MR JUSTICE JAY:
- In this action Mrs Lorna Hayden ("the Claimant") claims damages for personal injuries following an accident at work which took place as long ago as 23rd March 2007. At the material time the Claimant was employed by the Defendant as a cardiac physiologist at the Kent and Sussex Hospital in Tunbridge Wells. Liability for this accident has been admitted by the Defendant, before proceedings were issued, and I am asked to assess damages.
- There is a chasm between the parties as to the true valuation of this claim. The Claimant's Schedule of Loss (of which there have been many reiterations) claims financial losses in the region of £1.5M. The Defendant's Counter-Schedule concedes an amount in five figures. This vast disparity in respective valuations may be explained by two principal factors: viz.: (1) the Defendant's position is that the Claimant would have suffered her significant injury, a prolapse of the cervical spine at C5/6 level, within 12 months of the index incident in any event (whereas it is the Claimant's position that "very probably" such an injury would not have occurred at all but for the accident); and, (2) the Claimant's position is that she continues to suffer symptoms which interfere significantly with her daily life, and impede her ability to return to work (whereas it is the Defendant's position that the Claimant is deliberately exaggerating her degree of disability in these proceedings).
- The resolution of the first of these issues (there are, of course, other issues in this case; but at this stage I am focussing on the main points) depends on my assessment of the orthopaedic evidence which has been fully debated before me. The resolution of the second issue depends on my assessment of all the expert evidence which has been adduced, as well as (and in the end, probably the most important consideration) my assessment of the Claimant herself. She was closely cross-examined over a number of hours, without any intervention by me, and I had the opportunity to watch her closely over that period.
- Given the importance of the Claimant's evidence, I will set this out quite fully in this Judgment. The other evidence I will certainly endeavour to condense. But before I do any of this, I propose to set out a narrative of events as the backdrop to my more detailed consideration of the evidence.
Essential Factual Background
- The Claimant was born on 18th December 1981. She has a BSc Honours in Clinical Physiology, specialising in Cardiology.
- On 11th June 2002 the Claimant saw her GP complaining of a "whiplash" injury sustained in a road traffic accident. By 6th August 2002 her GP noted that her symptoms had largely resolved. I infer that the Claimant was not referred for an orthopaedic assessment.
- In 2002 the Claimant started working at the Kent and Sussex Hospital as a student physiologist, and on my understanding of her evidence she completed her training in 2004. Thereafter, she worked at the hospital as a cardiac physiologist.
- In or about September 2006 the Claimant began working in the new Catheter Laboratory at the hospital, in addition to other duties. She worked there about 4-6 sessions a week (each session being half a day), and her evidence was that in any session she would assist in the manual transfer of about 8-12 patients.
- The Claimant's accident happened on Friday 23rd March 2007 when she was assisting in the manual transfer of a particular patient. The mechanics of the accident are in dispute between the parties, but the orthopaedic experts are agreed that the Claimant suffered a prolapsed intervertebral disc at the C5/6 level either in or directly as a consequence of this trauma. There is also contemporaneous documentary evidence, in the nature of a report completed by the Cath Lab manager, to the effect that the Claimant immediately complained of "something popping in her neck".
- The Claimant was off work for about ten days and returned to work on 2nd April 2007. However, on 3rd May she went to the A&E department at the Kent & Sussex Hospital complaining of severe pain and dizziness whilst driving to work as well as numbness and tingling in the right arm. On examination she was hyperventilating and had a very severe trigger spot just above the right scapula this was infiltrated with local anaesthetic. The Claimant did not return to work until September of that year, and then on a phased and/or restricted basis. The exact chronology is not altogether clear, and does not matter. It is clear from the Claimant's evidence that she was no longer working in the Cath Lab.
- On 8th June 2007 the Claimant was seen by the SpR to Mr Velayudham, consultant orthopaedic surgeon at the Defendant's hospital. He noted the Claimant's complaint of "a lot of spasm and severe neck pain associated with right arm pain". Physiotherapists had been "successful in alleviating her neck spasm and pain but she is left at the moment with troublesome right-sided arm symptoms". On examination, the Claimant was noted to have some slight restriction in neck movements "still in full extension and right lateral flexion". The signs and symptoms were consistent with a diagnosis of right-sided C6 radiculopathy (i.e. pain radiating down the right arm). The SpR was confident that the symptoms would resolve without the need for surgical intervention.
- The Claimant then had an MRI scan (at some stage in June 2007, although I understand that the scans are no longer available), and she was seen by Mr Velayudham on 21st August 2007. The MRI apparently showed extruded disc material causing compression on the C6 nerve root. Mr Velayudham diagnosed a right-sided C6 radiculopathy and recommended that the Claimant see a physiotherapist to improve the range of neck movement as well as muscle strengthening exercises.
- On 11th October 2007 the Claimant was seen in the Spinal Clinic at Guy's and St Thomas' Orthopaedic Department by the SpR to Mr Lam. She was noted to have "improved by about 50% following physiotherapy and some local injections".
- On 29th January 2008 the Claimant was seen for the first time at the same clinic by Mr Khai Lam, consultant spinal and orthopaedic surgeon. Mr Lam noted that the Claimant was "doing quite well" although there had been "some deterioration recently". Further, the Claimant was not keen on surgery, which was an intervention of last resort, and Mr Lam stated that she would rather opt for a right C6 nerve injection.
- In early 2008 the Claimant conceived her first child, and her pregnancy postponed the proposed intervention. On 23rd June 2008 the Claimant left the Kent & Sussex Hospital and joined Eastbourne Hospital as a "Highly Specialist Clinical Physiologist". Isabelle was born on 21st October 2008.
- The Claimant was on maternity leave until 21st October 2009 and was then signed off sick by her GP until 5th April 2010. Her second maternity leave started on 6th April 2010 and Marcus was born on 4th May 2010.
- The Claimant's third child, Sofia, was born on 25th February 2012.
- On 5th April 2012 the Claimant was seen again by Mr Lam. His letter to the Claimant's GP reads as follows:
"She persists with severe right cervicalgia and C6 radiculopathy with weakness of her right biceps and has previously dropped things, e.g. a kettle. She continues to be in significant pain and disability and her NDI now is 54%, previously 48% back in 2008. Please find enclosed a copy of her neck assessment form showing her high disability and pain score
Clinically Lorna has right trigger points in her cervical spine, 50% reduction in neck movements in all directions, right-sided Spurling's test positive but negative L'Hermitte's, Romberg's and Hoffman's. Right biceps 4/5 + MRC with a sluggish deep tendon biceps jerk.
Recent updated MRI scan clearly shows a persistent right-sided large C5/6 disc herniation ? now calcification due to the chronic nature of the disorder. Additionally, as compared to her old MRI scans, she has developed further degeneration above at C4/5 with an annular tear. This would certainly explain her increasing neck pains. [NB. according to the consultant neuro-radiologist, Dr Koumellis, the MRI showed a prominent disc osteophyte at C5/6 narrowing the right C5/6 foramen. On my understanding of the expert evidence, the obstruction was now smaller than it was in 2007, but it was harder in density/consistency]
Given her chronic pain and disability, the fact that her disc herniation is unresolved and now likely gone on to calcify, I am recommending two level disc replacement to the C4/5 segment and C5/6 as well. She will need a CT scan to look at obvious calcification ? foraminal osteophyte and also an x-ray to look at her overall neck alignment and posture."
- On 22nd October 2012 Mr Lam operated on the Claimant. He successfully replaced the C4/5 disc with a prosthesis but could not do so at C5/6 level. In those circumstances, he undertook an anterior cervical fusion at that level.
- On 30th January 2013 the Claimant was reviewed in clinic by Mr Lam. According to his letter to the Claimant's GP:
"Diagnosis: 1. Successful C4/5 disc replacement above C5/6 ACDF
2. Still persistent right C6 radiculopathy
Lorna neck feels great and very mobile after her surgery. The pinching sensation in her right trapezial area has gone. Her right arm pain is still causing her a lot of grief. She feels that the nerve pain in her arm is unchanged. Clinically she does not have shoulder impingement.
I wonder whether she has a posterior foraminal ostophyte impinging a nerve over a very tight foramen. This can be the case after longstanding disc herniation with subsequent calcification.
I think it would be prudent to organise a CT scan and I am happy to oversee her treatment at Guy's
via a simple referral from yourself. I can then manage this with either a CT guided nerve root injection versus posterior foraminotomy (best performed by my neurosurgical colleague Mr Fakouri). The end game would be pain management."
- The Claimant ceased working at Eastbourne Hospital on 13th May 2013.
- On 10th July 2013 the CT guided nerve root injection was performed by the consultant radiologist.
- On 8th October 2013 the Claimant was seen for the last time by Mr Lam. He noted that the injection had given the Claimant no benefit. Her right C6 nerve pain was persisting, although her neck pain had resolved. The Claimant was not keen on further surgery, which Mr Lam felt was understandable, and she was referred to the pain management clinic.
- On 11th March 2014 the Claimant was seen in the Pain Management and Neuromodulation Centre at Guy's and St Thomas' by Dr Thomas Smith, consultant in pain management and anaesthesia. In his view the Claimant was suffering from C6 and C7 distribution radicular pain in the right arm. In short:
"She reports 7-8 out of 10 constant pain in the distribution of the right C6 and C7 nerve root. Lifting and carrying worsens the pain. There is a dull persistent background pain along with intermittent pins and needles. At times she drops things."
Mr Smith recommended a trial of three drugs (taken sequentially) but the Claimant proved unable to tolerate any of them.
- On 13th December 2014 the Claimant underwent a further MRI scan. This showed normal vertebral alignment with preservation of the vertebral body heights, as well as evidence of the October 2012 surgery. At C5/6 there was a right posterolateral osteophytic disc causing a right neural canal stenosis and impingement of the exiting right nerve root. The spinal cord was otherwise normal.
- On 28th July 2015 the Claimant was seen at the same clinic by Dr David Pang, consultant in pain medicine. He noted the following:
"She has been seeing a sports physiotherapist locally, who has been doing deep tissue massage and acupuncture with good success, and she is quite keen to explore some psychological therapies [CBT] that may be available locally. She lives in Crowborough, which is quite a distance from Central London, and I would recommend that she be referred to a local pain clinic at either Maidstone Hospital or Pembury, to see if she can access CBT
- In 2015 and 2016 the Claimant has attended a number of sessions of remedial massage and acupuncture therapy, and of CBT.
- The Defendant undertook covert surveillance of the Claimant on 18th February, 22nd-24th February and 10th March 2016. The April trial date was vacated at the 11th hour shortly after this evidence was disclosed.
The Claimant's Evidence
The Claimant's Account
- The Claimant has filed eight witness statements and was cross-examined by Mr Giles Mooney for the Defendant for approximately 4 hours.
- Save in one respect, the Claimant's account of how her accident happened has not been challenged. She was working in the Cath Lab and, along with three colleagues, had to manoeuvre a large male patient, weighing approximately 16 stones, from a standard hospital bed onto a catheterisation table. In common with her colleagues, the Claimant was wearing a single-piece lead apron which weighed about 16-18 lbs. Given the size of the patient, there was some discussion as to how the transfer would be conducted. The Claimant explained to me that the mobile hospital bed was brought alongside the catheterisation table and their respective heights aligned. A "Pat slide" was then positioned so that it was half under the patient (who had to be rolled slightly in order for that to happen), and bridging the bed and the table. On the Claimant's account, the idea was to lift and move the patient so that he was fully onto the Pat slide: once that happened, the absence of friction on the plastic surface of the slide would enable an easy gliding motion across, with the slide being removed as necessary from under the patient once he was safely located on the table.
- The Claimant was positioned so that she had to lean over the catheterisation table, and other colleagues were stationed at notional north, south and west of the patient (I am describing the Claimant as being at notional compass point east). The idea was that the Claimant would bunch up the bed sheets around the patient, as would her counterpart at point west, in order to enable the lift over the edge or lip of the Pat slide - to take place.
- The Claimant has provided a photograph taken from the internet which shows the position of her arms, head and torso at the moment of the lift she described to me. The Claimant is a slight woman and had to stretch out to reach the patient, with her back flexed. There is an issue between the parties as to the width of the table, but this was not explored in the Claimant's evidence and in my view I should proceed on the basis of her unchallenged account.
- The Claimant waited until her manager (positioned at notional point north) gave the command to lift, and as she started to do so she felt something "pop" in her neck region. More precisely, as her second witness statement explains and as was clearly confirmed to me in her oral evidence:
"On the count of 3, I lifted and pulled the patient towards me with just my arms. I was looking up with my neck extended as I did so. As I initially took the weight of the patient's torso and pulled that weight towards my body with my arms fully outstretched (I had not moved my torso up off the bed yet as the left had only just started), I felt a popping sensation in the right hand side of my neck, accompanied by a very intense shooting pain (also in the right hand side of my neck)."
Initially, the Claimant's pain was intense, but later it seemed to subside and, apart from feeling a little shaken, she felt "reasonably alright".
- At this stage I should indicate that the issue between the parties concerns the extent to which the foregoing manoeuvre entailed any element of lift as opposed to slide. This issue was carefully explored in cross examination of the Claimant. She remained adamant that this manoeuvre did entail a slight, but not insignificant, lifting motion. This was because the inertial weight of the patient caused him to "sink" slightly into the mattress, and the Pat slide itself has a modest edge or lip (no dimensions were given in evidence, but I would imagine that a slide of this sort would be several millimetres deep). The orthopaedic experts have also given evidence of fact in relation to this issue, and I will be drawing the threads together later.
