deployment of 12 carers in two teams, each team working two weeks on and two weeks off. They are to be provided by the sixth agency to be tried by the Pankhursts. This agency, Total Community Care Ltd (TCC) is owned and managed by Mr Chris Freestone, who gave evidence before me. His witness statements are at B158 to 162 and B231 to 247. The intention is that the agency will employ the carers and provide them to the Pankhursts, who will pay fees. James Pankhurst will not directly employ any of the carers. Mr Freestone intends to supply carers to meet the care package – ie a total of twelve carers. When Mr Freestone gave evidence, he readily agreed that, unless and until he has a pool of at least nine carers, the Claimant will be unable to spend the full £260,000 available to him. At the time of trial, although there had been recruitment drives, and Mr Freestone’s agency had been instructed since the move to Archers Post, there were only two carers working for the Claimant. Mr Freestone acknowledged that there had been “recruitment and retention problems”. 

12.7	I can go back a little earlier to June 2007, when the Pankhursts were still living at Westmorlands Close. At that time, space dictated that there was a limit to the number of carers who could be employed. It was in June 2007 that Susan Pankhurst made her first witness statement. She was being assisted by only one commercially provided carer – Laura, provided by a previously used agency. There had previously been a second carer – also called Laura – but she lasted only a short time. By March 2008 (when Mrs Pankhurst made her second statement), both Lauras had left. By this time, they were in Archers Post. For a time, Mrs Pankhurst managed with no help.

12.8	It was in late 2007 (more or less as they took up residence in Archers Post) that the Pankhursts gave notice to the agency, which they were then using, and started to employ TCC. There had been a number of unsuccessful placements. Marissa, who came to replace Laura, lasted about one month (B132). Jessica lasted a few days only (B133). Joanna started in December 2007 (B133). Alison did not last, and nor did Jessica (B133). Five people were offered jobs around Christmas 2007 (from 10 interviews). Only one of them (Lorna) stayed on; the others either failed to attend or gave up after a short time. At the time of the statement (27th March 2008) there were five carers, four of whom were newly appointed; Joanna, Lorna, Gemma, Charmaine, and Nicola. Joanna, who had been employed seemingly satisfactorily for three months, left a few days later. By June 2008, only two (Lorna and Gemma) remained. Thus, although TCC and the Pankhursts have been actively recruiting since the move to Archers Post, at the time of trial there were still only two carers to help Mrs Pankhurst. 

12.9	The first recruitment exercise organised by Mr Freestone took place in October 2007. Ten carers were interviewed. Six were offered jobs. Five accepted. Lorna, who started in January 2008, was a product of this exercise. She is the only one of the ten interviewees who is in post. The second recruitment drive was initiated in January 2008. Eight potential carers were interviewed. Four were offered jobs. All four accepted. Gemma, who started work in March 2008, is the sole survivor of this exercise. A further recruitment exercise was conducted just before the trial, and further job offers were made, although no one had taken up a position by the time of the trial.

12.10	In my judgment, it is fanciful to think that there is any real possibility that the intended care package will ever be achieved. A number of observations may be made. First, Mr Pankhurst is insistent that he will only have female carers. Secondly, it is a condition of employment that anyone who is to be employed will undertake to participate in the winter migration to the sun, travelling by plane, in one direction or the other every alternate weekend, and leaving her own family behind. On arrival in Portugal (or wherever the holiday has been booked), the carer has to work looking after Mr Pankhurst following the shift pattern already described. Leaving aside the travel, any successful applicant has to be able to commute to and from work in Wittersham, so cannot live too far away. There will be a shift system requiring overnight working as well as daytimes. It goes almost without saying that a mother with a young family would be unable to take up the post, involving, as it does, the winter travel. The job is also, as I was able to see for myself, not the most attractive. Mr Pankhurst is a demanding man. That is not a criticism. But there is a constant level of instruction and demand, which he makes of the carer, minute by minute. This was apparent when he was sitting in court, with Gemma alongside him. It was also apparent when I visited Archers Post. I can understand, I regret to say, why a carer would find the job difficult and, I fear, also in some ways unrewarding. Mr Freestone’s agency is in its infancy and he has no experience of putting together a care package of this sort, in a relatively remote part of the country. I have grave doubts as to the size of team that can ever be recruited. As people are taken on, others will drop out. Experience already shows that the prospects of finding suitable carers and retaining them are small. I am entirely satisfied that there is no prospect whatsoever of securing the number of carers to cover the European holidays in accordance with the blueprint put forward on behalf of the Claimant.

12.11	I also make the following findings. I am satisfied, having heard the evidence about airfares and other costs, that the holiday costs have been inflated to some extent; and I would reduce the amount of the claim on that account alone. I do not understand why accommodation will cost £10,000 each year when apparently “suitable” accommodation has been secured for the current winter for a lower sum.

