Abbs v Somerfield Plc [2010] EWHC 735 (QB) (13 April 2010)

Neutral Citation Number: [2010] EWHC 735 (QB) Manchester County Court Case No: 8MA01519 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Manchester County Court Case No: 8MA01519 Case Transferred from Cambridge County Court Royal Courts of Justice Queen's Bench Division Strand London England WC2A 2LL 13 April 2010 B e f o r e : HH Judge Thornton QC SITTING AS A SECTION 9 JUDGE OF THE HIGH COURT ____________________ Between: MR CEDRIC ABBS Claimant and SOMERFIELD PLC Defendant ____________________ Mr Marc Willems (instructed by Horwich Cohen Coghlan ) for the Claimant Mr James Todd (instructed by Ellisons) for the Defendant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Judge Thornton QC: A. Introduction This judgment follows a trial confined to certain issues of quantum in a negligence action brought by the claimant, Mr Cedric Abbs, against the defendant, Somerfield Plc. Mr Abbs is claiming damages for the injuries and consequential loss that he suffered in a traffic accident between the his Ford Escort van and an articulated lorry owned by the defendant which was being driven by one of its employees. The accident was caused by the admitted negligence of the defendant's lorry driver. It occurred at about 12.20 pm on Wednesday 25 February 2005 on the A428 outside the American Cemetery in Madingley on the outskirts of Cambridge. Mr Abbs was, at the time of the accident, intending to turn right across the other carriageway into the American Cemetery in order to collect a payment for some plumbing work he had previously completed there. His van was indicating that he was turning right and he had stopped before turning to await oncoming traffic. Whilst stationary, he was stuck from behind by the defendant's lorry and the impact forced his van into the path of an on-coming vehicle which struck his van for the second time, forcing it back into the side of the lorry so as to be facing in the direction from which he had come. The defendant admitted liability in an open letter dated 4 May 2005. Mr Abbs started this action by issuing a claim form in the Manchester County Court on 28 January 2008. The action was transferred to the Cambridge County Court and, on 16 July 2008, the District Judge entered judgment for Mr Abbs for an amount to be decided by the court. The trial took place in the Queen's Bench Division in the Royal Courts of Justice. The heads of loss and some of the individual amounts to be awarded have been agreed. The remaining issues to be determined arise under five general headings: (1) Pain, suffering and loss of amenity; (2) Loss of earnings; (3) Care costs; (4) Cost of assistance; (5) Holidays and other expenses; and (6) Interest. B. General background to claims Mr Abbs was born on 25 April 1949 and, at the date of his accident, he was aged fifty six. He is, at the date of this judgment, aged sixty one. He has lived in or near to Cambridge all his working life and has worked as a one-man plumber and central heating engineering business since he was twenty-one. Mr Abbs has been married twice. He had three children with his first wife to whom he was married for seven years. He has been with his second wife Theresa for twenty eight years and they have been married for fifteen years and have one child. Mrs Abbs also has a child from her first marriage. Mrs Abbs is now aged forty nine and has a full-time job as a production manager. They have been living for some years, and still live, in a large detached bungalow in Cottenham outside Cambridge which Mr and Mrs Abbs designed and built themselves. The property has a large garden and Mr and Mrs Abbs also own an adjacent five-acre paddock. Mr Abbs has always worked on his own and without any assistance. In consequence, he had to undertake much heavy lifting of such items as radiators, pipework, baths and boilers and much physical work such as the taking and lifting up of floorboards and the laying and the fitting of pipework and other plumbing and heating items. He has been fit and healthy all his life, he has never smoked and is virtually teetotal, only taking an occasional drink on very rare occasions. His hobbies and activities in the home have always been exclusively concerned with the Abbs' large garden and with internal home maintenance work. He is now unable to work as a plumber and has not worked since the accident and does not intend to work again. C. Individual heads of loss The items of loss and damage whose quantification remains for decision are as follows: 1. Pain, suffering and loss of amenity 1.1 General damages (paragraphs 18 – 19) 1.2 Future hip replacement operation or operations (20 – 25) 2. Loss of earnings and any reduction due to failure to mitigate and to obtain alternative employment 2.1 Past losses (26 – 50, 51 – 52) 2.2 Future losses to 65 (26 – 50, 53 – 54) 2.3 Future losses 65 – 70 (36, 55) 3. Care costs 3.1 Agreed past care costs (56 - 57) 3.2 Future care costs (58 - 59) 3.3 Further costs if there is a further hip operation or there are two further hip operations (60 – 61) 3.4 Glucosamine (62 - 64) 4. Assistance 4.1 Past gardening, decorating and window cleaning (65 – 68) 4.2 Future gardening (69) 4.3 Future decorating (70 – 71) 4.4 Home maintenance (72) 4.5 Future window cleaning (73 – 74) 5. Holidays, Equipment and other expenses 5.1 Future equipment (75 – 76) 5.2 Future holidays (77 – 78) 6. Interest (79) D. Medical evidence Injuries. Mr Abbs' principal injuries involved serious and significant fractures and dislocation of his right hip. These were, firstly, a fracture and posterior dislocation of the right hip and, secondly, a