Dixon (by his mother & Litigation Friend Pauline Dixon) v Were [2004] EWHC 2273 (QB)

This was a claim by a road traffic accident victim Dixon (D) for injuries suffered in 1997.

D was a student at Newcastle University.  At the time of the collision D was not wearing his seatbelt and suffered severe physical injuries and brain damage.  Two of the other passengers were killed and the driver was convicted of causing death by dangerous driving.  D was found to have contributed to his injuries and damages were to be reduced with consent by 27.5%.  The key issues for the court in this case were:

(1)  The total amount of damages to be awarded (2) D’s status as a patient for the purposes of fund management and litigation and (3) the issue of long term future care and case management.

Following a period of rehabilitation, D went back to University but returned home to his parent’s house in the holidays where he was cared for by them.  In 2000 he left University and took a tenancy of a property in Henley.  After seeing a psychiatrist in 2002 he admitted himself to the Priory and was later sectioned under s.3 Mental Health Act 1983.  Following his discharge he returned regularly to hospital for rehabilitation for his brain injury.   In 2003 D was an in-patient at the Specialist Brain Injury Rehabilitation Unit at Kemsley for a period of 6 months.  During this time he had a relationship with an auxiliary nurse who became pregnant.  It is assumed for the purposes of the litigation that D was the father.  Following his discharge he rented a flat in London where he remained under the care of a doctor and support workers.

(1) D was awarded damages in respect of future loss of earnings and the loss of remuneration package benefits likely to have been obtained by someone working in the financial services industry.

(2) The insurers of the defendant (W) challenged D’s status as a patient for the purposes of managing the fund received by way of damages.  If he was found to be a ‘patient’ then his financial affairs and property would be managed via the court and W’s insurers would be made liable for the extra costs of administration.  The test as to whether D was a patient is summarised in the judgment in Masterman-Lister v Brutton & Co (2002) which held that the court must not rush to interfere with an adult’s right to manage his own affairs.  The test focuses on the individual’s capacity in relation to the specific facts of the case. This will involve the person having insight and understanding into the issue, being able to see the need to seek advice and make a decision based on that advice.  According to experts D lacked insight and judgment in financial matters and had an unrealistic comprehension of money.  Therefore permitting him to have unfettered management of a large fund of money would in the view of the court have been irresponsible.  He was therefore held to be a patient for the purposes of fund management. In relation to conducting the litigation, it was found that since he could not see the litigation as a whole and was unable to properly instruct legal advisors or act on their advice that he was also a patient for the purposes of conducting the litigation, and therefore rightly had a Litigation Friend.

(3) The court needed to decide upon a fund targeted to D’s reasonable needs to provide properly for his lifetime.  In determining the size of the fund the court had to consider the probability that D would not apply the fund to meet his needs.  It also needed to consider whether D was likely to use private medical care in the future in order to properly consider the amount of damages.  The test used by the court arises from s2 (4) Law Reform Personal Injuries Act 1948 as summarised in Woodrup v Nicol (1993)PIQR Q104 and is based on the balance of probabilities.  To reach a conclusion on whether he would choose private rather than NHS treatment the court considered the nature and severity of his injuries and the likely prognosis.  The key feature of his injuries was an organic personality disorder.  In addition he had bi-polar affective disorder. Both were caused as a result of the accident.  Although the bi-polar disorder could be treated there was no cure for the personality disorder, which would render D unemployable.  It was felt that he would need considerable support to rebuild his life within its new boundaries.  Without structure and support there could be a significant deterioration in his condition.  The court felt therefore that live-in carers were more appropriate particularly as he was vehemently opposed to residential care.   Based on the evidence the court decided that D would opt for private rather than NHS care.

The care package would need to consider the training and provision for live-in support workers, some periods of admission to a private hospital, and the cost of case management.  In making its decision the court was aware that the prognosis for D was bleak and he was unlikely to recover and this was reflected in the final amount of damages awarded.  A compromise was reached on the number of hours of care that was needed and hours required for case management.  The court also awarded a number of miscellaneous costs in respect of extra expenses attributable to the accident.  One such expense was the cost of supervised contact between D and his child or future children, based on the assumption that they would be living apart.  This would require the presence of a support worker on the grounds of safety.  Other miscellaneous expenses included future holidays, gardening, DIY costs, outings, training and expenses for support workers, taxis and increased used of the telephone. Higher utility bills were also factored into the calculation for future losses.

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