12.12	I am also satisfied that the claim is excessive per se, having regard to the “benchmark”. 

12.13	There are other matters to be taken into account. Whereas I do not doubt the Pankhursts’ present intentions to take these holidays, and to do so for an indefinite period, I am satisfied that, as time goes on, and reality takes hold, the trips would, in any event, become shorter and less frequent. It will be impossible to replicate as comfortable and secure an environment at a hired location abroad as has been achieved at Wittersham. The accommodation (purpose built at Archers’ Post) to cater for the Claimant’s every need, can never be as good. The volume of equipment, aids, and appliances will be significantly less. One might ask the question. Why, if the accommodation and the equipment are so necessary, is it possible for Mr Pankhurst to quit the property for one third of the year, and manage with second best? As time goes on, and as both Mr and Mrs Pankhurst get older, the attraction of uprooting for long periods, making a logistically difficult exodus to the south, and managing with (as it would be) skeletal care staff and inferior accommodation and equipment, will diminish.

12.14	In the shorter term, I believe that the Pankhursts will visit Europe for longish periods, but, in reality, they will take a skeletal care team, and much of the burden will fall on Mrs Pankhurst. The claim for holidays is excessive and disproportionate. The proposed scheme is impracticable. Costs of airfares and other expenses are higher than are reasonable (I do not propose to rehearse the evidence about current air ticket prices). Even if the scheme were to be operated, it would be with fewer carers, fewer journeys and lower carer subsistence costs. And, in any event, as time goes on, the likelihood is that the holidays will be taken less and less frequently. 

12.15	How then should I approach this head of claim? There is no real assistance in the figures, except to provide me with some sort of idea of costs on the grand scale. I could devise, in my own mind, an alternative more modest package, trying to find a multiplicand to which a multiplier would be applied. I could adjust the figures. I could try to find a modified multiplier to reflect the likelihood that holidays will become less frequent as time goes on. I could apply different multiplicands for different periods. It is clear to me that in the early years (when they are more likely to take the winter break abroad) they will do so with very few care helpers, given the failure of recruitment to date. However, in view of the many uncertainties, I reject the multiplier and multiplicand approach. Once again, a broad brush is needed, and I must sit back and look at the over-all picture, taking a broad view of what is reasonable (with my eye on the “benchmark”), what is achievable, and what is likely to happen. I have to build in discounts for the vicissitudes of life. What will happen if Mr Pankhurst is taken ill and needs treatment just before departure? What will happen if, in a particular year, there is an insufficiency of carers to accompany him? And so on.

12.16	In my judgment, the Defendant is correct in submitting that: (a) the Claimant is unlikely to spend time abroad every winter, and that a full multiplier and multiplicand approach is therefore inappropriate; (b) if he does go abroad he may not stay as long as four months each time; (c) he is unlikely to be accompanied by more than a very few carers; and (d) the cost of each trip is difficult to calculate but will be only a fraction of the annual amount claimed. I have reached the conclusion that an award of a lump sum of £160,000 under this head of claim is appropriate. That is the sum, which I award.

12.17	In doing so, I note that £160,000 is the equivalent of almost £11,000 per annum, if a whole of life multiplier were to be used. That is about one fifth of the annual multiplicand claimed. That seems to me to be about right. If I had adopted a multiplier and multiplicand approach, it seems to me that I would have reached a very similar figure. I would have reduced the Claimant’s starting figure to reflect the fact that more reasonable airfares and accommodation costs could be achieved. There would be a large reduction in the figures for the carers who will just not travel (with a concomitant reduction in carers’ fares, subsistence and accommodation costs). There would be a substantial discount for the likelihood (particularly in the later years) that the holiday will not be taken or would last for a shorter period. And there would have to be a more modest starting point, having regard to what I have already held about the so-called benchmark. The award under this head is £160,000.

Section 13: The award

13.1	Subject to the calculation of interest, I set out the final awards below. Figures in italics are sums agreed by the parties. The awards made by me, as per this Judgment, are in bold.

13.2	Addendum: the parties have now agreed the figures for interest, which I am now able to insert include below.

	Description	Lump Sum	Periodical Payment	
1.	General damages	£225,000		
2.	Interest on general damages	£9,690		
3.	Past loss of investment income	£35,500		
4.	Past care	£340,000		
5.	Past medical	£31,041		
6.	Past equipment	£42,590		
7.	Past transport	£70,000		
8.	Past household	£62,500		
9.	Past leisure	£22,500		
10.	Past holidays	£26,765		
11.	Past accommodation	£253,875		
12.	Interest	£ 16,775		
13.	Future loss of earnings etc	£163,098		
14.	Future care		£260,000	
15.	Future medical	£240,000		
16.	Future equipment	£120,000		
17.	Future transport	£180,000		
18.	Future household	£110,000		
19.	Future leisure	£130,000		
20.	Future holidays	£160,000		
21.	Future accommodation	£104,743		
	Totals	£2,344,077	£260,000	

………………………………….

The Hon Mr Justice MacDuff
10th June 2009