- Before I leave the circumstances of the Claimant's accident, I should add that, although her evidence was that this was a routine manoeuvre which she had conducted many times previously, (a) usually the patient was not so bulky, (b) she was not always on the receiving end, at compass point east, and (c) on previous occasions she could not recall having to stretch over the table.
- In her first witness statement dated 13th October 2010 the Claimant provided a record of her current symptoms and level of disability. I will cover these aspects in greater detail later. In her third witness statement dated 8th February 2013, the Claimant said this (at paragraph 5):
"Having re-read my Statement dated 13th October 2010 I feel that I have either dramatically understated the severity of the pain or my symptoms have worsened. Having had the surgery, I was expecting my pain levels and symptoms to dramatically improve and this has not been the case. This has given me a stark realisation of exactly how much pain I am actually suffering and have been so for many years."
- By way of summary of the Claimant's symptoms:
(i) since her injuries, the Claimant has found driving very painful such that if she drives for more than half an hour, she has suffered deep aching pain in her right neck and shoulder region, and intense pain/numbness/pins and needles in her right arm and hand.
(ii) sitting in the same position for longer than 10 to 15 minutes has nearly always brought on the same symptoms despite trying to use her left hand only.
(iii) she is unable to sit in the same position for more than 10 to 15 minutes without suffering "deep pain", and observes that people "think that I am strange for getting up every 15 minutes or so to try and alleviate my pain and symptoms".
(iv) carrying heavy bags causes a deep aching pain in her right neck and shoulder as well as intense pain and numbness and pins and needles in her right arm and hand.
(v) writing also causes an increase in intensity in the pain in her neck such that she cannot write more than a couple of sentences without having to stop.
(vi) she has difficulty using her right hand to hold a phone to her ear, even though she is right-handed, as this causes intense pain and muscle spasms in her right forearm. Occasionally this leads to her hand "clawing".
(vii) doing her make-up, washing, drying and straightening her hair causes intense pain in her neck, arms and hands, muscle spasms in her right arm and numbness and pins and needles in her hand. Getting dressed "can be very painful if I am having a particularly bad day".
(viii) reaching up to get things out of cupboards causes pain and muscle spasms in her arm. She seems to lose sensation in her right hand when trying to pick up or carry heavy items which cause her unexpectedly to drop things.
(ix) "since having children I have obviously been unable to avoid picking them up, carrying them in their car seats, getting them in and out of the car, picking them up and putting them in their cots, getting them in and out of highchairs and pushing them in the buggy. All of these actions cause me intense pain in my neck and arm and can bring on all my other symptoms." The Claimant also stated that, notwithstanding her attempts to limit these and similar activities, the consequence of failing to do so tended to be greater symptoms in the evening.
(x) she has been unable to read a book without experiencing pain in her neck and arm, as well as muscle spasms in her arm. She now uses a Kindle. She is also unable to use a mouse, or type on a computer keyboard for longer than 10 to 15 minutes because the pain in her forearm becomes so intense.
(xi) the pain in her right neck and shoulder is constant "it is a deep aching pain that gets worse if I do something to aggravate it, but it never goes away". The pain in her right arm "ranges from a dull aching pain to a very intense pain that almost takes my breath away". At paragraph 16 of her third witness statement, the Claimant made clear that her pain is episodic, it is nearly always worse in the evenings, there are some "good days when my arm does not bother me much but these are few and far between", and "most days are bad and some are almost unbearable".
- Following her operation on 22nd October 2012 the Claimant kept a pain diary. She was asked questions about it in cross examination which I will address below.
- As for the benefit, if any, afforded by her surgery, the Claimant's evidence (in her third witness statement) is as follows:
"Despite the surgery, I am sad to say that, so far [i.e. as at 8th February 2013], the only difference in my symptoms following the surgery to those that I have set out above, is a slight improvement in the levels of pain in my neck and the absence of any pinching sensation in my neck and shoulder. All the other symptoms and pain that I have described are unchanged."
Although the Claimant is therefore making clear that she still has neck symptoms, the overall purport of her third witness statement is that the pain and symptoms in her right arm are the most debilitating.
- I do not intend to dwell at this stage on the claims for care, gardening and DIY which the Claimant covers in her evidence. My endeavour at this juncture is to describe in a more general way the Claimant's evidence in relation to her levels of pain and symptomatology.
- In her fourth witness statement dated 18th December 2014, the Claimant stated that her symptoms were unchanged. Helpfully, she provided a list of "daily activities that cause me pain in my neck/right arm/right hand" and a further list of "activities I cannot do".
- By the stage the Claimant was completing her sixth witness statement on 21st December 2015, the overall impression is that there had been some measure of improvement. The Claimant had been undergoing CBT, deep tissue massage and acupuncture, and "whilst I am still in a lot of pain, I do feel that I am coping better with it". On the other hand, there are entries in the Claimant's pain diary which indicate that she still has bad days with intense pain.
- The Claimant's seventh witness statement addresses the surveillance evidence, and I have taken it into account in that context. In her eighth, and last, witness statement she brings the court up-to-date with her current physical and psychological state. My interpretation of her evidence is that her CBT sessions and deep massage therapy are continuing to bring about some benefit, although she still experiences episodes of pain. She continues to work in a voluntary capacity as a local education authority governor at her local school, and I can discern that this has improved her sense of self-worth. However, she has difficulty in working for long periods on a computer. The Claimant's DWP disability assessment has been reduced to 14%. Finally, the Claimant has explored the possibility of working part-time on a limited basis.
- It is clear that the revelation of the surveillance evidence and the adjournment of this trial, from April to November, has had an adverse effect on the Claimant's physical and mental health. She has lost weight and is now somewhat anxious and, as her mother says, "paranoid". I regret that this has happened and will factor it into my quantification of general damages. However, I believe that these deleterious consequences will cease soon after the Claimant reads this Judgment.
The Surveillance Evidence
- I heard evidence from Mr Michael Monks and Mr Richard Fullerton, who undertook the covert surveillance of the Claimant using digital cameras. There are obvious difficulties inherent in obtaining evidence of this nature, not least the risk of being spotted by the "subject" (as the surveillance logs describe the Claimant) and ordinary members of the public.
- These witnesses were cross examined as to why they did not manage to film the Claimant on various occasions which might have revealed evidence of value: for instance, outside her home (when loading her car etc.); at the supermarket checkout; and in the supermarket carpark when loading her car with bags of shopping. Overall, I was satisfied that Mr Fullerton in particular (the point did not arise to the same extent with Mr Monks) had sound operational reasons, at least from his perspective, in not attempting to film the Claimant on these occasions. There is no basis for drawing an inference that these witnesses decided not to film something which they knew would have assisted the Claimant's case.
- It came out in evidence that five digital files are missing: in other words, that five files have, for whatever reason, not been downloaded onto the head office computer of Robertson & Co, the entity under whose auspices the evidence was obtained. In my judgment, no adequate explanation has been given for that deficiency. Mr Colin Mendoza for the Claimant submitted that the integrity of the covert surveillance evidence has therefore been impugned, and that I should attach little or no weight to it. I think that this really amounts to inviting me to speculate as to what the missing files might have contained, assuming that they do/did contain something, and I am not prepared to do that. Mr Mendoza did not invite me to draw an adverse inference from the absence of these files that is to say, to conclude that there must be something in them which avails the Claimant. Having said all of this, I fully accept and understand that evidence of this nature has intrinsic limitations, not least because (a) it represents a series of moving snapshots, and (b) it always needs to be placed in context.
- There is a regrettable error in one of the surveillance logs. The log for 22nd February 2016 states, at 15:07, "subject exits in the motor vehicle". The DVD does not show this. Indeed, the evidence is that the Claimant had an appointment with her message therapist, Mr Nick Heasman, between 14:00 and 14:55 that afternoon, and then went straight to school to collect her children. In my judgment, if evidence of this sort is going to be deployed in court, a greater level of care than was exercised in this case should be taken to ensure its complete accuracy.
- There is an even more regrettable error in Dr Munglani's report dated 31st March 2016 when he describes the Claimant as carrying a child (on 22nd February 2016, timed at 15:30). I have difficulty in understanding how an error of this nature could have been made. Although the piece of footage is of brief duration, and notwithstanding that its interpretation has been complicated by the (appropriate) pixilation of children's faces, I consider that Dr Munglani's opinion comes close to straying into wishful thinking.
- The surveillance evidence lasts about 70 minutes and I watched it carefully in my room before the trial started. Since then, various parts of it was played in Court for the purposes of cross examination, and whilst reflecting on this case I have taken the opportunity to re-play sections of the evidence as I have seen fit.
- I have mentioned that the evidence comprises five separate days of observation, although the first of these days was half-term and the Claimant did not leave her house. Thus, we have three consecutive days, and then the final day about a fortnight later. The parties have also prepared an agreed Schedule of Surveillance evidence, the contents of which I bear in mind, although for plain and obvious reasons I must focus on (a) what the footage shows, (b) the Claimant's explanations for that footage, and (c) any expert interpretation of it.
- The surveillance evidence depicts a range of mundane, unremarkable activities: including, for example, the Claimant driving her car to and from school; dropping off and picking up children; chatting with fellow mums in the street outside school; shopping in a local supermarket; and (on two occasions) sitting in a café area, enjoying the company of friends.
- I have used the epithet "mundane" without any intended disparagement. A lot of what one sees is consistent with a young woman who appears to be free from pain, discomfort and functional compromise. For example, the Claimant is seen to remove school bags from her car boot she does this with her left hand and then transfers them to her right. These are the sort of bags children at primary school use to carry an exercise book or something similar. It is clear from the DVD that the two bags in question were light. The Claimant is seen chatting with a fellow mum, standing by the side of her car. The conversation appears animated, and the Claimant (to my eyes at least) is moving her head in rotation, extension and flexion relatively freely. The Claimant is seen sitting down in a café with her younger daughter, then aged 4, and a friend. The child, as children are wont to do, wants to get onto the Claimant's lap, and the Claimant is seen moving her across, from right to left, supporting some of the child's weight with her right hand. Further, the Claimant is seen shopping in Tescos, manoeuvring a trolley (but not one of the big trolleys one finds at this and similar supermarkets) around the aisles. On two occasions the Claimant reaches up and removes from the shelves with her right hand what appear to me to be quite small items.
- I could continue to describe the DVD footage in similar vein, and I bear in mind the Claimant's more detailed explanations in her seventh witness statement and as given in cross examination. Of course, I have to evaluate the surveillance evidence in the light of all the evidence I have read and heard, and not in isolation.
- I take into account the fact that the surveillance evidence could have been more valuable had the hidden camera been trained on the Claimant at key moments. For example, it would have been helpful to have seen the Claimant at the supermarket checkout, how she removed items from the trolley onto the moving belt, and how the items were placed into shopping bags after having been scanned. The absence of this evidence is not suspicious, in the sense that I acquit the surveillance operatives of foul play, but it does leave an obvious lacuna. I cannot fill that gap by speculation.
- As I have said, the surveillance evidence shows on many occasions relatively free and fluid movements of the Claimant's neck and right arm. As against that, I take the Claimant's point that it also shows on many occasions her appearing to "scrunch" her shoulders as if to loosen them in discomfort. Although this movement might be interpreted as being neutral (because some people move their shoulders in this manner out of habit, and not out of pain or discomfort) I accept the Claimant's explanation for the scrunching. The lifting of the Claimant's daughter indicates that she is physically capable of lifting 17-18kgs. (on my reckoning) over a short distance, without obvious discomfort had any been registered, the Claimant's friend sitting across the table from her would have been seen to evince an empathetic reaction. On the other hand, the distance was short, and the movement was more across than up. Further, the Claimant was of course bending to her daughter's will, regardless of any pain.
- The Defendant's best point, in my judgment, is that the DVD portrays a rather different comportment and demeanour in this young woman, when compared with much of the expert evidence in this case, and with what I could see from the bench. The Claimant in the witness box seemed to me to be rather depressed and despondent, and was moving her head, shoulders and right arm around in a manner indicative, or at least suggestive, of discomfort. The relatively free and fluid neck movements, visible on the DVD, were not visible from my vantage point of the Claimant in the witness box. Late on in her cross examination, when the Claimant became slightly more animated and voluble in response to Counsel's probing questions about the DVD, I felt that she "loosened up" somewhat in both the literal and metaphorical senses of that expression.
The Cross Examination of the Claimant
- I should begin with the manner of the Claimant's presentation throughout her evidence (i.e. lengthy cross examination and relatively brief re-examination). The Claimant took the Bible in her left hand to take the oath, but so did at least one other witness. More significantly, I noted that throughout her evidence the Claimant tended to favour the use of her left hand for turning over pages and taking any one of the nine trial bundles she was asked to look at from the makeshift shelf to her right. She did not move her neck freely and fluidly at any stage, although (as I have said) she loosened up somewhat as the cross examination progressed. Moreover, there were occasions when the Claimant seemed to be in some discomfort, if not pain, when she was moving her hands to touch or massage her right shoulder region.
- In cross examination, the Claimant agreed that when she is in pain, and aware of people watching her, she tries to use her left hand where she can.
- The Claimant was asked about the 50% improvement in her symptoms by October 2007, in the context of a care claim for 9.5 hours a week and her being back at work. The Claimant explained that her duties were very restricted and that, even with a 50% improvement, there was still a lot of pain.