fracture involving the posterior aspect of the acetabulum or socket of the hip joint in the pelvis. This acetabulum fracture was very comminuted and the bone had been broken into many small fragments. The fracture was a complex posterior wall fracture that extended to the superior lip and contained two major articulated fragments and five major cortical fragments with articular cartilage attached. The smooth cartilage surface of the femoral head was also damaged by having been subject to some scuffing. Mr Abbs' other injuries were less significant and involved a minor pneumothorax that did not involve a rib fracture, left sided facial grazes, chest bruising and straining. Subsequent history. Mr Abbs was admitted to Addenbrooke's Hospital, Cambridge on 23 February 2005 direct from the accident and, on the same day, a skeletal traction pin was inserted through the bone just below the knee to allow weight to be applied to the leg and his dislocated hip was reduced under general anaesthesia. On 28 February 2005, surgery was undertaken to reconstruct the hip joint with a plate and screws. The operating surgeon advised Mr Abbs that his fracture was one of the worst he had ever seen of that type, that he would have an arthritic hip and would require a hip replacement in the future. Mr Abbs was then transferred to the Cambridge Lea Hospital, was treated with Warfarin to thin his blood and he regained some mobility on crutches and in a special wheelchair. He was advised that he would be unable to bend his hip beyond 45° for three months. He was discharged on 11 March 2005, having spent seventeen days in hospital. Mr Abbs suffered considerable pain from the bruising to his chest and ribs for about one month after the accident. He also suffered regularly from dizziness. He had difficulty with his memory and concentration for many months after the accident. He was referred for a CT Scan and, since the results were outside the normal range, was referred to a Consultant Neuropsychologist who concluded in August 2006 that the results had returned to within a normal range and that the earlier results had been due to the pain and suffering Mr Abbs had endured following his accident. He remained in a wheelchair for about three months and on crutches for a further three months. He progressed well for the first year. However, after about one year, he became aware of an ache in his hip and buttock with occasional symptoms into his thigh and knee. He found it difficult to sit for longer than about two hours and after a period of sitting, his hips felt stiff. He could walk for periods of between one and two hours, covering a distance of between two to three miles. X-rays in March 2006 indicated some early arthritic change. He was able to resume driving after about eight months. Over the next twelve months, Mr Abbs suffered gradually increasing pain around the right hip and, after sitting for about one to one and a half hours, found that this pain would take up to fifteen minutes to settle, having previously taken a few minutes at most to settle. He was also finding it harder to walk for the periods and distances he had been able to in the previous year. He was needing to take Paracetamol on average two to three times per week. X-rays taken in March 2007 and May 2008 showed a slight sclerosis around the superior aspect of the hip joint and an osteophyte developing on the lateral margin of the femoral head. Since 2007, there has been little change in Mr Abbs' condition. His right hip hurts or provides discomfort on a regular basis and he regularly takes Paracetamol to ease his pain. Mr Abbs described this pain as an arthritic pain and he considered that it was gradually getting worse. From the outset of his recovery, it was clear that Mr Abbs was, and would be, unable to undertake any manual work, to lift or carry anything, to sit for anything longer than about one to two hours or to walk for any great distance. This remains his condition. He was completely reliant on his wife and step-daughter for many months for tasks such as dressing and washing. He remains reliant on his wife for some tasks such as putting on socks and lacing his shoes. He continues to undertake physiotherapy and stretching. He is able, and has been since about 2007, to undertake personal tasks. Since the Abbs live in a bungalow, there is no problem with mounting or going down stairs. He can manage stairs but requires a stair rail for support. A further significant consequence of the accident is that Mr Abbs has been unable to undertake his principal hobby and recreation, namely working in his garden and paddock and in home maintenance and decoration and will be unable to undertake these hobbies for the rest of his life. Agreed medical evidence. Both parties instructed a Consultant Orthopaedic Surgeon. Mr GS Keene was instructed on behalf of Mr Abbs. Mr Keene has been a Consultant in Trauma and Orthopaedic Surgery at Addenbrooke's Hospital, Cambridge since 1997. Mr Keene did not examine or operate on Mr Abbs following the accident and was first instructed by Mr Abbs' solicitors on 24 January 2006. Mr Keene saw Mr Abbs on two occasions on 25 May 2006 and 13 May 2008 and provided two reports following those examinations. He also contributed to and signed the joint statement signed by both Orthopaedic Surgeon experts following their meeting on 28 January 2009. Mr Michael Beverly was instructed on behalf of the defendant. He is a Consultant Trauma and Orthopaedic Surgeon at the Cromwell Hospital. Mr Beverly saw Mr Abbs in May 2006 and October 2008, he provided two reports following those examinations and two further letters and contributed to and signed the experts' joint statement. In the joint statement, the two surgeons agreed that Mr Abbs had managed satisfactorily with complex internal fixation of the acetabulum and his recovery was within a reasonable time frame. He had had physiotherapy and had been advised not to return to his previous physically demanding employment. They both had found scarring, weakness, stiffness, discomfort and loss of performance around his right hip. The joint statement then summarises their respective and differing views as to whether hip replacement surgery will be necessary in the future and their complimentary views as to his employment prospects from an orthopaedic point of view. These views are referred to below [1] . Neuropsychological evidence. Mr Abbs was referred to Dr Tom Manly at Addenbrooke's Hospital for neuropsychological assessment because of concerns that Mr Abbs had suffered a brain injury as a result of the accident. These concerns arose because of Mr Abbs' perceived difficulty in planning, word-finding, memory, concentration and motivation. Dr Manly reported in August 2006. His conclusions were that there was no contemporary evidence that brain injury had occurred, and no evidence of any retrospective memory loss or post traumatic amnesia that might support the view that there was brain damage. Any perceived shortcomings in these respects were likely to have been the consequence of being in pain and distress. However, the assessments identified that although Mr Abbs' general intellectual abilities were above average, he appeared to have long-term rather specific difficulties with written material. These difficulties were demonstrated by his long-term problems in finding the right words to use, in never reading anything including books on his chosen skill as a plumber and in being able to remember names. These long-term difficulties are not directly related to his accident and, indeed, have been present with him throughout his working life. They do have relevance in relation to the defendant's contention that Mr Abbs could and should have mitigated his loss in finding and holding down a sedentary desk job once he had become fit to work following his recovery from the accident. General summary of remaining issues reliant on medical background. On the basis of this factual background, the principal remaining issues may be summarised as being what level of general damages Mr Abbs is entitled to, whether he was reasonable in not actively looking for alternative employment, whether he is likely to require either one or two hip replacement operations during his remaining lifespan, what aids he might reasonably need following such an operation if it occurs and whether it is reasonably necessary for him to continue with a long-term course of Glucosamine. E. Particular Claims 1. Pain, suffering and loss of amenity 1.1 General damages The principal injury is four-square within the category defined in the current Judicial Studies Board Guidelines as severe and which includes: "a fracture of the acetabulum leading to degenerative changes and leg instability requiring an osteotomy and the likelihood of hip replacement surgery in the future." It has been seen [2] that there is, in this case, a very significant injury requiring complex reconstruction surgery allied to inserted metalwork. There is also a likelihood of hip replacement surgery, a need that in part arises from degenerative change in the hip indicative of post-traumatic degenerative change and osteoarthritis. There was in addition, a minor pneumothorax and left-sided grazes and chest bruising. The pain was intense and the recovery period prolonged resulting in permanent restricted mobility and incapacity. These all place these injuries towards the top of the bracket of general damages awards provided for in the guidelines, namely at £30,000 in a bracket running from £25,000 to £33,500. Mr Todd, counsel for the defendant, contended that the appropriate bracket was the lower bracket, described as moderate, which includes significant injury to the hip, but where any permanent disability is not major and any future risk is not great. This contention was premised on there only being a small risk of a future hip operation, which is a premise belied by the evidence. It was also based on the case of Hamley v Leicestershire County Council [3] . That case involved a total hip replacement in circumstances where there was only a 10% chance of further surgery being required and where there was no complex reconstructive surgery. The long-term incapacity and the long-term pain suffered by that claimant were significantly less than the incapacity and long-term pain that Mr Apps has been and will continue to be subjected to. It follows that the appropriate bracket is the severe bracket and the appropriate award is £30,000. 