- The Claimant was asked about the health questionnaire she completed on 8th April 2008 in relation to her job application at the Eastbourne hospital. One of the answers she gave in the questionnaire was as follows:
"neck injury 2007 painkillers. Off work for one month due to pain (+ physio recommended). No problems now"
The claimant was referred to at least four other answers which indicated, in similar vein, that she was now symptom-free. She also had a telephone conversation with her prospective employer in which she is recorded as having stated, "has been pain free re. neck for several months. Currently pregnant, feels well".
- Clearly, the Claimant was caught on the horns of a dilemma. These answers were not consistent with the case she was now advancing. She accepted the obvious lack of congruence and told me that she knew that she would not be employed if she told the truth. Her mitigation was that she did feel that her injury was getting better, and she was receiving reassurance from her doctors to that effect.
- In my judgment, it is impossible to assess this fragment of evidence in isolation, particularly if I were minded to hold that the employment questionnaire accurately recorded the true state of her functioning. In fact, I am completely satisfied that it did not. There is a plethora of evidence, certainly leading up to her operation (if not beyond), clearly indicating that the Claimant was not pain-free and that she was experiencing a functional deficit. She would not have submitted herself to major neck surgery if she knew that she did not need it. I find that the Claimant lied in order to put herself in a better position to secure a job that she really wanted.
- Logically, therefore, the health questionnaire throws little light on the Claimant's level of functioning in April 2008. It throws some light on it because I do not believe that she would have applied for a job the responsibilities and demands of which she knew that she could not fulfil. It is also capable of throwing light on her propensity to dissemble should the need arise, although I place the obvious marker down that there is a significant difference between lying to secure a job and lying to secure substantial damages in the High Court.
- The Claimant was asked about her examined qualification in Cardiac Rhythm Device Therapy which she passed in September 2008, when she was 35 weeks pregnant. The examination last five hours and entailed the use of a computer mouse. The Claimant told me that she found this difficult, and used her left hand.
- The Claimant was taken to entries in her GP records for 2008 which, it was put to her, were silent as to any complaints of neck and arm pain. The Claimant accepted the proposition that was put to her, although I have noticed an entry for 29th August 2008 which mentions neck symptoms.
- Unsurprisingly in my view, the Claimant was asked about paragraph 5 of her third witness statement (see paragraph 36 above) and her evidence that either her first witness statement had dramatically understated the extent of her symptoms, or they had worsened. The Claimant could not say which of these possibilities was correct. In one obvious sense, she was consistently adhering to the position she had adopted in February 2013, and the lapse of further time will have contributed to her dubiety; but I confess slight concern that the Claimant could not say what the position was. Overall, however, I believe that the correct interpretation to be placed on this is that the Claimant's perception of herself, and of the extent of her pain and disability, has modified over time.
- The Claimant was asked about her current pain and symptom levels. Overall, she accepted (as she had done in her sixth witness statement) that there had been an improvement and that her pain levels fluctuate, but she maintained that there is constant pain in the neck and shoulder area.
- It was put to the Claimant that parts of her pain diary could not have been contemporaneous because they related to the period of time when she was in hospital, recovering from the October 2012 surgery. The Claimant said that her parents wrote notes at the time, although she could not recall seeing them and "should imagine that [the diary] was typed up for me". In my view, the Claimant's evidence was unsatisfactorily vague on this issue, and it should have been covered with greater care and precision in her witness statement. This causes me to have some doubts about the accuracy of her pain diary, although those doubts have not ultimately proved to be decisive.
- Quite properly, the Claimant was closely questioned about Mr Lam's two clinic letters (see paragraphs 18 and 20 above) which stated that her neck pain and symptoms had resolved (one of the letters said so expressly, the other was slightly less clear owing to an error in the syntax or typography). The Claimant's evidence was that she told Mr Lam that her neck felt slightly better. When pressed about the line, "Lorna neck feels great and very mobile after her surgery", the Claimant tried to persuade me that this meant, "felt great to him [i.e. to Mr Lam]". I do not accept that explanation, and find as a fact that the Claimant's neck pain (as opposed to right radiculopathy) had substantially improved after the operation. However, I also find as a fact, basing myself on Dr Valentine's evidence (see below), that the Claimant's neck problems returned at some later date, albeit not to the same degree of severity. I have already noted that the Claimant herself considers that her main problem is her right arm.
- The Claimant was closely cross examined by Mr Mooney on her list of activities (see paragraph 41 above). The overall purport of her evidence, and not all of it was consistent, was that (a) she does not abstain from using her right hand/arm; (b) there are many activities where, when she thinks about it sufficiently to exercise a conscious preference, she uses her left hand/arm (e.g. mowing the lawn; carrying heavy dishes; using a telephone); and (c) on occasions when she does use her right hand/arm (e.g. applying make-up; washing her hair which, for a right-handed person, would be difficult to carry out with the left hand), she may experience pain at the time, if not later on that day. It was put to the Claimant that she was modifying her evidence to fit the surveillance material. I bear that submission in mind when I come to reach my conclusion on that particular seam of evidence.
- The Claimant was asked about entries in her recent pain diary which indicate, if they are correct, that she is sometimes in severe pain. I was not altogether convinced by the manner in which the Claimant answered Counsel's questions at this stage of her cross examination. She took far too long to accept that her diary speaks of "significant" continuing symptomatology. This may have been because she understood that the timing of her completion of the diary was so close to the surveillance evidence. The Claimant denied that there had been any sudden and dramatic improvement.
- The Claimant was asked a number of questions about her Schedule of Loss (a document which has undergone excessive amendment and expansion during the course of this litigation). There is a relatively modest claim for a Fisher Price Cradle, used for rocking a baby. The Claimant denied that she would have bought one anyway, but in my view this is exactly the sort of contraption in which parents place their very young children so that they can be rocked/pacified without difficulty. I was surprised that this particular item was included. There is also a claim for what seems to me to be a particularly expensive light-weight buggy (£485). In my view, any parent of three young children would buy such a buggy, and cheaper models are available.
- The Claimant was asked questions about what her career would have been but for her accident. Her witness statements plot an upwards trajectory through the profession, and I have no doubt that the Claimant rightly aspired to achieve this, at least in principle. I fully believe her when she told me that she has lost the career which she loved. However, the available evidence as to how that career would or might have progressed is somewhat sparse. The Claimant had not been in her job for very long when her accident happened, no employment assessments or progress reports are available, and the chances of promotion into the higher echelons of the profession are unclear. The Claimant's original schedule had accepted periods of reduced earnings in any event, and the possibility of moving to flexi-working; but the latest schedule makes no such (realistic) concessions. Further, the Claimant told me that she had no way of knowing what would have happened but for this accident, although she was clear that she would have returned to work 6 months after the birth of her first child. Finally, as was successfully explored by Mr Mooney, an excessive claim has been advanced for loss of earnings from private practice (over £140,000) when there is no documentary evidence to support the quantum of the claim, and the limited material indicating the figures supplied to HMRC suggest extremely modest figures - for the year ending 5th April 2007, the tax paid was £1,311.20 (on the basis that the whole of these private practice earnings was taxable at the basic rate, probably 23%, the gross earnings are in the region of £1,800).
- It was put to the Claimant that she was consciously exaggerating her pain and symptoms for financial gain. This was denied.
Other Evidence of Fact
- I heard from the Claimant's father, Mr John Webb, and her mother, Mrs Christine Webb.
- Mr Webb was an impressive, measured witness whose evidence I accept. He told me that he helps out with his three grandchildren far more than he would have expected to do had his daughter been fully fit. He does most of the gardening, and provides emotional and moral support.
- It was put to Mr Webb that the Claimant is now living to all intents and purposes a normal life. Mr Webb said that this was very far from the case. His daughter is in constant pain, and "we have to give a lot of help for her to cope".
- Mrs Webb has provided the Court with three witness statements. According to paragraphs 5 and 6 of her latest statement:
"I have been with Lorna when her hand suddenly claws and it is very scary for her. She has dropped countless things. I have seen her drop plates, cups and cans of coke in my house from her right hand. Recently I have seen a definite improvement in that she has not been dropping so much
I have also noticed that her right hand does not shake as much as it used to
I often see Lorna massaging her forearm, which she tells me she does to ease the pain and relax the muscles. You can tell when she has been doing this as it leaves bruises on her arm. I can also see when her neck is very stiff. I notice this because she tends to turn her whole body to look to the side instead of just her neck."
- Mrs Webb does not consider that her daughter is exaggerating her symptoms. According to paragraph 16 of her witness statement:
"Having watched the surveillance evidence I do not think that it is representative of Lorna's life. For example, it does not show how often she either goes home or to our house to rest because of the pain she is in. As Lorna's mother, I have noticed certain movements Lorna does, which she tells me is to relieve her symptoms, which she did before the accident and does not realise she does so regularly now. One of those is that she scrunches her shoulders. It can be quite a subtle movement but I am so used to seeing it."
- Mrs Webb was clear that her daughter remained "terrible" after her surgery in October 2012. In my view, that assessment is not borne out by Mr Lam's clinical letters, at least as regards the range of neck movement and the degree of pain in that region. I have touched on the point that the Claimant's neck problems returned after a period of time, and I will return to it later.
- In cross examination, Mrs Webb told me that her daughter tries to lead a normal life, and that she is "one of the bravest, most stoical people I know". She has come to accept the condition she has been left with. Mrs Webb was clear that, although she would have been a "hands-on" grandmother in any event (my term, not hers), she would not have been doing the laundry, household chores etc.
- I have slight reservations about some of Mrs Webb's evidence, but I attribute those to her personality and temperament: not all parents are able to exhibit the degree of detached sang froid of the Claimant's father, particularly in a forensic setting. Discounting her evidence to some extent (i.e. making allowance for an element of non-deliberate hyperbole), I accept the majority of what she says.
- Aside from the evidence from the Claimant's parents, the Defendant has agreed that I may take as read the evidence from a number of her friends. In this regard I note, in particular, the evidence from Gemma Bolton that on good days the Claimant is "bubbly and chatty". That is the impression I have gathered from the DVD evidence, in contrast with, for example, her demeanour in court.
The Expert Evidence
- I received evidence from experts in a range of disciplines: orthopaedics; pain medicine; and psychiatry. The parties were in agreement that it was unnecessary for the psychiatrists to be called, and I have therefore taken their evidence as read, recognising that there are minor divergences of view between them.
- In my opinion, it is unnecessary for me to set out the expert evidence in the same comprehensive and systematic way as I have done in relation to the Claimant's evidence. There is an excessive quantity of reports and joint statements in this case, but the key issues were properly explored in cross examination. As I indicated earlier, I really need to boil this evidence down for present purposes. In order to achieve this, I have of course read, and on occasion re-read, the voluminous files of evidence. Given that the written evidence remains available in its current form, I also propose to focus more on the oral evidence.
The Orthopaedic Evidence
- The orthopaedic experts in this case were Mr Marc Patterson FRCS for the Claimant and Mr Michael Cass FRCS for the Defendant. Mr Patterson is the more senior man although he has not operated on cervical spines. Mr Cass is a consultant spinal surgeon with an interest in the cervical spine. Mr Mooney made much of this distinction but in my view it carries little weight. Mr Patterson's general orthopaedic work takes him along the whole of C1-C7, and I was entirely satisfied that he has considerable knowledge and expertise in this area.
- It is helpful at the outset to record both experts' objective findings in relation to the Claimant's neck. I set these out in chronological order, in abbreviated form:
(1) June 2009 (Mr Patterson): extension sore. Rotation to the right and lateral flexion to the left was 50% (of normal). Other movements were reasonable. Full range of shoulder movement. Movements when she lifted her right arm were normal.
(2) March 2011 (Mr Cass): constant neck pain, right shoulder blade region and right upper limb, exacerbated by any movement or lifting. The findings on examination were unremarkable, although there was a moderately mild Spurling's test for cervical nerve root tension.
(3) June 2001 (Mr Patterson): constant neck pain. Neck movements were normal; full range of shoulder and arm movements.
(4) December 2013 (Mr Patterson): neck symptoms were exactly the same. Mr Patterson's understanding (but query whether he had carefully examined the clinic letter) was that in January 2013 the Claimant had no relief from her symptoms but Mr Lam felt that it was too early in the recovery period to give a full prognosis. Mr Patterson does specifically refer to Mr Lam's examination in clinic on 8th October 2013, where the persistence in the Claimant's right C6 nerve pain is mentioned.
(5) March 2014 (Mr Cass): Claimant complaining of ongoing axial neck pain, worse on the right. There was also pain in the right shoulder cape and radicular pain down the right arm in the hand and two fingers. On examination, the range of neck movement was somewhat limited. Lateral rotation and flexion to both sides is 50-70% of normal; flexion/extension between 70-100%. There was no evidence of spasm although the Claimant was acutely sensitive to the touch and she found the examination extremely uncomfortable.
(6) September 2015 (Mr Patterson): good flexion and extension of the neck, and less discomfort on extension. Rotation normal; lateral flexion both to right and left normal. Full range of movement of the shoulders and upper limbs. However, the Claimant was still complaining of neck pain and, primarily, radiating pain down her right arm.
(7) September 2015 (Mr Cass): continuing pain down the right side of her neck. Marked anxiety in relation to her neck symptoms. Global reduction of movement in the cervical spine, in the order of 25-50%.
- It is apparent that there is a lack of complete consistency in the Claimant's presentation, particularly in September 2015. Further, I note the manner in which the Claimant apparently presented to Mr Lam on two occasions, at least in the context of any ongoing neck symptoms. Mr Cass has tended to note more significant restriction of neck movements than Mr Patterson. The reasons for these divergences will need to be examined, but on the face of things one would have expected a brazenly dishonest Claimant to have come across as more severely disabled in front of a doctor whom she had reasonable cause to imagine would be more sympathetic to her case.