1.2 Future hip replacement operation or operations It was Mr Keane's firmly held view that there was more than a 50% possibility of Mr Abbs requiring total hip replacement surgery within the next ten years. He quantified that risk as being around 80%. This surgery, he explained, would be necessitated by what he considered to be the high risk of early osteoarthritis. This risk arose as a result of three related features of Mr Abbs' post-reconstructed hip: (1) A slight loss of joint space following the reconstruction; (2) The formation of a bump on the outside of both hips compromising movement of the hip; and (3) The onset of sclerosis. Mr Keane supported his view that there were already signs of the onset of sclerosis by reference to subtle changes in the X-rays that had been taken in 2006, 2008 and August 2009. A further indicator that hip replacement surgery is highly likely is the level of pain still being suffered by Mr Abbs. Mr Keane explained that the trigger for such surgery is not only identifiable degeneration but also a high level of pain being experienced over a lengthy period of time. Such pain will often persuade a patient to seek hip replacement surgery as a means of alleviating this discomfort. Mr Beverly considered that there was no more than a 20% - 30% chance of Mr Abbs requiring a hip replacement within the next ten years. Mr Beverly unconvincingly sought to show that there had been no significant progression of osteoarthritis in the right hip notwithstanding the apparent progression demonstrated on the X-rays. Indeed, he went so far as to assert that there was, as yet, no significant osteoarthritis at all. These opinions were belied by the visual evidence of the X-rays, as convincingly demonstrated by Mr Keane. They were expressed in his oral evidence and they also belied his opinion in his second report which suggested that there had been a minor progression in degenerative change between 2006 and 2008. On behalf of Mr Abbs, his counsel Mr Willems contended that a hip replacement would be 80% likely within five years and a second would be 50% likely within a further ten years. These further submissions were not supported by the evidence of Mr Beverly and I reject them. The agreed additional recovery for this operation is 80% of the agreed cost of £12,000, being the projected cost ten years after the post-accident surgery, a sum of £9,600. On balance, the evidence of both surgeons shows that the replacement surgery, if it takes place at all, is likely to take place between ten and fifteen years after the reconstructive surgery that took place in 2005. This estimate is based on the slow but gradual deterioration of the hip and a similarly-paced onset of sclerosis. These slow but inevitably continuing signs of degeneration will lead, eventually, to the need to replace Mr Abbs' right hip. The operation is not risk-free and Mr Abbs has been advised, and appears to have accepted that advice, that he should not have a hip replacement until either the hip has degenerated to the point when this is necessary or the pain from his hip has become unbearable. He is also consciously leading a life style which involves placing as little stress on his hip as possible so as to delay the point when a hip replacement operation is needed. Since the osteopathic surgeons agree that the replacement hip operation, if it is needed at all, will be needed within about ten years of the accident, I consider that it is very likely that a replacement hip operation will be needed and that that will occur at or towards the end of the suggested period within which it will be needed. I therefore consider that, the decision to replace the hip will be taken about ten years from the accident or in about five years from now. That decision has an 80% probability of occurring. 2. Loss of earnings and any reduction due to failure to mitigate and to obtain alternative employment Evidence. Mr Abbs contended that he was reasonable in not actively seeking alternative employment and, even if he had sought employment, he would not have obtained it. On behalf of the defendant, it was contended that Mr Abbs should have sought employment and could have obtained it from 1 April 2006. It is necessary first to reach a decision on these rival contentions before considering what past and future loss of earnings that Mr Abbs has established. Mr Abbs was fifty six at the date of his accident and he has not worked or looked for work or sought to retrain for alternative employment since his accident. He is claiming loss of all past earnings to the date of the trial, all future earnings to sixty five, his usually anticipated retiring age, and further future earnings until seventy. In considering Mr Abbs' loss of earnings, it is necessary to consider the evidence as to his capabilities and aptitude and motivation and attitudes; as to his past earnings and future prospects as an uninjured self-employed plumber and as to the availability of suitable employment and the likelihood of his obtaining such employment in his actual post-accident state and with his current capabilities following any suitable and available retraining that he could first have undertaken. I will examine these under the following headings: (1) Employment and earnings history at the date of the accident; (2) Future prospects and intentions had there been no accident; (3) Capabilities and aptitude; (4) Motivation and attitudes; (5) Retraining; and (6) Available alternative employment. In the light of that evidence and any findings, I will then examine the following matters: (1) What loss, both past and future, has been caused by the accident; (2) Whether any of that loss could and should have been avoided had Mr Abbs already taken, and takes in the future, reasonable steps to mitigate it. The relevant evidence came in six parts as follows: (1) Mr Abbs gave detailed written and oral evidence which was supplemented by written evidence from Mrs Abbs and Mr Abbs' step-daughter, Ms Michelle Aitcheson. (2) Each party instructed a forensic accountant to advise as to Mr Abbs' past earnings and loss of earnings as a plumber. Mr Nicholas Fail FCA was instructed on behalf of Mr Abbs and Mr Andrew Strickland FCA on behalf of the defendant. Each accountant produced a report and both signed an agreed joint statement. (3) The parties instructed jointly an expert in employment and earnings opportunities, Mr Derek Amner. He reported in writing and answered eleven questions that had been