- Both experts are agreed that there is no visible sign of muscle wasting or loss of muscle bulk on the right side. Given that the Claimant is not suggesting an inability to use her right hand and arm, I agree with Mr Patterson that no significance attaches to this.
- Both experts have experience in using Pat slides and were therefore entitled to draw on that for the purposes of advising the court. In my view, however, the manoeuvres they were describing did not wholly align with the Claimant's photograph and oral description, showing her arms fully outstretched.
- Mr Patterson's evidence was that a significant amount of lifting is/was involved. Further:
"I think that there was considerable force on the cervical spine, particularly if she was wearing a lead gown. It is a very unnatural position, with an extended cervical spine, a flexed lower spine, in getting the patient from the bed onto the Pat slide. It was bending forwards and having to lift the patient. Looking to the right is not a significant complication
the lead gown puts additional weight on the shoulders; it increases the weight on the spine but I wouldn't want to over-emphasise that. It also makes it more cumbersome for the transferor to lean forward, to lift and move towards the table."
- Later he said this:
"The lead gown is very tight across the neck. If one is leaning forward, pressure is placed on the shoulder and neck itself. I disagree with the proposition that all of the weight/pressure is on the back. There may be significant pressure and awkwardness on the upper torso. We don't know the forces."
- It was also Mr Patterson's evidence that the Claimant's cervical spine must have had signs of degeneration, although there is no MRI evidence to back that up. In any event, the degeneration might have been microscopic. The reason why Mr Patterson has drawn this inference is that a normal disc does not prolapse, a proposition to which both experts in this case have fully subscribed.
- In my judgment, Mr Patterson has not been altogether consistent in his evidence as to the (inferential) degree of degeneration. In his first report he stated that it would be very unusual to see a significant amount of degeneration in a normal 25-old woman. Later, in a joint statement he opined that the Claimant's C5/6 disc could have been anything from a normal to a degenerate disc, with neither term being defined. When cross examined on the topic, Mr Patterson was clear that the degree of degeneration could not be quantified, from which I deduce that it may have existed within a wide potential range with "normal" not being within that range. Mr Patterson was also asked about the 2002 whiplash injury. He, in common with Mr Cass, said that it might have played a role in the degenerative process (in his March 2016 report he went further), but the overall purport of his evidence was that this could not be objectively verified. Clearly, genetic factors might well have played an (equally unquantifiable) role, and to my mind it is unnecessary to reach a conclusion about the causative potency, if any, of the earlier RTA.
- Mr Patterson remained adamant that the forces involved must have been significant (i.e. substantial), although as with the degree of degeneration involved - he could not quantify these, nor could he specify the actual intra-discal pressures.
- Faced with two imponderables, namely the extent of the pre-existing degenerative changes in the Claimant's C5/6 disc and the quantum of force/pressure entailed in this particular manoeuvre on 22nd March 2007, one might have expected Mr Patterson to say that he simply could not opine with any precision if, and in the alternative when, the disc would have prolapsed in any event. Instead, however, he sought to adhere to two propositions. His primary contention was that, on the balance of probabilities, the Claimant's disc would not have prolapsed at all. In a later report, and then in a joint statement, he placed the risk of prolapse at 49.5%. In his oral evidence, he explained that this was the upper end of the range. In the alternative, Mr Patterson stated that the risk, if it matured, would not have arisen for 15-20 years (at an earlier stage in the case he said, on two occasions, "a long time", but when asked to be more concrete he provided that range). Mr Patterson justified both approaches by recourse to his considerable experience.
- Common sense, not always a safe lodestar in the realm of scientific debate, would tend to suggest that there must be some sort of relationship, not necessarily linear, between the degree of pre-existing degeneration on the one hand and the amount of force entailed in the event or episode which engenders the actual prolapse on the other. Put bluntly, the greater the degree of degeneration, the lesser the force needed to cause the prolapse. The converse is also the case. If one knows the degree of pre-existing degeneration, inferences are capable of being drawn about the degree of force required even if the latter is unknown. Specifically, if there is little degeneration, one might infer that the force entailed would have to be very substantial to cause the disc to prolapse, other things being equal. If there is a highly degenerate disc, the force required to prolapse the disc would be very much less. By parity of reasoning, the same sort of inferences could be drawn if the degree of force is a given but the degree of degeneration is unknown.
- I set this out at some length merely to illustrate how obvious the point is; but Mr Patterson did not accept it, even hypothetically. When I asked him about it, less elaborately perhaps than as set out above, Mr Patterson stated that "because she is a young woman, this particular force [i.e. significant force] is more likely to have caused her disc than a minor incident".
- Mr Patterson did not make the point that, notwithstanding the obvious logic of the foregoing analysis, if the amount of degenerative change and force involved are both unknowns, then relevant inferences cannot be drawn. Of course, had he made that point then the validity of his 49.5% and 15-20 year figures would immediately have been called into question.
- Mr Patterson was closely questioned about his 49.5% datum point, and told me that his range, which was quite broad, was nearer to 50% than 0. He could not be more specific than that, nor could he provide literature to support it (equally, he said that Mr Cass has provided no literature to support his 12 months). As for the 15-20 years, he said this:
"I cannot produce objective evidence to support it. I am looking at the age of the patient, the estimated state of the disc, the description of the accident, and an assessment of when the disc prolapse may have occurred. There would be a range of opinion on this matter. Not many surgeons would say, within one year."
- My understanding of the logic of Mr Patterson's analysis is that (i) there was a less that 50% chance of the Claimant's neck prolapsing in any event, (ii) it follows that the Defendant's case fails on the balance of probabilities, and (iii) in the alternative, the prolapse would have been 15-20 years hence. I will be addressing the factual and legal premises of (i) and (ii) later, but I need at this stage to recognise that Mr Patterson has equivocated on (i). In the last joint statement (dated September 2016), the following appears:
"11. MP and MC agree that, on balance of probabilities, the Claimant would have suffered from a prolapsed disc in the cervical spine at some point in the future in any event.
MP states if a prolapsed disc were to occur, it would have occurred within 15-20 years. MC's opinion is based on the fact that as he considers a normal physiological load resulted in the prolapse, the prolapse was inevitably going to happen in the short term. MP disagrees and feels that the nature of the incident was directly responsible for the disc prolapsing."
- Mr Patterson was asked to comment on Mr Cass's written evidence to the effect that a consideration of the anatomy of the muscles of the back, shoulders and neck would indicate that no significant force/pressure on the cervical spine (I am roughly paraphrasing at this stage: a more detailed exposition of Mr Cass's evidence is set out below). Mr Patterson's analysis was that Mr Cass's evidence was predicated on the wrong premise, namely that this was a sliding rather than a lifting motion. He said this:
"If one's arms are outstretched, and then lifting, this will lead to an increase in the extension of the neck. The pressure in the disc space and in the cervical spine is increased."
- Mr Patterson's evidence on this issue was not particularly quantitative. I was not convinced that he was aware of normal disc pressures within the cervical spine (viz. 500 kilopascals) or the factor by which full extension of the neck, without more, increases that pressure (to 2,000 kilopascals, i.e. a factor of 4). He did not attempt to quantify the extent to which any additional force on the neck muscles, brought out by lifting or an attempt to lift, might increase that pressure. Mr Cass, as will soon be pointed out, had obviously done his homework on these points. Mr Patterson was also somewhat unconvincing in his endeavour to rely on a methodologically poor paper written by cardiologists, and not therefore appropriately peer-reviewed, which asserted that "wearing a 15-lb lead apron can induce pressures of 300 lb/square inch in intervertebral spaces". This is equivalent to 20,000 kilopascals, which would place an implausibly catastrophic load on the cervical spine.
- Mr Patterson's opinion, in line with Mr Cass's, was that the delay in operating on the Claimant's neck is relevant to the disappointing outcome. He would not accept, and I fully understand his reasons, that there was a 12-month "window" for a good outcome. Mr Lam was reasonably optimistic as to the chances of success; there is no evidence that his procedure was performed in any sub-standard fashion; and, in any event, I would envisage the chances of success as gradually diminishing over time rather than as discontinuous.
- Mr Patterson, in common with Mr Cass, believes that the Claimant will need further spinal surgery at some stage in the future.
- Mr Patterson was asked about the differences in the 2007 and 2012 MRI findings in relation to the C4/5 disc/spine. By implication, the C4/5 region was normal in 2007. However, by 2012 there was evidence of a degenerative disc with an annular tear. In answer to my question, Mr Patterson agreed that this could be interpreted as evidence of a pre-existing degenerative process (supporting the proposition that the Claimant's neck had a propensity to prolapse), but (equally) it could be interpreted as being the result of unnatural forces/pressures in the disc space immediately below. Or, it could be a combination of the two. Understandably, Mr Patterson had no scientific basis for opining which of these interpretations was applicable here.
- There was some debate on the written evidence as to the significance of the Claimant's prolapse being a herniated nucleus polposus rather than a degenerative disc complex. The experts were wide apart on this issue, but it was not explored in cross examination with either of them. Although I did not altogether follow the logic of Mr Cass's approach, I do not propose to enter into this debate.
- Mr Patterson has commented on the surveillance evidence. In his overall opinion, its utility is very limited. It does not show the Claimant performing any activity she specifically stated she is unable to do. In short:
"I have not seen anything in the surveillance evidence to suggest that [the Claimant] has not get a physical disability or is exaggerating her disability. In my view, exactly the opposite is shown, that [the Claimant's] activities of daily living improved over the nine-year period since her accident and 'is getting on with life and managing to do as much as possible, which is what any normal, sensible human being would do'.
I do not agree that [the Claimant] is capable of full-time working at present and would draw attention to the Joint Orthopaedic Statement [October 2015] when we say that it is not out of the question that some degree of employment may be possible in the future, although we did not comment on what that employment would entail and when it would be undertaken."
- Turning now to Mr Cass's evidence, a number of points should be made at the outset. He informed me that he had never given evidence in a courtroom before, a point which Mr Mendoza felt was significant although in my view it rather cuts both ways. I therefore regard it as neutral. The first letter of instruction to him (by solicitors no longer involved in this case) was inappropriately worded and created a risk of priming the expert to prejudge the issue of acceleration of injury. Mr Cass cannot now recall whether he read that letter, but in my view he must have done. I have some concern about this, but have ultimately concluded that he has not approached this case with a closed mind. A point in his favour, although it militates against the Defendant's position more generally, is that he has never doubted the honesty and genuineness of the Claimant.
- On the other hand, I think that Mr Cass should have referred in his reports to the documentary materials with which he had been provided to inform his opinion. At the time of his first report, only the Claimant's first witness statement was available (confusingly, the letter of instruction refers to witness statements in the plural). This does refer both to a lifting and a pulling motion. At a later stage Mr Cass was sent a report from an expert ergonomist which has not been disclosed. A District Judge has ruled that expert evidence in this discipline would not assist. I disagree with that viewpoint, but my concern at this stage is to note that it is possible that Mr Cass's opinion on hypotheticals (in the sense of what would have happened anyway) might have been influenced by his reading of this report. On the other hand, he formed his opinion that the Claimant's neck was "primed" to prolapse in the short-term, say 12 months before he read that evidence.
- In March 2011 the Claimant appears to have given Mr Cass some sort of account as to how her accident happened. It is somewhat brief and vague. Mr Cass certainly seems to have gained the impression that "during the transfer
she was pulling the patient across". I do not think that this fairly captures the entirety of the Claimant's evidence. It may be what the Claimant told Mr Cass on the day: this must be unclear, because Mr Cass's manuscript notes have not been provided, and in any event the Claimant might have believed, with good cause, that Mr Cass had been fully briefed. One simply does not know. However, Mr Cass is open to a measure of criticism in not referring to the Claimant's written evidence. He might have said, but he has not, that the Claimant's account to him differs from her written account.
- Mr Cass's opinion in his first report was that this was a "relatively nondescript event, namely sliding a patient on a Pat slide". This "would probably involve her neck being put into mild extension at most, with no axial loading of the cervical spine". The resultant increase in the core pressure would have been "within physiological norms", leading to the inferential conclusion that, although this event was probably the precipitating cause, there was a "very high likelihood of this injury occurring within a fairly short timeframe regardless of the index accident". Subsequently, Mr Cass has said "within 12 months".
- At the time of writing his first report Mr Cass found no inappropriate signs and symptoms. The large disc prolapse at C5/6, with significant encroachment upon the right C6 nerve root, was (I infer) a reasonable explanation for the Claimant's symptoms.
- At the time of the first joint statement, a number of inconsistencies in Mr Cass's analysis may be detected. Subsequently he has corrected two errors and I do not take issue with those. However, there is a lack of clarity in two important respects, and potential conflict with later evidence. In the first joint statement Mr Cass said that healthy discs can prolapse, that there is no objective evidence to suggest that the Claimant's disc was degenerate (i.e. no MRI scan) and that it is "very possible" that the disc was normal. (To be fair to Mr Cass, I have already noted that Mr Patterson has signed up to the proposition that the range of reasonable expert opinion in this regard is between a normal and a degenerate disc). In a later joint statement, Mr Cass has come round to the view that there must have been some degree of pre-existing degeneration. To my mind, the correct analysis is unlikely to be overly complicated. There may not be direct evidence of disc degeneration, but the solid inference must be that the Claimant's C5/6 disc had some pre-existing degenerative changes because normal discs prolapse only very exceptionally. Exceptional forces might cause a normal, young disc to prolapse, but no one is saying that the forces in play on this occasion were such.