posed on behalf of Mr Abbs under the provisions of CPR 35. (4) The two Orthopaedic Surgeons and the neuropsychologist gave evidence as to Mr Abbs' assessed and projected physical and psychological state following his accident. (5) Each party instructed an expert on care needs. Ms Helen Street was instructed on behalf of Mr Abbs and Ms Irene Waters on behalf of the defendant. Each expert prepared a detailed care assessment and both signed an agreed joint statement. Employment and earnings history at the date of the accident. Having left school at fifteen, Mr Abbs undertook a four-year apprenticeship in heating and ventilation engineering and in welding. He then worked for about three years with Gas Coal converting industrial premises from town to natural gas and then, aged twenty one, he became a self-employed plumber. He worked for five years as a subcontractor installing central heating into houses and then set up his own one-man plumbing and central heating business. This he worked continuously save for three or four years in the early 1980s when he worked as a one-man property developer. He built two new houses in that time and bought, renovated and sold ten further houses. His plumbing business was incorporated between the mid 1980s to it being dissolved on 4 October 1994. At all other times during his twenty years or more as a one-man plumbing business, he traded as an individual. Mr Abbs worked in and around the Cambridge area. Since he resumed work as a plumber in the mid-1980s, built up a substantial client-base that was personal to him. This client-base included many who had lived in the area for many years and was, in consequence, aging. The bulk of his work involved installing new central heating systems and the balance of his work involved providing plumbing services. He also undertook redecoration services for a Housing Association which owned 68 flats in Cambridge and on occasion would build whole kitchens for a client. He was for many years a Corgi-registered engineer but he allowed his registration to expire in March 1998 and continued to trade satisfactorily without such registration until his accident. In 1999, Corgi registration was replaced by a Gas Safe Register and registration on this Register has been compulsory for all types of work with gas appliances and pipework. Mr Abbs did not register for this scheme so that he was unable to provide the compulsory commissioning and inspection of his work. His practice was, when working with gas pipework or appliances, was to sub-contract this final work to a Corgi-registered plumber and heating engineer, usually but not invariably his nephew, but his ability to avoid registration in his own name was becoming more and more difficult to achieve due to a growing reluctance of other engineers to take responsibility and to carry insurance for another's work. Mr Abbs has never used a laptop or other computer and is entrenched in his view that he cannot and will not use one. He was also most reluctant to undertake any of his paperwork including his invoicing and estimating work. This was always undertaken by his wife. In consequence, many of his tax returns were late in being returned and, given his wife's full-time job, resulted in much delay and inefficiency in the administration of his plumbing and heating business. Throughout his working life, Mr Abbs has set considerable store in being able to work for himself as a one-man business answerable only to himself. He has, effectively, never worked with anyone else over the last forty years and even found it impossible to work for or with his nephew after he started up his own plumbing business having been Mr Abbs' apprentice some years ago. Mr Abbs worked incredibly hard for relatively poor returns. His practice was to work about eight to ten hours per day five days a week and three to four hours on Saturdays. He took three weeks holiday each year. His net profits in the five years before his accident were agreed by the two accountants and by Mr Abbs following their agreements, to lie in the range £10,700 - £12,700 per annum. This yielded a, ongoing annual net loss of £12,634. Future prospects and intentions had there been no accident. Mr Abbs had no plans to retire before he was sixty five and, indeed, talked of working on until he was seventy at a reduced basis of working. The evidence suggests that these general aspirations were unlikely to have been achieved. This is for these reasons: (1) Before the accident, he had been planning to go into small-time property development with a client with whom he was very friendly. The intention was that he would provide the necessary plumbing, heating and other practical services whilst properties that the two acquired were refurbished and then sold. This would inevitably have led to a reduction in his other work with private clients and, particularly after the onset of the recession, to an overall reduction in his net profits from this differently constituted business. He also anticipated being more choosy as to which jobs he took on and intended to cherry-pick these as he got older. (2) Mrs Abbs is twelve years younger than Mr Abbs. They both enjoyed taking foreign holidays and currently have two grandchildren living in the Cambridge area and a daughter and two other daughters of Mrs Abbs with whom they have close contact. It seems likely that Mr and Mrs Abbs will wish to devote more time to their family and foreign travel over the coming years. (3) The recession would clearly have led to a loss of some business and his client base is aging and appeared not to be renewing itself as his older clients leave him. Moreover, Mr Abbs' refusal and/or inability to learn even rudimentary IT skills or to become Corgi registered would undoubtedly have become a greater and greater handicap and to a loss of business over time. (4) Mr Abbs owns a large paddock adjacent to his house and obtains most of his recreational pleasure from his gardening in the Abbs' large garden and in DIY activities around the house. (5) The small returns, relatively speaking, for the time and effort he put into his work would be likely to become less and less appealing as he nears and then reaches retiring age. On balance, it would be likely, given these factors, that Mr Abbs would have continued to earn net profits at the agreed average rate until he was about sixty and to have earned a reduced net profit over the immediate years before he reached sixty five, his due retiring age, at a reduced rate such that he would have earned overall in the four-year period before retirement half the net profits that he would otherwise have earned, albeit that the reduction in net profits year on year in those four years would not have been the same but would have increased in each of these declining years. Mr Abbs would then have retired on or around his sixty-fifth birthday. Capabilities and aptitude. Mr Abbs is personable, friendly and hardworking. He has, however, few transferrable skills. He has no transferable vocation or educational qualifications. He is unable to use a laptop or computer. He has an aversion to paperwork, reading, routine or repetitive work and to working with or under other people. Mr Abbs has, therefore, a number of characteristics which would make it very difficult for him to fit in with a working environment where he was not in charge of his work and where he had to work with others. He has never worked with anyone else over the last thirty years of working. This was from choice and from a marked reluctance to work with other people or for other people. He was unable to work with his nephew for these reasons when he set up on his own having served an apprenticeship with his uncle. Furthermore, Mr Abbs has an unwillingness or possible, inability to undertake paperwork, administration or bookkeeping having either left these tasks to his wife or not to have done them at all. He never even kept a working diary but worked from memory. He does not read anything because he has no inclination to read anything. He has never used any form of computer, considers himself incapable of using a computer and doggedly insisted that he never would use a computer. These attributes are clearly associated with two features identified by his neuropsychological assessment. He was assessed as having relatively poor verbal fluency and poor performance in the visual search tasks. These difficulties were associated with underperformance in reading and writing skills. The Orthopaedic surgeons agreed as to Mr Abbs' current and future capability to work. Both accepted he could not return to his previous plumbing and heating engineering work but both thought that he was capable of light employment involving a desk or office environment or supervisory work, any such work being semi-sedentary. However, there are three contrary matters that need to be considered: (1) Mr Abbs is clearly in discomfort for much of the time and in pain for significant parts of the day. This background discomfort and pain appear to be increasing with time and it makes concentration difficult. (2) It is difficult for Mr Abbs to remain seated for longer than about ninety minutes at a time and it is then necessary for him to take at least fifteen minutes to recover from the additional discomfort that he then experiences. (3) Mr Abbs is acutely conscious of the need to avoid undue movement or stress on his hip since he wishes to postpone the need for a hip replacement for as long as possible. In taking this stance, he is following the advice of the operating consultant who remains the consultant responsible for his post-operative care. Mr Abbs' ability to drive for long periods has been impaired. He cannot drive for longer than about two hours after which he feels increased pain for at least one and a half hours. Any further driving that day is problematic and any period of driving of two hours or more is likely to impair his sleep. He has difficulty in sleeping on frequent occasions, particularly after taking exercise or other physical activity or after any period of sitting. There is no evidence that Mr Abbs in malingering or exaggerating these features of his accident. It is clear that the amount of continuing pain and discomfort following hip injuries and surgery can vary considerably and, in any event, Mr Abbs' hip injury was one of the most significant that is possible. Motivation and attitudes . Mr Abbs has very little motivation to obtain employment. His background pain and discomfort and his on-going fear of further exacerbating the injury to his hip, his attitudes towards his capability to undertake work involving the use of a computer or an element of paperwork and sedentary employment and his general ingrained reluctance to work for or with anyone all combine to reinforce, and to explain, his effective refusal to look for alternative employment. In view of his physical, psychological and social difficulties, this attitude cannot be said to be unreasonable. Thus, although Mr Abbs has refused to consider applying for other employment, that refusal can reasonably be linked to his acceptance that he lacks the necessary ability to become involved in any work or any tasks or any training that would be involved in his obtaining employment given his age and circumstances. Retraining . Mr Amner, in his joint report, states that in virtually all occupations it is necessary to utilise a computer and skills similar to those needed to operate one. Mr Amner considered that it was necessary for Mr Abbs to acquire basic computer-using skills since he would need such skills to acquire any additional vocational skills and qualifications that further employment would be likely to require and as part of the necessary skills that he would need to undertake sedentary employment. Mr Amner pointed out that such skills could be readily acquired in Cambridge. Given his ingrained attitudes, his relevant psychological weaknesses already identified, his age, his lack of qualifications, his lack of aptitude in reading, studying or concentrating on the written word, I find that there is no realistic prospect of Mr Abbs acquiring any further skills, whether vocational, computer-based or learning-based. Available alternative employment. Mr Amner considered that Mr Abbs, following necessary retraining and IT-based skills acquisition, could have acquired a desk-bound or supervisory or security-based job in the Cambridge area from about 2006 onwards. He pointed out that unemployment in the Cambridge area was lower than the national average and that Mr Abbs would have been entitled to the benefits of the Access to Work scheme as one suffering from a disability. He gave twelve examples of jobs currently advertised at the date of his report in May 2009. When each of these was considered, none of them were suitable for Mr Abbs in that they would have required at least one of these attributes which Mr Abbs is unable to provide: IT skills, other vocational training, physical exertion, lengthy periods of standing or a background in security. It follows that, given Mr Abbs' various attributes making him unsuitable for further employment, being related to his age, disability, learning and psychological difficulties, fear of further enhancing his pain and disability, negative attitude and lack of motivation there was no realistic prospect of Mr Abbs obtaining further employment at any stage up to his normal retirement. What loss, both past and future, has been caused by the accident. Mr Abbs has lost the entire agreed loss of earnings to date and one half of the agreed loss of earnings up to 65. He has not lost any earnings in the years following his sixty fifth birthday. Whether any of that loss could and should have been avoided had Mr Abbs already taken, and takes in the future, reasonable steps to mitigate it. The defendant contends that Mr Abbs has failed to mitigate his loss by refusing to seek any alternative employment. On behalf of Mr Abbs it is contended that Mr Abbs has an ingrained reluctance to work with or for others which it is no longer possible for him to accommodate and acclimatise himself from, that he has no relevant skills including IT skills and a reluctance and inability to change. His age further militates against his wish to find further employment. These problems are exacerbated further by a lack of suitable jobs and by the onset of the recession in September 2008. It is clear that questions of causation, mitigation and employment opportunities are all bound up together in Mr Abbs' case. I find, on the detailed evidence summarised above, that Mr Abbs was not unreasonable in refusing to look for alternative employment, was unlikely to find alternative employment even if he looked for it, was unlikely to be offered a suitable job even if it became available and was in any event physically and psychologically incapable of undertaking any suitable employment even if he was to be offered such employment. 2.1 Past losses It is agreed that Mr Abbs' past losses to the date of trial are £53,708.00. It is reasonable to take the date of trial as the date from which Mr Abbs' earnings as a plumber would have started to taper off. He is entitled to the whole of this sum. The sum that is awarded is, therefore: £53,708.00. 2.2 Future losses to 65 It is agreed that Mr Abbs' future losses from the date of trial to the age of 65 would have been £46,872.14. Thus, half this figure is £23,436.07. He is entitled to that sum. The sum that is awarded is, therefore: £23,436.07. 2.3 Future losses 65 – 70 Mr Abbs has not lost any future earnings in that period. 3. Care costs 3.1 Agreed past care costs These have been agreed in the sum of £8,774.43. The sum that is awarded is, therefore: £8,774.43. 3.2 Future care costs The agreed future care costs prior to the hip replacement operation is at the rate of £618.93 per annum. The multiplier, to take account of there being no claim in the period running up to the operation, is claimed by Mr Abbs as being 4.7. This multiplier is accepted. The sum that is awarded is, therefore: £2,908.97. 3.3 Further costs if there is a further hip operation or there are two further hip operations The further costs that will be incurred following Mr Apps' replacement hip operation must be calculated on the basis that Mr Abbs will have an 80% chance of having tbat operation in about February 2015. This gives rise to the following award: (1) An agreed figure for the care that will be needed in the run up to any hip operation is £1,250.00. (2) A claimed and accepted figure for the care needed after the hip operation over a three-month period of £6,135.50 x 80%. The sum is, therefore, £4,905.40. (3) Care is claimed for the period after the hip operation for Mr Abbs' remaining life expectancy period. For this period, the appropriate multiplier is 12.3 and the appropriate rate is £309.46. The sum is, therefore, £3,806.36. The sum that is awarded for these three items is, therefore: £9,961.76. 