- There is also a lack of clarity in one of Mr Cass's further answers in the first joint statement:
"Whether or not she had underlying pathology in the C5/6 disc, what he was actually saying was that without the index accident it is unlikely that she would have developed a prolapse in that disc. He feels the index incident was important in the development of the prolapse."
- Mr Cass did not seek to correct this answer (to the set agenda) when he came to review this joint statement at a later stage. I am aware that at the material time Mr Cass was in the midst of an appalling personal tragedy, and I accept that his mind probably was not wholly on the minutiae of this topic. This answer is not consistent with another of his responses, once corrected (and a "no" added); nor is it consistent with his earlier and subsequent evidence. I am not persuaded by Mr Mendoza's submission that I should fairly attach weight to it.
- In his subsequent written evidence to the Court, Mr Cass continues to credit the genuineness of the Claimant's symptoms. In March 2014 he opined that Mr Lam's surgical intervention "has decompressed the spinal canal and the spinal nerves" (a reasonable inference to draw at that stage, albeit subsequently contradicted by the December 2014 MRI scan), and believed that the Claimant's enduring symptomatology was referable to the "the very significant delay between the onset of the nerve compression due to the prolapse and the final surgical intervention". I asked Mr Cass to clarify this for me, and he gave the following helpful evidence:
"There are three possible reasons for continuing pain:
1. The longer there is pressure on the nerve, the more likely it will be that there is permanent damage to the nerve.
2. With any operation there is inevitable scarring. You can get perineural scarring, tethering to the adjacent structures. As a result, the nerve does not have its normal, free "glide" and there is pain.
3. There may be slight narrowing of the foramen (unlikely here).
I would also add:
4. Chronic pain syndrome."
Dr Jon Valentine, the Claimant's pain expert, considered that this was reasonably cogent evidence, and so do I. In cross examination, when asked about the Claimant's radiculopathy, Mr Cass agreed that this was neuropathic pain.
- In September 2015 Mr Cass considered that the Claimant's symptom pattern would probably continue. In the final joint statement (September 2016) he stated that he believed that the surveillance evidence, which has its limitations, showed "minimal evidence of disability" and "does not show any substantial limitations in the listed acts [as per paragraph 41 above]". However, Mr Cass reiterated that he is not now saying, nor has he ever said, that the Claimant is fabricating her symptoms. On the other hand, in his evidence in chief Mr Cass added:
"I am pleased to see that she has got better. She appears to be pursuing a normal life. No disability is displayed in relation to the neck and arm. She is not appearing to show any pain characteristics and behaviour. When she came into the witness box, I was a little bit surprised at the level of disability and discomfort. She was not in that state when I have met her over the years. There is no orthopaedic reason to explain this."
- In cross examination Mr Cass said that he continued to believe the Claimant's account but felt that actions (as shown on the DVD) such as putting on a coat with both arms simultaneously cause a lot of stretch on the nerve roots, and accordingly a lot of pain if there is significant nerve root irritability.
- Mr Cass gave oral evidence about the mechanism and mechanics of the index event. He told me that he has continuous experience of Pat slides, and that "it is a slide rather than a lift
it is not a lifting force; it is a drawing towards or a pulling force". Mr Cass was taken to his unsigned report, dated 7th April 2016, which explains in some detail the muscle groups involved in the back, shoulders and neck. His basic thesis (expressed as an argument, and then as an opinion) in that report was that (i) extension of the neck "is achieved against gravity by a large number of muscles making up the cervical extensor group", (ii) the drawing motion described by the Claimant would involve the muscles operating the thoraco-lumbar spine, the elbows and the shoulders, and (iii) the relevant muscle movements would not exert force across the cervical region.
- Mr Cass was asked whether, if the motion entailed an element of lifting, it would be necessary to revise this opinion. He told me that this would make very little difference because "it would not significantly involve the muscles in the neck". Further:
"Even if she tried to lift, she couldn't lift. The moment [of inertia] on the arms is too great. It is akin to an isometric exercise, or lift, involving just the shoulder muscles. The pressures in the neck would not be affected. The position of the neck in extension is the primary thing causing an increase in cervical pressure."
- In cross examination, Mr Cass was adamant that there could not have been any form of lift. He denied that the Claimant had made a statement of fact as to how her accident occurred; he said that it was a statement of opinion. Mr Cass was convinced that the Pat slide takes the patient's weight out of the equation. He accepted that the patient might "sink a bit" into the mattress. He further explained:
"I disagree that to start the transfer will involve a lifting action. The worse you can do is to draw him slightly up a slope; this is different from lifting. It is not possible to move one's arms upwards. She couldn't lift the patient
the only movement is the slight elasticity of the bedsheet, until the shoulder muscles could do nothing further
my opinion is based on it being a slide, not a lift."
And then in re-examination: "if there was a lift, it would be a tiny amount".
- Mr Cass also told me that he often sees younger patients who arrive in clinic without a clear story of how their discs prolapsed. Genetic factors and smoking are relevant (although it is not the Defendant's case that the Claimant's modest smoking habit should be inculpated).
- Mr Cass was asked about a paper which he had found, An Epidemiological Study of Acute Prolapsed Cervical Intervertebral Disc, Kelsey et al, published as long ago as 1984 in the Journal of Bone and Joint Surgery. In my view, this is not a particularly robust paper; it has methodological limitations; and appears to be examining the extent to which repetitive, relatively low-level lifting was associated with cervical disc prolapse. The surprising finding was that the strongest association was with lifting more than 25 lbs, not heavy manual lifting. The authors' discussion of these findings include the following:
"It is possible, for instance, that tensing the muscles between the cervical spine and the shoulder girdle in order to lift the arm is a critical factor. Another conjecture is that lifting brings about a habitual contraction of the pericervical muscles, resulting in a significant load on the cervical spine and discs."
In my view, this paper provides weak support for its own conclusions, but is helpful to me in a different manner. It explains that, regardless of the epidemiology and the strength of the predicated association, a lifting motion can involve the tensing and contraction of the muscle groups in the region of the cervical spine. In this respect, it may assist me in resolving the dispute between Mr Patterson and Mr Cass on this key question.
The Evidence from the Experts in Pain Medicine
- The Claimant's pain management expert was Dr Jon Valentine, FRCP and the Defendant's was Dr Rajesh Munglani, FFPMCRA. In my judgment, Dr Valentine was an excellent expert witness and Dr Munglani was far from being one. In those circumstances, but without of course accepting everything that Dr Valentine says and rejecting the entirety of Dr Munglani's view, I can be relatively brief.
- In Dr Valentine's opinion, the Claimant's arm symptoms merit a diagnosis of neuropathic pain whereas the neck pain is mechanical, with a nociceptive component. There was a satisfactory biomechanical explanation for the Claimant's radicular pain in particular, as borne out by the December 2014 MRI scan. Further, as I have said, Dr Valentine endorsed Mr Cass's possible explanations for enduring pain (see paragraph 118 above), adding that changes may occur in a nerve after it has been compressed for a long period. That nerve, if damaged, can "fire" spontaneously, generating pain. Additionally, the pathways to the brain are facilitated, thereby heightening the response to adverse stimuli. Finally, the fact that the nerve root injection performed in 2013 did not bring about an improvement in symptoms indicates the presence of chronic nerve damage.
- Dr Valentine emphasised the psychological and social influences in this case. These interact with the biomedical factors, but (on my understanding of his evidence, at least) may serve to enhance and magnify them.
- In their joint statement given in October 2015, Dr Mungani was of the opinion that the Claimant's disabilities were "modest at most" whereas Dr Valentine was of the view that "the Claimant presents with moderately severe levels of disability". Even so, the Claimant in his opinion was clearly still using her right arm, and she "will be able to perform a very reasonable range of activities of daily living, but her pain will continue to have an important impact".
- In his third report to the Court dated 21st April 2016, Dr Valentine informs me that in his opinion there is no discrepancy or mismatch between the Claimant's behaviour on the DVD and her presentation at the time of examination. Overall:
"It is her testimony that she suffers significant chronic pain in her neck and right arm as a consequence of this biomedical condition [Dr Valentine's gloss]
there is no evidence in the surveillance footage that reliably supports the notion that [the Claimant] is exaggerating her physical disability. It is my opinion that there is nothing seen in the surveillance inconsistent with the range of movement [the Claimant] demonstrated in Dr Munglani's video of his physical examination."
- Dr Valentine also points that the Claimant did not exhibit any overt psychological features and pain behaviours at the time of his assessment.
- In the final joint statement dated 3rd October 2016, Dr Valentine said this:
"Dr Valentine would not disagree with Dr Munglani's view that there is no evidence of significant disability in the surveillance footage. However, it is his opinion that [the Claimant] is not seen to be performing a level of physical activity in the surveillance that might cause her to show evidence of significant functional impairment/disability."
In terms of long-term functioning and handicap on the labour market, Dr Valentine was firmly of the view that the Claimant's chronic neck and neuropathic arm pain places her at a considerable disadvantage, and that she is not in any event fit for full-time work. Dr Valentine shared Dr Munglani's view that some further improvement in the Claimant's condition was probable.
- In his oral evidence to me, Dr Valentine was asked to comment on the Claimant's presentation in the witness box. He said that he had studied her continuously, both inside and outside the courtroom. Her presentation, including a disinclination to use her right arm, did not cause him to change his view. His analysis was either that the psychological and emotional aspects of giving evidence served to heighten her pain levels, or she "didn't know how she should be when she got here". My feeling was that it was a bit of both.
- Very fairly in my view, Dr Valentine said in cross examination that pain is subjective, that only the Claimant knows how much pain she is in, and that it must be for the court to decide. He also agreed that he has chosen to accept the veracity of the Claimant's account.
- Dr Valentine was asked about Mr Lam's findings that there was no neck pain when he examined the Claimant on two occasions in 2013. Dr Valentine's opinion was that it is not uncommon to see patients who obtain a successful result, but then the pain returns and becomes chronic and more severe.
- Dr Valentine was closely questioned about the surveillance footage. He agreed that the Claimant had told him that she "avoids reaching up with her right arm because it triggers an increase in her pain". He said that the DVD footage of the Claimant reaching up (for admittedly small items) in the supermarket appears to contradict that. Dr Valentine's clinical finding in February 2015 was of a reduced range of neck movements whereas the DVD footage tended to suggest otherwise. Dr Valentine added that the Claimant told him that she was having a bad day.
- In short:
"I agree that there is a difference on the surveillance. It is a different environment and some time has elapsed. Either she has improved, or she has exaggerated the position (consciously or otherwise, I cannot say [here I am interpolating an earlier answer]). The issue of honesty is ultimately a matter for the court."
- Turning now to Dr Mungani's evidence, I was not impressed with him at all. His oral evidence was prolix and not always on point. He gave me the impression of trying to bring me round to a point of view, rather than advising the court in a moderate and balanced way (c.f. Dr Valentine). His examination of the Claimant, as shown on the short film he took, was perfunctory and unsympathetic; and I do not believe him when he says that he repeated the grip test. I accept Mr Webb's evidence that he did not. Further, there were numerous places in his written evidence where he travelled into areas outside his expertise, being domains from where Dr Valentine quite rightly kept well away. It also emerged during cross examination that Dr Munglani had not examined the Claimant's written accounts with the care that he should have done, although I accept that he was more punctilious by the date of the last joint statement. Further, there were a number of errors in his written evidence which Dr Munglani found it necessary to correct. At least one of these was quite serious his assertion that the Claimant could return to work as a cardiac physiologist.
- Dr Munglani tried to persuade me that there was evidence possibly of right nerve root irritation. On my reading of the December 2014 MRI scan, there is conclusive evidence of osteophytic compression on the C6 nerve root.
- It is unnecessary for me to rehearse all the respects in which I found Dr Mungani's evidence to be unsatisfactory. In his closing submissions, Mr Mooney recognised that he could not seek to place much weight on his opinion save to the extent (and I am adding this point) that it may be corroborated elsewhere.
- There are a number of points which emerge from Dr Munglani's evidence and which warrant mention. He said that during the course of his examination of the Claimant she turned round on several occasions to seek validation from her father, thereby moving her neck. The neck movements appeared to be pain-free. Mr Webb agreed with the basic facts but could not comment on any level of pain. Although Dr Munglani's manipulation of the Claimant's neck was not particularly sensitive to any pain she might have been feeling, none is clearly apparent on his DVD and the range of neck movements was reasonably full. All of this is consistent with Mr Patterson's findings in September 2015. I do not conclude that Dr Mungani's clinical observations, which I accept, lend much support to the Defendant's case.
- I can draw no conclusions from the grip test, particularly in circumstances where, pace Dr Munglani's own evidence, I have found that it was not repeated.
- I think that the following aspects of Dr Mungani's oral evidence merit consideration:
"I accept that she experiences pain. I believe that functionally she is close to normal. I have believed that she is likely to be functioning at a higher level. There is probably exaggeration but not gross exaggeration. Her level of functioning is more fully explained in her sixth witness statement."
This is reasonable evidence, although I think that it understates the position. Contrast what Dr Munglani said in his third supplementary report to the court dated 31st March 2016:
"In my view the Claimant shows no evidence of disability whatsoever on the surveillance. I fully accept she is not seen digging up a road or throwing a javelin for example
When it was suggested to Dr Munglani that he was being flippant, he said that he was trying to help the Claimant. Then in re-examination Dr Munglani was invited to explain the apparent improvement in the Claimant's symptoms, starting in 2015. He said this:
"There are three possible explanations: (i) the massage therapy; (ii) the CBT; and (iii) the Claimant feels challenged by the mismatch and is therefore coming round more to the experts' view as to her level of symptoms [here, I am paraphrasing]."
The Psychiatric Evidence
- Given the modest divergence of opinion between Dr Cooling FRCPsych for the Claimant and Professor Fahy FRCPsych for the Defendant, the parties agreed that it was unnecessary for these experts to be called to give oral evidence.
- In Dr Cooling's opinion, the Claimant has been suffering from symptoms of depression and low mood which, on my reading of his evidence, are contributing to the chronicity of her pain. In Professor Fahy's opinion, the Claimant has been suffering from at worst, a form of adjustment disorder. The Claimant certainly appeared somewhat depressed and flat to my untutored eyes, but I recognise that the impact of the surveillance evidence and the stress of the ongoing litigation cannot have helped. I was seeing the Claimant in an entirely unnatural and artificial environment.
- Dr Cooling does not consider that the surveillance evidence is inconsistent with the Claimant's presentation elsewhere, although he recognises that issues of credibility and reliability are matters for the Court. Professor Fahy points out, quite forcefully in my opinion, that the surveillance evidence demonstrates none of the pain behaviours he and other expert witnesses have observed (albeit, I would add, not by all of the experts and not on every occasion).
The Rival Contentions
- In a realistic, attractive and well-presented oral argument, Mr Mooney submitted that Mr Cass's analysis of the forces and pressure entailed in his routine, nondescript manoeuvre should be preferred to Mr Patterson's jejune version, and that it demonstrates that inferentially the Claimant's neck was "primed to pop" at any stage. The inference arises because the forces involved were not substantially greater than the forces entailed in merely extending the neck. Mr Mooney characterised Mr Patterson's approach as being "unscientific" in that his reasoning assumed that which needed to be proved: he appeared to be saying that because the Claimant was a young woman with little previous neck pain, it should be inferred that high neck pressures must have been entailed in the index event.
- Mr Mooney relied on the Claimant's own evidence that this was a routine manoeuvre carried out without difficulty on previous occasions. He also submitted that the difference between a lift and a pull should be seen as one without a difference because, on Mr Cass's argument, a lift in fact creates no greater neck pressure than a pull. Mr Mooney was heavily critical of Mr Patterson's evidence and submitted that Mr Cass's evidence in relation to the basic anatomy has not been contradicted.
- Mr Mooney submitted in the alternative that Mr Patterson could not properly substantiate his 49.5% figure, and in any event the court is evaluating the loss of a chance. It follows that on any view this must be envisaged as an acceleration case. Mr Patterson's 15-20 years was pure guesswork. It was open to me to make an intermediate finding on acceleration somewhere between Mr Cass's 12 months (Mr Mooney's primary case) and Mr Patterson's 15-20 years, but for obvious forensic reasons Mr Mooney urged me to alight on a duration closer to Mr Cass's preferred position.
- Mr Mooney accepted that Dr Valentine was a good witness and Dr Munglani was "wordy". Overall, however, the Claimant is now functionally normal. In support of that submission Mr Mooney relied on the following matters, by way of highlights (I take it that he was asking me to consider all relevant matters, including all the points he brought out in cross examination):
(i) the contrast between the Claimant's demeanour in the witness box and in the surveillance footage: the former cannot be explained, and should be regarded as synthetic (not quite how Mr Mooney put the point, but I am seeking to distil its essence).
(ii) the surveillance evidence itself.
(iii) the Claimant's failure to give an adequate explanation for Mr Lam's clinical findings in relation to her neck (see paragraphs 18 and 20 above).
(iv) the mendacious answer to the health questionnaire.
(v) the clearly inflated claims for loss of private practice earnings and hairdressing.
- Mr Mooney emphasised that the Claimant was clearly improving and would continue to do so.
- In an equally effective submission, Mr Mendoza submitted that the Defendant's admission of liability carried with it the consequence that it was bound by the Claimant's version of events, and by the particulars of breach of duty, including the allegation that her accident would have been avoided if a hoist or lifting device was used. He submitted that Mr Patterson must be correct in opining that the element of lift entailed in this manoeuvre did substantially increase the forces in play, and (as an extrapolation) the pressure in the intervertebral space. Mr Mendoza was heavily critical of Mr Cass's evidence, emphasising in particular that his written evidence was poor.
- I invited Mr Mendoza to consider whether the Defendant suffered an evidential and legal burden of proof in relation to the hypothesis: what would have happened in any event. Once he had fully understood the point I was striving to make, he submitted that the Defendant had both an evidential and a legal burden of proof in this respect. I then invited Mr Mendoza to consider the possibility that a possible consequence of my finding that the expert evidence was so vague and conjectural (if that were my finding) was that the Claimant should recover on a 100% basis for this reason, namely that the Defendant could not discharge its burden of proof, evidential or legal, in relation to the hypothesis. Mr Mendoza submitted that it was open to me to reach that conclusion, although I rather sensed that his preferred submission was that I should find acceleration of 20 years +. This was because, as I understood his submission, Mr Patterson's 49.5% (top end), combined with his 15-20 years, would as a fused assessment push out the degree of acceleration rather than bring it forward.
- Mr Mendoza was heavily critical of the video surveillance evidence and submitted that I should give it little or no weight.
- Mr Mendoza advanced a somewhat recondite submission along the lines that, had the Claimant's neck prolapsed in, say 20 years' time, the prognosis would have been very much better because her surgery would not have been delayed for five years. The delay was occasioned, at least in large measure, by the Claimant's supervening pregnancies. In support of that submission, Mr Mendoza had the benefit of Mr Cass's evidence that the prognosis would have been much better absent the very significant delay. Although not explored in evidence, Mr Mendoza drew attention to an early letter from the Claimant's solicitors seeking an interim payment in order to pay for the costs of private surgery.
- I may address this submission at this stage. In my judgment, Mr Mendoza lacks a sound evidential basis for it. Mr Lam offered surgery in 2008 but the Claimant was unwilling to undergo it on account of the risk. It was clear to Mr Patterson in 2009 that this remained the position. In her first witness statement of March 2010, the Claimant said that she now felt that she had no choice but to submit to surgery. The reasons for the delay thereafter were not explored in evidence, but we know that the Claimant returned to Mr Lam in April 2012. In my judgment, there is insufficient basis for me to infer from all the available evidence that the reason for delay was the Claimant's further pregnancies, that there was no opportunity to undergo surgery between pregnancies, and/or that an operation carried out on any view more than three years after the incident (I am working from the March 2010 date) would have had a significantly better prognosis.
- Both Counsel advanced submissions on the Claimant's final Schedule of Loss which I obviously take into account.
Discussion and Conclusions
Factual Assumptions and the Pleadings
- The Defendant filed and served a Defence on 15th August 2016. It did not advance a positive case in relation to the causation of the accident or the Particulars of Negligence/Breach of Duty. The issue does arise, although it was not addressed by Mr Mooney, as to the extent to which it is now open to the Defendant to (a) dispute the Claimant's version of events, and (b) dispute the Claimant's case that, had a hoist or some other lifting device been used, no force and/or pressure would have been placed on her cervical spine at all.
- No authority was drawn to my attention to facilitate, or determine, my analysis of this point. I therefore do so applying first principles.
- The Defendant's admission of liability means that it is deemed to have admitted that the Claimant suffered some actionable loss and damage as a result of the events which took place on 23rd March 2007.
- The Defendant has known for many years now that the Claimant's case is that she was required to lift the patient. It has not advanced any contrary case through witness statements and pleadings, but it has steadfastly maintained, through Mr Cass, that there could not have been any element of lift because such would have defied the laws of physics. Mr Mendoza did not object to his client being cross examined on that basis. The Claimant has not been caught by surprise, and Mr Patterson has been fully equipped to deal with this argument. In my judgment, the point should have been pleaded but the fact that it has not been is not fatal to the Defendant's submission.
- The Defendant does not dispute that, regardless of the exact sequence of events, whatever took place on 23rd March 2007 caused the Claimant's C5/6 disc to prolapse. The use of a hoist or some other lifting device would indeed have prevented the accident, but here the Claimant is pushing at an open door. The Defendant admits that its breach of duty did cause this accident. The real issue is whether, if there had been no prolapse of the Claimant's C5/6 disc on this particular date, it would have occurred on some other occasion and in a different way.
- I frame the issue in those terms because great care must be taken in connection with the Defendant's contention that this was a routine event. I accept the Claimant's evidence that something different happened on this occasion to take the event out of the routine: she said that it was the weight of the patient, and the fact that she had to stretch across the table. Giving the Defendant every indulgence on the pleadings, I accept the Claimant's evidence hereabouts. But I do not accept the proposition that the same accident might have occurred on a different day in the same Cath lab. This would beg too many questions, in particular the obvious point that the Defendant may well have been systematically negligent. The hoist/lifting device point may feature in the analysis at this stage, but I also note that it was not Mr Mooney's submission that I should conclude that the Claimant's neck was primed to fail at work. He invited me to consider a list of prosaic, banal extramural activities, and it is in this regard that it seems to me I should be considering Mr Cass's argument. It also follows, in my view, that the fact that the Claimant's neck did not fail on some earlier occasion at work must be regarded as a neutral factor.
- Mr Mendoza drew to my attention the decision of the Court of Appeal in Kenth v Heimdale Hotel Investments Ltd  EWCA Civ 1283, where the issue of acceleration was considered in a similar context. At paragraph 37 of his judgment, Laws LJ said this:
"Can the judge be criticised for adopting, on the evidence before him, an acceleration approach? The starting point, as it seems to me, is that in the ordinary way a Claimant must, of course, prove his case both as liability and quantum on the balance of probabilities. However, there are circumstances, it is clear, where an absolute or blanket application of this ordinary rule creates injustice, especially to the Claimant and especially where the issue is as to future facts or hypotheticals, rather than past facts. Broadly, at least, past facts are
decided on the balance of probabilities."
- I do not disagree with the conclusion (nor could I disagree with it, because I am bound by the Court of Appeal) but I respectfully take issue with the route to it. In my view, the point is not to identify exceptions to an ordinary rule, but to recognise that there are two rules (or principles). There is a difference in principle between proof of (a) past facts and (b) future or hypothetical facts. The former are determined by applying a burden and standard of proof; the latter are determined by estimating the chances, and then expressing the outcome in terms of a percentage or number of years. This difference in principle has been established at the highest level: see Davies v Taylor  AC 207 (at 213) and Mallet v McMonagle  AC 166 (at 176E-G). In Mallett, Lord Diplock said this:
"The role of the court and making an assessment of damages which depends on its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend on its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more less than even, in the amount of damages it awards."
- The relevant past event in this case is the happening of the accident, and how the Claimant's neck was caused to prolapse. It is common ground in this case that the Claimant's injury was caused by this incident; but even if it were not, the issue would be determined by applying the binary, probabilistic rule. The real issue in this case involves the examination of a hypothetical: would the Claimant's disc have prolapsed in any event; and if so when? As soon as a counter-factual of this nature is posited, we travel outside the domain of fact and into the realm of chances and possibilities. It is these which must be evaluated but not on a binary, all-or-nothing basis. A statistician would say that the issue is not discrete but continuous, and that the probabilities (which the lawyer would call possibilities) have a value which could be greater or less than 50%. Thus, as the late Dr McGregor teaches us, the distinction is between causation of loss (fact) and quantification of loss (estimate of a chance).
- Applying these principles to the present case, it may immediately be seen that Mr Patterson's 49.5% chance, if correct, is not as valuable for the Claimant's purposes as he might have thought. Even if I should accept that figure, it does not mean that the Claimant must recover in full. The fact that the Claimant probably would not have suffered a similar disc prolapse in any event is not the issue; instead, the chance of it occurring must be estimated. Thus, if the lifetime risk were really 49.5%, the Claimant would not recover in full. The correct analysis is that, other things being equal, she should recover 49.5% of the sum assessed on a full compensation basis (other things may well not be equal, because the distribution of the risk may not be even across the whole of the Claimant's life expectancy).
- In my view, there are two possible approaches in this sort of case. The first is the percentage discount approach which I have already mentioned. It is rarely used in this sort of orthopaedic case (c.f. the decision of Stewart J on Young v AIG Europe Ltd  EWHC 2160 (QB)), and I did not hear Mr Mendoza espouse it. I think that he was right not to, particularly given the difficulties with Mr Patterson's 49.5% figure (as qualified by him in his oral evidence). The second approach is to seek to translate the overall chances into a period of acceleration expressed in months or years. In my experience, this approach is commonly deployed in back and neck cases, and other things being equal I should follow it.
- Some brief analysis is required as to how the overall chances or risks are translated into a figure expressed in years. If the exercise were conducted scientifically, and the degree of pre-existing degeneration and applicable force/pressure were known, these data could be cross-referenced with epidemiological evidence and an appropriate conclusion reached. Armed with all this information, the statistician would be able to calculate the correct median or mean point (I imagine that there might be argument as to which should be deployed) and arrive at a robust conclusion. On my understanding, this statistician would not be saying that the Claimant's prolapse would probably have occurred anyway after X years. Instead, the reasoning would be: X years represents the mean or median point across a whole cohort of similar cases. If this cohort were distributed along a perfect normal curve there would be no difference in practice between these two propositions; but I strongly suspect that it is not.
- All of this is not to say that the exercise of quantifying the Claimant's loss ignores proof of past facts. For example, one issue in this case is whether the finding on the 2012 MRI scan of degeneration at C4/5 is evidence of a pre-existing disease process. Strictly speaking, the interpretation of this finding is a matter of secondary fact or inference; but either way this is a past fact in relation to which the dichotomous approach applies.
- Mr Mooney drew my attention to the decision of the Court of Appeal (Waller LJ and Douglas Brown J) in Skerman v H Bollman Manufacturers Ltd  EWCA Civ 919. In that case, there was engineering evidence to assist the court in evaluating the degree of force likely to be required to cause the back injury. The orthopaedic evidence was somewhat equivocal, but one of the doctors said at one stage during the case that the back injury would have occurred after 5 years. Douglas Brown J said this:
"The judge came to the conclusion that, although overall and on the whole he accepted [Mr Birch's] evidence, his view that the prolapsed disc would not occur during her working life, was a view that he could not agree with.
Having found the force at the time was probably less than 18 kgs, itself a safe weight, he made his own assessment of the risk based on the claimant's work ambitions and lifestyle. The judge did not simply use his common sense, although this is a valuable commodity. There was clearly evidence before the judge as to how she had spent her leisure time and what her working conditions were. The judge was fully entitled, on a commonsense basis, to look at the kind of activities that would arise, both at play and at work. The judge reviewed Mr Birch's evidence but not uncritically. He found that the most likely scenario, in an extremely difficult and imprecise area, was to be found in Mr Birch's letter [giving the 5 years' figure]."
- I am not convinced that this authority lays down any principle, but it does at the very least generate a number of issues. I asked Counsel whether the Defendant suffered any evidential or legal burden in this respect. I take into account their submissions, but it seems to me that the Defendant has an evidential burden in this case to adduce a prima facie case that the Claimant's disc would have prolapsed in any event. If the issue had not been raised, and at least some evidence adduced in support of it, the Claimant would be pushing against the open door of 100% recovery. The next issue is whether I am bound by the experts' competing views (viz.: 12 months; 15-20 years; no acceleration at all) or whether it is open to me to reach a different conclusion. On my understanding of their submissions, both Counsel accepted that I was not bound by these values. Even so, I consider that I would have to base my conclusion on some evidential footing, rather than by applying just my common sense (a valuable commodity no doubt, but not an excuse for a weather vane, or a proxy for augury or divination). In practice, this means that if there is a proper basis in reason and on the evidence for modifying the views of one or more of the orthopaedic experts, I may do so. Finally, although I raised in argument the possibility that I could conclude that the evidence is so chaotic that, given that the evidential burden is on the Defendant, the Claimant should recover 100%, I have come round to the view that this difficulty does not arise in this case.
- The first issue for me to determine is the factual one: was there some element of lift? I accept the Claimant's account of what she says happened. Her evidence was clear and unswerving, and receives some support from the accident report form. Further, the Defendant has had more than ample opportunity to contradict it by evidence and has chosen not to do so. I note with some concern one of the pre-action letters from the Defendant asserting that the Claimant was in fact standing at notional compass point north. This is inconsistent with the contemporaneous documentation and an allegation which should never have been made.
- Accordingly, I find that the accident happened with the Claimant's arms outstretched, her neck in full extension and rotated 45 degrees to her right. The Claimant clasped or grabbed the bedsheet with the intention of moving this large patient fully onto the Pat slide. I do not know if the hospital bed and the Cath table were exactly at the same height, relative to each other. I do know that the inertial weight of the patient must have caused him to sink slightly into the mattress. In my judgment, some element of upwards motion was required.
- Plainly, the Claimant was not intending to lift this 16 stone patient directly into the air, perpendicular to the bed, with such force as she could muster with her arms outstretched. The laws of physics would have conspired against that, and it would have been unnecessary. However, she was attempting to lift the patient onto the Pat slide, using the bedsheet as her gripping point. I disagree that this movement amount to a "drag" purely in a horizontal plane. I accept the Claimant's evidence that this was in part an upwards motion which, if successfully undertaken, would have brought the patient on to the slide; from where he would have rapidly glided across, without much additional force.
- I believe that something went wrong on this occasion. There are a number of possibilities, including that the person standing at point west mistimed what he was supposed to do. It is highly relevant, in my view, that the Claimant's arms were fully outstretched, that her upper limbs, shoulders and neck muscles were tensed, and (to some extent) that her neck was rotated to the right. It is also of some relevance that the Claimant was wearing a heavy lead gown. I accept Mr Patterson's evidence on these last two points, although recognise that their causative potency may not be great. Mr Patterson is supported to some extent by one of the papers to which I was referred, and the accident report form.
- On the Claimant's evidence I find that she attempted a yanking or jerking motion, but did not get very far with it. This was not the controlled isometric exercise described by Mr Cass, where the body is not under tension in the same way. Further, and in contrast with the exercise he was describing, the Claimant was expecting the patient to shift, not to stay put.
- Would such a yanking motion place significant force on the Claimant's neck? I do not have an engineer or an ergonomist to help me, but the doctors have opined and I also possess a modicum of the valuable commodity mentioned by Douglas Brown J. Mr Patterson gave clear evidence to the effect that it would do, and I am driven to agree with him on this point. There were problems with his evidence in other areas, but not in my view in this regard. It is quite true that he had no idea of the pressures involved, but all that probably means is that Mr Cass looked these up and he did not. Mr Patterson could not quantify the forces involved on this occasion, but neither I believe could Mr Cass (once I reject his evidence about what was entailed). However, Mr Patterson could have a "feel" for the sort of forces involved, and he could assist me with his informed intuition or clinical judgment. I am also entitled to pay some regard to my own experience, both of lifting and putting my neck under pressure with the arms extended; and I note that these experiences chime to some extent with the conjectures in the Kelsey et al paper.
- Mr Cass's written analysis of this issue was deficient in a number of ways. There was no signed statement of truth; indeed, no signature at all. More importantly, the analysis reads more like an argument or thesis than a considered statement of opinion. In the witness box, Mr Cass came across far less tendentiously, but ultimately I was not persuaded. His main endeavour was to describe a dragging motion, or a pull; but not a lift. He revised his account in the witness box to include a lift, and he said that this made little or no difference; but I cannot agree and prefer Mr Patterson's evidence on this point. In my judgment, Mr Patterson is not particularly academic or quantitative, but he is a sound expert whom I found to be of assistance.
- Accordingly, I find as a fact that the forces entailed in the index event were significant or substantial (the latter epithet being understood as meaning more than just trivial or minimal), which may explain why the Claimant's neck "popped" immediately.
- The second issue for me to decide is the chance, if any, of the Claimant's neck prolapsing on some future date had there been no accident on this occasion. The evidence is scarcely of the highest quality and contains a melange of assertion, circularity of reasoning and question-begging. Both experts were guilty of these solecisms, albeit in different ways. At one stage I confess that I found myself warming to the idea that the Claimant should recover 100% because this was close to becoming a pure exercise in speculation which should not be countenanced. Further, not merely am I unable to accept Mr Cass's 12 months (because I do not believe that the Claimant's neck was primed to fail, for the reasons given), I am unhappy with Mr Patterson's 49.5% as being little more than a guess (and from his point of view a convenient one at that).
- Ultimately, however, I have concluded that I am not driven to finding that the Claimant should recover on a 100% basis, and I confess that I am glad that this should be so. I have concluded that it is possible on all the available evidence, melded with or filtered through the prism of common sense, to arrive at an acceleration factor, assessed in years rather than percentages. My reasoning process is as follows:
(i) the Claimant's C5/6 disc must have been degenerate to some extent in order to prolapse. How and why does not matter.
(ii) the extent of the pre-existing degenerative change is unknown and cannot be inferred.
(iii) the forces involved in the index event were significant and/or substantial, to an extent that cannot be quantified in any relevant SI unit. However, I have a sense in general terms of the sort of forces/pressures involved, as did Mr Patterson. We are talking about forces and pressures significantly, but certainly not massively, above normal physiological levels.
(iv) the chance or risk of the Claimant's neck prolapsing in the short- or medium term was very low, unless one were to postulate a similarly negligent event in this Cath lab.
(v) as time notionally elapsed, however, the greater would have been the degree of degeneration in the Claimant's neck at C5/6 (and, probably, at C4/5 as well, because at the very least that disc would have been weakened by the processes occurring below), and the lesser the degree of force/pressure required to cause a prolapse. To my mind, this approach is consistent with Mr Cass's evidence, and accords with both logic and common sense.
(vi) the challenge in this case is to ascertain the point in time at which the Claimant's neck was, to use Mr Cass's terminology, primed to fail. In conducting this hypothetical exercise, consideration needs to be given to the Claimant's overall lifestyle (with gardening; DIY etc.) and the cumulative effects of physiological and extra-physiological loads.
(vii) in my judgment, the Claimant would have attained high-risk status for a neck injury of this sort as she entered her forties. I am not prepared to hold that the Claimant's neck was primed to fail on any specific date, but the risk of it doing so was high; and would have increased between the ages of 40-50 when she would have been still fit enough to do her DIY and gardening as well (this translates to an acceleration period of about 14-24 years).
(viii) It is very unlikely that the Claimant's C5/6 disc would have survived unscathed after her 50th birthday. It is more likely (by comparison) that it would have failed before her 40th birthday. This serves slightly to advance the acceleration period of 14-24 years.
(ix) I cannot accept Mr Patterson's 49.5% figure, nor his attempt in oral evidence to revise it downwards. In my view, I should ignore it altogether.
(x) on the other hand, I do believe that his 15-20 year figure has some validity in the sense that it represents the application of his clinical judgment over a lengthy career and considerable experience of a whole range of cases. However, and contrary perhaps to his written evidence (where he appears to state that the Claimant's neck would have prolapsed during this period), I would interpret this range as being his estimate of the period of greatest risk.
(xi) the spread of risk, containing a peak at the 15-20 year point, may be seen as reflecting the imponderable of the extent of pre-existing degeneration and factoring in a qualitative assessment of the likely forces involved at the time of the index event.
(xi) weighing all the factors in this case, and applying the risk-based approach mandated by the House of Lords, I have concluded that a 15-20 year acceleration period in this case would be reasonable. I take 17½ years because it is not unreasonable to select a mid-point for ease of calculation.
The Claimant's Past and Current Condition
- In my judgment, I have to reach my conclusions about these matters based on a careful amalgam of my assessment of all the lay evidence, in particular of the Claimant herself, and of the expert evidence I have found to be reliable. In saying this, I recognise the following. First, that pain is subjective and may not always have a bio-mechanical basis. Secondly, that I am judging the Claimant in an extremely unnatural and artificial environment. Thirdly, that the origin and causes of pain are likely to be multifactorial, and may well include a significant psychological or psycho-social component. Fourthly, that surveillance evidence is capable of being very compelling but in less clear-cut situations requires carefully parsing and assessment. Fifthly, that deliberate exaggeration and manufacture of levels of symptoms must always be a possibility in cases of this sort, particularly where the period between accident and trial is so (unconscionably) long. Sixthly, that the experts are able to assist me with their opinion as to the consistency between the Claimant's claimed symptomology and the objective signs (such as they are), but cannot opine on questions of honesty and credibility.
- As a further general consideration, it seems to me that contemporaneous documentary evidence must carry greater evidential weight than witness statements and opinions written after the event. Thus, the clinic letters from Guy's and St Thomas' hospital, although not gold-plated, should be considered as fairly robust pieces of evidence, despite the fact that Mr Lam, Dr Thomas and Dr Pang have not appeared before to back them up. By the same token, I place greater weight on a witness statement that purports to describe the Claimant's current position than a statement which seeks to do so retrospectively.
- Another aspect which should be mentioned is that pain waxes and wanes, and that the Claimant has good and bad days.
- The temptation must be avoided in cases of this sort to start at a certain place (e.g. the credibility of the Claimant) and then proceed to address those parts of the expert evidence that find favour in the sense that they appear to support the court's conclusion. The same applies the other way round. The correct approach must be constantly to shift the judicial focus between the lay and the expert evidence, to weigh up this evidence simultaneously (to the extent possible), and then to reach a holistic or syncretic conclusion on all the evidence. However, for the purposes of this Judgment I have to start somewhere, and in my view it is convenient to begin with the expert evidence.
- In my judgment, the evidence of Mr Patterson and Mr Cass was equally compelling on these issues (c.f. the acceleration issue), and I did not detect there to be a vast difference between them. I have already said that I thought that Dr Valentine was an excellent expert witness. I do not entirely reject Dr Munglani's evidence, in particular his opinion that there is no gross disparity between the surveillance evidence and the Claimant's claimed condition.
- I have no doubt that the Claimant's symptoms between March 2007 and her operation in October 2012 have been accurately recorded in the contemporaneous records, the expert reports of Messrs Patterson and Cass, and the Claimant's first witness statement. The Claimant was very anxious about the risks of surgery, and she would not have submitted herself to them had Mr Lam's April 2012 letter not accurately reflected the position.
- After October 2012 the picture is less clear. The following points should be made on the expert evidence:
(i) in two clinic letters Mr Lam has stated that the Claimant's neck was very much better, if not wholly resolved.
(ii) subsequent examination of the Claimant's neck revealed a range of symptomatology. From Mr Patterson's perspective, there were few, if any objective signs in September 2015. Mr Cass, however, considered that there was marked restriction in movement.
(iii) the Claimant has continued to complain of neck pain, although she has stated that the radiating arm pain is more troubling.
(iv) in Dr Valentine's opinion, neck pain can return in cases of this sort. He would characterise the neck pain as mechanical.
(v) the December 2014 MRI scan provides a biomechanical explanation for the Claimant's right arm pain, namely compression of the right C6 nerve root. This is the neuropathic pain Dr Valentine describes. Moreover, both Mr Cass and Dr Valentine are agreed that, in cases where the disc compresses on the nerve root for years, and then the compression is released, it is quite possible for the pain to continue owing to enduring changes to the nerves and to neural pathways.
(vi) Mr Patterson and Dr Valentine say that there is no inconsistency between the surveillance evidence and the Claimant's claimed symptoms and level of functional restriction, although Dr Valentine modified that view to some extent in oral evidence (see paragraph 136 above).
(vii) on my understanding of his evidence, Mr Cass was not saying that the Claimant is exaggerating her symptoms etc., although he was concerned to bring to my attention the apparent ease with which the Claimant put on her coat from the back of her chair. I have also noted the manner in which the Claimant lifted her four year-old across her body with her right arm (see paragraph 53 above).
(viii) all the experts appear to accept, with varying degrees of conviction and emphasis, that there is/was a disparity between the Claimant's demeanour and comportment in the witness box, and her presentation on the video. The reasons for this have been articulated in different ways.
(ix) the orthopaedic experts are agreed that the Claimant's level of functioning will continue to improve, although it is likely that she will require further surgery at some future date. It is reasonable to infer that this improvement has been brought about by the various therapies the Claimant has been receiving (in this regard, I have also borne in mind the evidence of Mr Nick Heasman).
- I have set out a number of additional points during my review of the expert evidence which I will continue to bear in mind.
- I turn now to address the Claimant's evidence. There are a number of matters which count against her, in particular:
(i) her explanation for Mr Lam's two clinic letters post-operation was, in my view, unconvincing (see paragraph 70 above).
(ii) I did think it surprising that in her third witness statement she was able to say that her first witness statement either dramatically understated the position, or she has significantly improved; but she could not say which (see paragraph 67 above). The Claimant is an educated woman and does not lack the wherewithal to say what she means.
(iii) I am not impressed by her inflated claims for private practice earnings and hairdressing costs.
(iv) the Claimant was able to sit for five hours in September 2008 and undertake an examination using a computer (see paragraph 65 above), admittedly using her left hand.
(v) I have some doubts about whether sections of the Claimant's pain diary are contemporaneous.
(vi) the surveillance evidence shows the Claimant putting on her coat, with her arms behind her back, without apparent difficulty or pain. Had this been a problem for her, it would have been easy enough to bring the coat forwards into a more comfortable position.
(vii) the Claimant's overall demeanour and manner of being is different on the surveillance footage to how she came across to experts (e.g. Professor Fahy) and this court.
- Notwithstanding these concerns, I acquit the Claimant of deliberately inflating or exaggerating her claim. She did not come across as the sort of person who would do that. Overall, I felt that the Claimant was a reasonably honest and decent person, and two considerations strongly militate in her favour. First, I do not think that the Claimant would have given up the job she loved had she been able to continue to pursue it. Secondly, I do not believe that her mother would continue to do so much of the housework, her brother so much of the gardening (and her father to some extent), and her father so much with his grandchildren, if all this were within the Claimant's compass of abilities. The Defendant's case on deliberate exaggeration brings in other family members; and, having seen them give evidence, I am completely satisfied that they are not party to it.
- On the other hand, there is an element of mismatch between the Claimant's level of functioning, objectively assessed, and some of her subjective claims. I would class this as exaggeration but not as a conscious attempt to mislead. I would prefer to ground myself on the psychological and social explanations proffered by Dr Valentine and hinted at by Professor Fahy, recognising that the latter did not give oral evidence before me. Overall, I cannot be wholly confident that the Claimant's current position can be stated with precision, but I must do my best applying the civil standard of proof.
- On that basis, I find that the Claimant does experience a degree of neck pain from time to time but it is very much secondary to her right arm pain. Her neck movements are restricted on bad days, but generally speaking they are as Mr Patterson found them to be in September 2015. However, I find that the Claimant does experience significant right arm or radicular pain which she very often finds incapacitating. This does not mean that her right arm is always painful, and that she cannot use it for many relatively undemanding activities (as shown on the DVD). That said, I accept her evidence that activities of this sort tend to cause her grief in the evening, and that she has to avoid heavy lifting and carrying, as well as activities which place strain on her right C6 nerve root. This rules out gardening (save for pottering around) and working as a physiologist or in any similar fashion. She can perform light household chores but her capabilities in that respect are limited, more or less to the extent that she and her mother have explained.
- However, the Claimant is fit to undertake part-time work which does not involve heavy lifting and other physical stress. Her condition will continue to improve over time, particularly in conjunction with further CBT and massage therapy. It is quite plain that there has been a considerable improvement in the Claimant's state since February 2013 (the date of her third witness statement). The extent of her further improvement cannot be quantified.
- It is against the backdrop of these findings that I turn to the Claimant's Schedule of Loss and seek to value her claim.
- The final updated Schedule extends to 89 pages and is far too long. It contains unwarranted discussion, argument and submission. On the other hand, the Defendant's Counter-Schedule, dated 15th November 2016, is unduly Spartan, and only addresses the Defendant's best case.
- I have to do my best on all of the available material, including the nursing/care evidence which was not tested orally. I will leave it to the parties to carry out the basic arithmetic, calculate statutory interest etc.
- General damages for pain, suffering and loss of amenity: Both parties referred me to the Judicial College's "Guidelines for the Assessment of General Damages in Personal Injury Cases" (13th Edition). The Claimant held out for £90,000. The Defendant proposes a figure of £25,000 based on 15-20 year acceleration. Into my overall figure must be absorbed the need for further surgery as well as the Claimant's mild depression and anxiety occasioned by her accident, loss of her career, the delay in this case and her understandable reaction to the surveillance evidence. On the other hand, I must also reflect the probability of some further improvement in the Claimant's condition. In my judgment, this case lies between "Severe Category (iii)" and "Moderate Category (i)". My valuation is £37,500.
- Loss of Congenial Employment: £10,000.
- Handicap on the labour market: see below.
- Aids and Equipment: The sum claimed is £2,387.93. Some of these items would have been obtained in any event; others are simply too expensive. I am sympathetic to the claim for the orthopaedic mattress and pillows. Allow £1,000.
- Care and Assistance: The total sum claimed is £46,098.05. I do not propose to go through this claim item by item. I agree with the Defendant's case that I should take the basic rate not the full aggregated care rate. I intend to split the difference between the experts and apply a further discount to reflect the Claimant's recognition in cross examination that her parents would have provided some care in relation to babysitting etc. in any event. Allow £20,000.
- DIY/Removal costs: Allow £500.
- Gardening: The claim is in the sum of £2,968.24. Most of this was carried out by the Claimant's brother. Allow £2,000.
- Past loss of earnings: The claim is for £26,431.26 net per annum (based on the Claimant's actual pay) together with £40,000 for private practice earnings. My starting point is to allow £93,843.36 in respect of the Claimant's NHS earnings but discount that amount further to reflect part-time working and/or flexi-time. Allow £60,000. I only allow £5,000 in relation to private practice earnings since the evidence here is unsatisfactory, and in my view the Claimant would already have been sorely pressed for time with all her other commitments, including the DIY and gardening work she would have carried out.
- Travel: the claim is for £5,168.68. Allow £2,500.
- Medical costs: allow the entirety claimed in the sum of £19,082.70.
- Miscellaneous: allow £99 and £516.56.
- Domestic Services: In my view the Claimant would have engaged a cleaner in any event.
- Gym membership: It was suggested by Mr Mooney that the Claimant would have joined a gym in any event but I am not persuaded by this. Allow £1,096.50.
- Earnings: In my judgment, it is right to apply the ordinary multiplier/multiplicand approach. This is not an exceptional case where the Claimant should be awarded a lump sum on a more impressionistic basis. I am satisfied that the Claimant has lost her career and that credit should be given for her current earning capacity. The Claimant's figure of £33,567 net per annum is not unreasonable, but in my view insufficient allowance has been made for the probability that the Claimant would have worked part-time and/or flexi-time. The multiplicand should be £25,000 net with a multiplier of 4.66. For private practice earnings I award a global sum of £30,000. As against these figures it is suggested by the Claimant that her residual earning capacity is £8,000 per annum. In my view, this is an under-estimate given that the Claimant's condition will improve in time (I accept, however, that the consequence of taking a 17½ year acceleration in this case is notionally to reduce the window of opportunity for further improvement). I propose to take a multiplicand of £12,500 per annum and a multiplier of 2.05. To this should be added the cost of retraining, in the sum of £10,000, and a further sum for handicap on the labour market in the sum of £10,000.
- Pension: I invite the parties to agree the right figure for this on the expert evidence.
- Future care and assistance: The claim is for a nanny but I see him or her as being more by way of factotum, assisting the Claimant with the heavier aspects of cleaning and childcare. I allow £9,082 per annum until the Claimant's youngest child reaches the age of 5. Thereafter, I allow 4 hours a week at £12 per hour. The parties have agreed a multiplier of 7.05.
- Future gardening: The multiplicand is £1,000 and the multiplier 7.05.
- Future decorating/DIY: The multiplicand is £750 and the multiplier 7.05.
- Future therapies: I allow, as multiplicands the following:
cost of medication (£104 per annum); CBT (£1125 this is the total claim); pain management treatment (£5180 this is the total claim for what is described as interventional treatment; I disallow the other item); massage therapy (£420 per annum). The cost of medication and the cost of massage therapy attracts a multiplier of 7.05. I disallow the remaining items because the basis for them has not been adequately established. I also disallow the sum of £10,357.50 being the cost of the operation. Although this is an acceleration case, the better view on all the evidence is that, but for the Defendant's breach of duty, the Claimant would still have needed one operation; however, she would not have required two.
- Future travel for treatment: The multiplicand is £82.44 and the multiplier 7.05.
- Future aids and appliances: I allow only the cost of the orthopaedic mattress and the memory foam pillow. This is £45 per annum and a multiplier of 7.05.
- Future transportation and driving: I allow only for the enhanced cost of an automatic transmission vehicle: £220 multiplied by 7.05.
- Future hairdressing. This is an inflated claim and I allow £2,500 in total (approximately £500 a year, rounded up).
- I have concluded that, but for the Defendant's admitted breach of duty, the Claimant's disc prolapse would have occurred 17½ years later than it in fact did.
- I am grateful to the parties for assisting me with the arithmetic. I provide the following summary of the various claims I have allowed:
Pain, suffering and loss of amenity: £37,500
Loss of Congenial Employment: £10,000
Smith v Manchester: £10,000
Loss of Earnings: £65,000
Medical Costs: £19,082.70
Gym/ Swimming: £1,096.50
Sub-total - £120,682.44
Loss of Earnings: £130,875
Care and Assistance: £19,867.30
Hair Dressing: £2,500
Grand Total = £425,515.81
- There must be judgment for the Claimant in the sum of £425,515.81.
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JAY
19th December 2016
Claim No: HQ14P03330
B E T W E E N :-
MRS LORNA CATHERINE HAYDEN
MAIDSTONE & TUNBRIDGE WELLS NHS TRUST
UPON HEARING from Counsel for the Claimant, Mr Colin Mendoza, and Counsel for the Defendant, Mr Giles Mooney, on 28 November 2016 to 1 December 2016
IT IS ORDERED THAT:-
1) Judgment be entered for the Claimant in the sum of £425,515.81 .
2) The Defendant do pay the Claimant the sum of £325,515.81 in full and final settlement of her claim (representing the Judgment sum, less £100,000 paid by way of interim payments), such payment to be paid by the Defendant to the Claimant's solicitors by
17th January 2017.
3) Upon there being a nil CRU Certificate, the Defendant be discharged from paying any sum in respect of recoupable benefits.
4) Paragraph 18(6) of the Order of Mr Justice Foskett dated
12th May 2016 be varied to the extent that the costs referred to in that sub-paragraph will now be subject to a detailed assessment if not agreed, rather than be summarily assessed.
5) Save as aforesaid, and as specifically covered by the Order of Mr Justice Foskett dated 12th May 2016, the Defendant do pay the Claimant's costs on a standard basis, to be assessed if not agreed, The Defendant do make a payment on account of those costs in the sum of £250,000 by 17th January 2017.
6) Liberty to apply.
1. It is unnecessary for this Order to repeat the terms of paragraphs 18(1) and (7) of Foskett J's Order dated 12th May 2016. This Order stands in its entirety, save in relation to paragraph 18(6).
2. The Claimant's solicitors have provided a Costs Schedule, but this does not enable me properly to assess on a summary basis the specific items covered by paragraph 18(6). I have therefore decided to vary this Order. These costs will be covered by a detailed assessment. I have increased the payment on account slightly in order to reflect this.
3. In my view, this is not a case for indemnity costs. I note the position taken by the Defendant's experts, but the evaluation of the surveillance evidence was ultimately a matter for the court. There was (just about) enough in the surveillance evidence to warrant the amended pleading.
4. My Order does not cover Dr Cooling. His costs will be covered in the detailed assessment. I hereby record that it was reasonable for him to attend court to hear and see the Claimant give evidence. Thereafter, it was unnecessary for him to attend, although issues may arise in relation to cancellation fees and like matters.
Dated this 19th day of December 2016