3.4 Glucosamine Mr Abbs was recommended by his consultant to take a regular course of Glucosamine to assist in arresting the development of osteoarthritis in the hip bones. This drug is not available on the National Health and Mr Beverly did not consider that it had any proven ability to combat osteoarthritis. His view was that although it had been on the market for this purpose for some years, it had not been shown in many trials to have any positive benefit. Mr Keane, however, like Mr Abbs' surgeon, does recommend Glucosamine to his patients and supported Mr Abbs' wish to continue with this drug. Since this course of treatment is recommended by a respectable body of medical opinion, it is reasonable for Mr Abbs to continue with it and the claim is allowed. Mr Abbs is claiming the future cost of Glucosamine until his hip is replaced. The annual agreed cost is £240.00 and the appropriate multiplier until the probable replacement operation in 2015 is 4.7. The sum that is awarded is, therefore: £1,128.00. 4. Assistance 4.1 Past gardening, decorating and window cleaning expenses The agreed claim for obtaining decorating and window cleaning assistance in the past since the accident is £4,104.00. The sum that is awarded is, therefore: £4,104.00. The claim for past gardening expenses is agreed in principle but the defendant has only admitted for the visits by the jobbing gardener which are supported by handwritten receipts. Mr Abbs, in his signed schedule of loss and in his written and oral evidence stated that he had employed a gardener for 34 weeks per annum over the relevant period. This evidence is inherently credible and I accept it. Mr Abbs' claim is admitted in full. The evidence suggests that the reasonable period for employing a gardener is 32 weeks per annum but in addition, that Mr Abbs reasonably employed a hedge-cutter at a cost of £500 per annum. This additional cost has not been claimed and the additional two weeks of gardener's wages may be off-set against that claim. The sum that is awarded is, therefore: £7,276.00. 4.2 Future gardening The relevant period is until Mr Abbs is 70 for the full amount since, until then, it is reasonable to have anticipated that he would have undertaken all the gardening himself. Between 70 and 75, he would have undertaken all but the heaviest work so that he would, in any event, have employed a gardener for half the time he now employs him. The relevant weekly multiplier is £40. This is £5 less than what is currently paid but there is a saving, which I estimate to be about £5 per week because the gardener brings his own equipment and pays for its running costs out of his weekly receipts from Mr Abbs. The relevant number of weeks is the reasonable and suggested growing season of 32 weeks contended for by Ms Waters. The relevant multipliers are 8.39 up to the age of 70 and 3.07 between 70 and 75. Hedge cutting may be claimed for in addition. The sum that is awarded is, therefore: (1) Up to 70: (40 x 32 + 500) x 8.39 = £14,934.20 (2) Between 70 and 75: (20 x 32 + 250) x 3.07 = £2,732.30 The sum that is awarded, is therefore: £17,668.50. 4.3 Future decorating The agreed redecoration cost is £2,700.00. However, Mr Abbs contends that it is reasonable to redecorate every 5 years whereas the defendant contends that the reasonable redecoration cycle should be every 8 years. That longer cycle, on the evidence, was the reasonable cycle to take. The annual claim is, therefore £337.50. Adopting the claimant's method of calculation, the claim is: (1) Up to 70: 337.50 x 8.39 = £2,831.62 (2) Between 70 and 75: 168.75 x 3.07 = £507.43 The sum that is awarded is, therefore: £3,339.05 4.4 Future home maintenance Mr Apps claims the cost of a handyman on the basis of a need to engage such help for an average of two hours per week. This cost is additional to decorating, gardening and window cleaning. Mr Apps was unable to identify what expenditure over the last five years he has incurred, in addition to these other claims, which related to this claim and, significantly, no claim for past expenditure on a handyman has been made. This claim fails for want of proof. 4.5 Future window cleaning The agreed figure is an annual sum of £312.00 and an agreed multiplier of 8.39. The sum that is awarded is, therefore: £2,617.68. 5. Holidays, Equipment and other expenses 5.1 Future equipment The agreed figure is £1,495.98. The sum that is awarded is, therefore, £1,495.98. 5.2 Future holidays Mr Abbs will incur the additional cost of purchasing air tickets that provide him with extra leg room on two flights per year on his holiday flights. It is agreed that this claim should be met for such flights until he is 75. Mr Abbs claims this extra cost beyond 75 but I find that, on the balance of probabilities, Mr Abbs will not be flying on such holidays after he is 75. The agreed annual sum of £160.00 is therefore subject to a multiplier of 11.46 (the agreed multiplier to 75 as opposed to the enhanced life multiplier). The sum that is awarded is, therefore: £1,833.60. 6. Interest The parties are to seek to agree the appropriate interest award to be made on these figures. F. Overall Conclusion Mr Abbs is entitled to judgment for the sums set out in this judgment, any additional agreed sums and the appropriate interest on these sums. Note 1 See below, paragraphs 20 – 25 (in relation to the claim based on a further hip operation or hip operations) and 39 (in relation to the claim for loss of earnings). [Back] Note 2 See above, paragraphs 8 - 9. [Back] Note 3 Reported in Kemp & Kemp, Volume 4, paragraph H1-019. [Back] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII