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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Cullen v Henniker-Major (Rev1) [2024] EWHC 2809 (KB) (07 November 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/2809.html Cite as: [2024] EWHC 2809 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
Ms WILMA AGNES CULLEN | Claimant |
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| - and – |
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Dr RUTH HENNIKER-MAJOR | Defendant |
____________________
Farrah Mauladad KC and William Wraight (instructed by Kennedys Solicitors) for the Defendant
Hearing dates: 1, 4, 5, 6, 7, 8 March 2024, 21 June 2024, 2 July 2024, 19 July 2024
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
His Honour Judge Ambrose sitting as a Judge of the High Court:
INTRODUCTION
via
a
valve
located in the wall between her trachea and oesophagus.
| Head of claim | Agreed/To be determined |
| General damages | £100,000 |
| Interest | £TBD |
| Past losses | |
| Care | £TBD |
| Travel | £2,500 |
| Equipment | £6,439 |
| Interest | £TBD |
| Future losses | |
| Care | £TBD |
| Case management | £TBD |
| Carers' holiday costs | £TBD |
| Physiotherapy | £8,580 |
| Psychological treatment | £TBD |
| Speech and language therapy | £32,000 |
| Equipment | £TBD |
voice
valve.
Her needs are intermittent and unpredictable and she needs someone on hand to assist her as and when required, which for practical purposes means she needs, and has had, someone on hand on a 24 hour basis. Her past and future care claims are advanced on this basis. In fact, due to a large part of the Claimant's past care needs having been met by first her local authority and then NHS funding, her past care claim is limited to the additional gratuitous care provided by family and friends. Her future care claim is advanced on the basis that her future care will be privately-funded. The Claimant's care expert has proposed a number of models for that care. The Defendant denies that the Claimant needs care on a 24 hour basis and does not admit that the past care and assistance claimed has actually been provided. The Defendant denies the need for future care as claimed. Some of this challenge is bound up with the Defendant's allegations of fundamental dishonesty. In closing, the Defendant conceded that if the court finds the Claimant to be honest, the Defendant concedes 24 hour care as the basis for the future care claim, but disputes the model advanced by the Claimant for such future care. The Defendant's care expert recommends an alternative model. So far as future psychological treatment costs and future equipment costs are concerned, the parties are not
very
far apart, but they are not agreed. The relevant experts have not been called to give oral evidence and I must make my determination on the basis of their reports.
i) It is alleged that the Claimant has been changing hervoice
![]()
valve
herself since December 2022 and, since the Claimant claims to be unable to manage the
valve
herself, her failure to declare that she is able to do so is dishonest and has resulted in a grossly over-inflated claim for future care. When the application to amend to plead fundamental dishonesty was first made, this was the flagship allegation. It has not been withdrawn. In closing submissions, but not by way of amended pleading, the Defendant sought to put a gloss on it, alleging that the Claimant can perform some, but not all, of the actions required for a
valve
change and alleging that she has failed to disclose this partial capacity and that amounts to dishonesty.
ii) It is alleged that the Claimant was dishonest in relation to her funded care and the payment of carers during the first Covid lockdown in 2020.
iii) It is alleged that the Claimant was dishonest in relation to her funded care and the payment of carers during periods when she was away on holiday.
iv) It is alleged that the Claimant has been dishonest in her claim that she receives care and assistance on a 24 hour basis. The Defendant relies upon surveillance evidence in support of this allegation.
v)
It is alleged that the Claimant has made a dishonest claim for a stairlift.
vi)
It is alleged that the Claimant has been dishonest in her presentation of her loss of amenity, in particular her social life. The Defendant relies on social media posts in support of this allegation.
The evidence
voluminous.
The trial bundles comprise a total of 25 lever arch files. At trial I heard evidence over 8 days (1, 4, 5, 6, 7, 8 March 2024, 21 June 2024 and 2 July 2024) and the transcript of that evidence runs to 669 pages (with each page containing 4 pages of transcript). Following the close of the evidence, written closing submissions were provided on 16 July 2024 and oral closing submissions were heard on 19 July 2024. Supplementary (unsolicited) written closing submissions were received from the Defendant on 3 October 2024 and the Claimant responded on 4 October 2024.
Cullen
(the Claimant), Anna Crowley (friend and carer), Dayne
Cullen
(son and carer) and Danny
Cullen
(son and carer). I also received a witness statement from Lindsay Lovell (treating speech and language therapist ('SLT')). I heard oral expert evidence from Professor Jarrod Homer (ENT), Ms Samantha Holmes (SLT) and Mrs Helen Howison (care). I received written expert reports from Dr David Evans (respiratory medicine), Professor R Symonds (oncology), Dr Kari Carstairs (clinical psychology) and Ms Ruth Ainley (respiratory physiotherapy).
Structure of the judgment
voice
prosthesis. Her claims for past and future care depend on the extent to which she needs assistance managing them. The Defendant's allegations (i) and (iv) of fundamental dishonesty are allegations that relate directly to her need for assistance managing them. It is therefore convenient to start by considering the evidence in relation to the management of her stoma and
voice
valve
and to make findings about that evidence.
MANAGEMENT OF THE CLAIMANT'S STOMA/AIRWAY AND
VOICE
VALVE
voice
prosthesis and
voice
valve.
Background
via
a tube, on 18 July 2017 she underwent a total laryngectomy with bilateral selective neck dissection (levels 2, 3, 4) and left pectoralis major reconstruction.
Factual evidence relating to stoma/airway and
voice
valve
management
very
lethargic, she
vomited
a great deal and went off her food. She had terrible ringing in her ears. She was accompanied to her appointments and she needed support once she got home. This was mainly provided by Dayne
Cullen,
although Danny
Cullen
and other family members also assisted.
voice
and with eating and drinking. Her consultant told her that although the treatment had worked well on the cancer, it had damaged her
voice
box and epiglottis. In January 2017 she underwent a procedure to debulk her throat and remove her epiglottis. Following this procedure, she was unable to eat or drink and for almost 6 months she had to be fed liquid food through a tube that was inserted up her nose and down into her stomach. She did not leave the house except to attend medical appointments. She remembers a hot summer and feeling thirsty but being unable to drink anything because all hydration had to go through the nasogastric tube. Her son Dayne gave up work to look after her because she could not manage on her own. He had to be trained to manage the feeding equipment and it was given four times a day. The only respite for him was when her sister came to stay or a trusted friend came round to sit with her for a few hours. He had to be back each time the feed or medication was due and for hydration throughout. She said that the whole experience was
very
emotional and she felt
very
frustrated, anxious, depressed and did not hold much hope for the future.
very
daunting and the decision caused her a great deal of anxiety and stress and her son Dayne was a huge support to her at this time. She decided to undergo the procedure.
very
strange and frightening and it took her a long time to adjust. She could not speak, which she found frustrating. During this time, her care needs were being met by hospital staff and her family and close friends were
visiting
and their emotional support was
very
important to her. During this period, her son Dayne attended training sessions to learn about stoma and airway management.
via
the nasogastric tube, continued 4 times a day and this carried on for months post-operatively. She was eventually able to wean herself off the nasogastric tube, starting with liquids, then soft foods by mouth and gradually progressing to normal food, although she found that she still needed to cut her food into small pieces. I observe that her dentition was
very
poor at this time, it having been poor pre-radiotherapy and having been made
very
much worse by the radiotherapy.
very
frightened about getting water in her airway. During this time, she was unable to communicate
verbally
which affected many aspects of her life and her son had to take these on for her.
Cullen
gave a witness statement dated 11 May 2023 in which he described undergoing training before his mother could be discharged from hospital following her laryngectomy. He had to learn how to manage her airway and the stoma and to keep them clean. Although his mother tried to do this, she was physically unable to do it on her own. He said that that remains the case. He described the procedure as
very
delicate and needing good eyesight, a steady hand, precision and confidence. He was
very
anxious doing it at first because he was frightened that he would hurt her. The procedure had to be done routinely, and as needed, because the airway gets blocked
very
easily which means she cannot breathe. It had to be done at least 5-6 times during the day, and sometimes during the night too. She also had to use a nebuliser machine at least 3 times a day and as needed. If her secretions were hard, it was used more frequently. He described the daily routine as involving suctioning and cleaning the stoma at the start of the day and being available at any time (day and night) to clear the stoma and clean it. He described how, whenever they went out, they had to prepare a bag of equipment to take with them to clear and clean the stoma.
voice
valve,
which gets blocked and leaks, when this happens I am unable to speak or communicate with anyone, resulting in others having to anticipate my needs. It needs to be cleared using a technical procedure, which my son has been trained to do. The speech and language team are involved and I attend regular appointments at the Royal London and UCLH." In relation to breathing, she was recorded as saying "I need to have a suction machine with me at all times, I also have other equipment such as a neck mask and inhaler, which keep my airways clear and enable me to breathe." Under the heading medication, "Although it is not medication as such, without the procedures currently undertaken by my son to keep me breather (sic) and airways clear are done in a timely manner, it would be detrimental to my health and well-being, as there are some procedures, which need to be done 4-5 times a day and are unpredictable in their nature." In the outcome section, the assessors state that "her son has given up work to support his mother and is currently undertaking all her healthcare needs and procedures needed to keep her airways clear."
visited
for this purpose. It also recorded that Dayne was finding it more challenging to support his mother "day and night". During the assessment, the assessor observed the Claimant's
voice
valve
becoming blocked and her son having to unblock it.
view
to the provision of her care transferring from the local authority to the NHS. That assessment process took place during the summer of 2018 and is well-evidenced in the documentary records.
very
helpful early snapshot of the Claimant's condition and for that reason, I reproduce it in full. Its
value
is enhanced by the fact that it comes from a SLT (the specialty to which all the other experts in the case have deferred when it comes to the management of the Claimant's stoma and
voice
valve/prosthesis)
who was involved in the Claimant's care and whose involvement pre-dated any litigation (the letter of claim was not served until well over a year later).
I am writing to inform you of our involvement with the above lady who underwent total laryngectomy, bilateral neck dissection, and pectoralis major flap reconstruction in July 2017, following previous treatment with chemo/radiotherapy for T3N0M0 SCC larynx.
Laryngectomy involves the surgical removal of the larynx (voice
box). The trachea (airway) and pharynx (food pipe) are completely separated and the trachea is diverted through a permanent opening in the neck, called the stoma. There is no longer a route for air
via
the mouth or nose, and the person becomes a neck breather.
MrsCullen
requires daily care to her
voice
prosthesis and her stoma in order to maintain her airway, minimise risk of infection or respiratory difficulties and maximise her ability to communicate. This care is essential in order to maintain a safe and healthy airway and will be required on an ongoing basis for the remainder of Mrs
Cullen's
life.
Due to difficulties with dexterity andvision,
Mrs
Cullen
is unable to self-care and therefore needs assistance from a trained care-giver on a daily basis. Further details on this care are provided below.
Respiratory function
As the stoma is the permanent route for breathing in the neck, air no longer passes through the body's natural humidifiers-the nose and mouth-during inhalation and exhalation. Instead air enters and leaves the lungs directly through the stoma. Without the body's natural humidifiers, the air that enters the lungs is often dry, cold and dirty.
To maintain a healthy respiratory system, MrsCullen
needs to use specially designed filtering and humidification systems to stop the fumes, dust, pollen etc from entering the airway. Nebulisers and suction equipment are also required on a daily basis to loosen dried secretions and prevent mucus plugs which could result in respiratory failure.
MrsCullen
is at an increased risk of infection, particularly chest infections, due to her status as a neck breather and an underlying diagnosis of COPD (chronic obstructive pulmonary disease). Patients can deteriorate relatively quickly with any difficulty relating to the chest affecting their breathing. For this reason, she requires swift access to suction machines and nebulisers to clear excessive mucus which would otherwise impair her respiratory function.
Stoma care
As part of her daily routine, MrsCullen
must thoroughly clean the skin around the stoma and remove any secretions from within the stoma itself. This can involve use of gauze, swabs and tweezers which requires a level of dexterity which Mrs
Cullen
struggles to achieve independently and she therefore requires the assistance of a trained carer to carry this task out. If stoma care is not performed appropriately, Mrs
Cullen
is at risk of the stoma becoming blocked, or plugging off, which could result in respiratory failure.
Voice
prosthesis
With the removal of thevocal
cords (also known as
vocal
folds) and the diversion of the air through the stoma instead of the mouth and nose, normal
voice
production is no longer possible. Mrs
Cullen
has undergone a procedure to provide surgical
voice
restoration, where a
voice
prosthesis is inserted into a puncture between the trachea and the oesophagus. Patients with this speech method have to clean and maintain the
voice
prosthesis to avoid infection risk and the risk of the prosthesis becoming dislodged or blocked.
MrsCullen
requires a clean, safe environment and assistance to use small cleaning brushes/pipettes to care for the
voice
prosthesis adequately. Failure to care for the
voice
prosthesis properly could lead to infection which could obstruct her breathing.
Current care provision
MrsCullen's
son is her designated trained carer. She relies on him to perform these stoma and
voice
prosthesis management tasks several times a day. As explained above, without his assistance she is at risk of developing infections which could lead to respiratory difficulty. Mrs
Cullen
would benefit if all of her carers were trained to support her in these tasks.
"She requires on-going support with respiratory care. Particularly with laryngectomy stoma care. She needs suctioning of respiratory secretions by a skilled caregiver 8-12 times/day in order to minimise high risk of chest infection, pneumonia and hospital admissions. This is not a predictive task; hence MsCullen
may require hourly suctioning of respiratory secretions."
varied
during the trial. The most common shorthand employed by counsel and the Claimant herself was to refer to both the funding and the funder as 'CHC', which is the shorthand that I shall use in this judgment.
valve
requiring frequent
valve
changes and he cross-referenced to the clinical records which supported this observation. He recorded that she required help cleaning the
valve
as she was unable to do it due to limitations with her dexterity and eyesight. He recorded that she required assistance caring for and managing her stoma (cleaning, cleaning and inserting tubes/stoma base plates etc) due to limitations with the dexterity of her hands, particularly on the right-hand side, as well as poor
vision.
He recorded that a suction machine and the use of a nebuliser were required, as was filtration and humidification
via
an HME device. He recorded that she felt that her breathing/shortness of breath had been gradually deteriorating. In the opinion section of his report, he opined that "the need for care that she currently receives will continue for life". He stated that she had a consequent need for care and assistance 24 hours per day.
varying
but it was usually required at least once every hour. It also recorded 3 chest infections in the previous 6 months. It was in September 2021 that her CHC funded care was increased to 168 hours per week.
very
delicate procedure requiring confidence, a steady hand, good eyesight and a reliable torch, as care had to be taken not to dislodge the
voice
prosthesis. She said that she and Dayne trained other carers and although it could be daunting at first, with practice they got the hang of it. So far as the
voice
valve
was concerned, she said that she was not trained to deal with it and so if something went wrong, an urgent hospital appointment was required. If it became dislodged, they had to retrieve the
valve
and make sure that the Claimant's puncture is kept open, either by inserting a plug or a 'gastro tube'. They would then contact the SLT team for an emergency appointment but if one was not available, or not for several days, the Claimant would be unable to speak and would have to keep the plug/tube in place until the SLTs could replace the
valve.
She personally had been present for most of the Claimant's many
valve
changes and was keen to learn how to do things well and improve her skills.
valve
changed.
Cullen
and Annie Courtney (carer) were present at the time of her
visit.
During the course of the
visit,
Dayne
Cullen
and the Claimant described the Claimant's stoma care to Mrs Howison and she recorded it in her report (it appears in the section dealing with August 2017 to March 2018, but she later states that these care needs continued as at the time of the report). She also took photographs, which are included within her report, showing "Dayne performing airway care, using a light source to identify debris which is then removed with forceps or suction. I understand that debris can get trapped on the speech
valve
(shown in the last photo), this can be cleaned in-situ with a small brush." Mrs Howison records how the Claimant experiences issues with clearing thick and dry secretions from her airway. She states that the secretions build up and dry out overnight and using an airway tube overnight makes them easier to manage. "During the day and overnight Wilma may need airway management a few times an hour or once every 2-3 hours, this is not predictable. Airway management involves using a suction catheter to remove secretions and forceps if there is a piece of mucus/debris stuck. Her speaking
valve
needs cleaning with a small brush and position adjusting as required, if this leaks then fluid bypasses into her airway. On occasions urgent re-siting/replacement of the speech
valve
is necessary, sometimes this happens monthly, which involves liaising with the SLT team and attending an emergency appointment. Normal planned
valve
changes occur every three months." She records Dayne describing "ad-hoc unpredictable airway management required day and night." So far as the Claimant's
voice
valve
was concerned, Mrs Howison recorded that it dislodged on occasions and the hole at the back of the stoma had to be plugged until the SLT team can arrange to replace the
valve.
On occasions this has taken up to 3 days, during which the Claimant could not speak. Reinsertion of the
valve
was a clinical process that the SLT team fulfilled. Mrs Howison recorded that during her assessment, "[she] witnessed [the Claimant] need unpredictable stoma and airway management with use of suction and forceps 4 times in 2.5 hours."
Cullen
said that she requires constant suctioning of secretions. She reported that she occasionally sleeps 4-5 hours and that secretions build up during that time as she is lying down. She stated that the secretions can be hard in the morning and that the carer might need to suction the secretions two or three times but that at other times, it could be more or less. Ms
Cullen
advised that she uses a nebuliser at least twice a day to make the secretions easier to cough up or to suction. She stated that she might use it more frequently if she has a chest infection, for example. She has two portable suction machines, one of which she takes with her when she goes out. Ms
Cullen
said that she experiences two or three 'bad' episodes per day where the carers need to use 'scissors' to get the phlegm out. Ms
Cullen
reported that she is dependent upon her carers to care for her stoma as her
vision
is poor and she does not, therefore, trust herself looking in the mirror to suction secretions and saliva. She advised that she also has a little tremor in her hand, although this was not evident at the time of my assessment and I have not seen evidence of this in the medical records or other reports." Ms Palmer recorded that Ms
Cullen
"told me that whereas she was previously
very
independent, she is now reliant upon her family and friends to provide 24-hour care as she cannot be left on her own." Ms Palmer recorded that the Claimant had had a
voice
prosthesis fitted, that she continued to be under the care of the St Bartholomew's SLT team, and that her care would be provided by this team for the rest of her life. She recorded that as a result of the
valve
leaking, the Claimant experiences chest infections which last for 3 to 4 weeks. I note that Ms Palmer also recorded that during the assessment, Anna Crowley used the yankauer on one occasion to clear secretions and the forceps on two occasions.
visits,
Mrs
Cullen
coughed several times in the hour I was with her: her carer used the yanker twice, and the forceps once to remove a piece of dried mucus". In February 2024, when the self-changer issue arose, Ms Ainley provided a short supplementary letter dated 23 February 2024 in which she said that "having witnessed the carer Anna Crowley removing a small plug of mucous with a torch and tweezers in daylight, I can see how challenging being independent with tracheotomy management remains for Wilma."
Cullen
to clear with her cough and she became anxious and signalled for suction from Ms Crowley urgently. A small amount of tenacious brown secretions were cleared using suction which Ms
Cullen
had been unable to clear out of her tracheostoma independently."
Cullen
to clear her airway. It is a feature of the evidence that many experts (and other assessors) have witnessed similar care being provided. It is notable, in a case where the honesty of the Claimant is under attack, and the need for care is challenged, that none of the experts/assessors have expressed any concerns as to the authenticity of what they have witnessed. On the contrary, Ms Ainley's letter of 23 February 2024 expressly confirms the challenges the Claimant faces.
via
her stoma. She stated that the Claimant could "independently perform some of the care tasks related to caring for her stoma, but does require assistance from her carers for the majority of tasks due to limited dexterity and ability to
visualise
the stoma/
voice
prosthesis." Furthermore, "the
voice
prosthesis requires frequent cleaning to remove debris from within the
valve
and to keep the flapper functioning. This is done by inserting a small brush into the barrel of the
valve.
Ms
Cullen
requires assistance with this from her carers as she is unable to see the
valve
in order to insert the brush into the barrel." In relation to the
voice
valve,
Ms Holmes recorded that "in Ms
Cullen's
case,
valve
changes are performed by her carer, Ms Crowley, and the St Bartholomew's SLT team." I observe that this description of
valve
changes being performed by Anna Crowley is consistent with the contemporaneous SLT records, as clarified.
very
brief record of what she was told by the Claimant in the course of their Zoom call. The Claimant informed Ms Heathcote that she had a carer present 24 hours a day, seven days a week so as to help clear secretions that may block her stoma and also to assist with household chores. The Claimant also informed Ms Heathcote that she wore glasses for long-sightedness and said that her
vision
made her stoma care difficult. Ms Heathcote recorded that one of the Claimants carers was present during the consultation and on a couple of occasions, the carer intervened to help with suction. Ms Heathcote expressed no reservations about this. She also recorded that the Claimant had her
voice
valve
changed every 4-6 weeks at the hospital, although her carers were being trained to do this at home. Again this is consistent with the contemporaneous SLT notes as clarified.
various
aspects of her claim.
i) "We use a nebuliser several times a day to moisten my airway and to loosen secretions to make it easier to clear them. If I get any increase in secretions for whatever reason, it gets so bad that I cannot breathe and it is
very
frightening. I get regular chest infections and I have to take antibiotics but it takes me a long time to get well again.
ii) The tube gets blocked
very
regularly and has to be suctioned and cleaned out or I cannot breathe. It
varies
depending on weather and environmental conditions, but I estimate that the tube has to be cleaned an average of 5-6 times during the day but a blockage can happen at any time of the day or night. It is essential that it is cleaned carefully because of the risk of infection. It is noisy and can be messy. It is not a pretty sight, watching someone's tube being cleaned out. I am
very
conscious of it and other people's reactions…
iii) My sleep is interrupted because my stoma often needs cleaning late at night during the night or early in the morning."
voice
prosthesis was concerned, she said:-
i) "It has taken a long time to learn how to use the
voice
valve
effectively. People struggled to understand me. The sounds were garbled initially and trying to make others understand me was
very
frustrating indeed.
ii) I'
ve
attended the hospital frequently to undergo a
valve
change. From what I have been told, I have had more
valve
changes than most due to the spasms I have, this situation is ongoing.
iii) Although the
voice
valve
is fixed in place in the puncture (hole) inside the stoma, it can easily become dislodged at any time for example by a body movement or coughing. When this happens, it is important to recover the
voice
valve
and prevent it going into my lungs. If this happened, I would have to have it removed surgically. (I accept that the Claimant believed this to be the case, but I also accept the evidence of Ms Heathcote that this would not in fact require surgery but it would, nevertheless, require a procedure carried out in theatre.)
iv) When the
valve
becomes dislodged, we must ensure the puncture hole is kept open by inserting a tube (similar to a gastric tube) into the puncture hole straight away and seek medical attention. It is
vitally
important that the puncture hole remains open and does not close, because if it closed it would cause major problems and I would need surgery to reopen it.
v)
When the
voice
valve
becomes dislodged, a new
valve
has to be fitted promptly and correctly, but this isn't an easy process. In the past when it happened at the weekend or when the SLT team are not on duty (they run day clinics on Monday to Friday only), I have had to be intubated and remain like this until a qualified clinician could attend to it. Until a
valve
is refitted, I am unable to communicate
verbally
so must rely on others to speak on my behalf.
vi)
My main carer, Anna, has observed the process of replacing the
voice
valve
many times and has been successful at doing it at home but we both know that proper training is needed so that carers can do it competently and with confidence. The hospital SLT staff are sceptical about us being able to do this procedure safety; they emphasise that there is a high risk of infection. (I observe that this is consistent with what we now know to be the true meaning of 'self-changer' and with the contemporaneous SLT notes.)
vii)
Using the
voice
valve,
I can now usually communicate one-to-one for a reasonable time before there is a blockage. When it becomes blocked, I cannot speak until it is cleared.
viii)
It worries me that I am so dependent upon others. The stark fact is that without help, I cannot manage my airway and breathe."
Cullen
"is able to manage some of the features of self-care in relation to her stoma but reports the need for assistance for the majority of these because of reported difficulties with dexterity and her ability to
visualise
her stoma and
voice
prosthesis/
valve.
Her
valve
is changed every three months by her carer, and by the SLT team at St Bartholomew's Hospital. Her carers have received informal training in relation to the management of Ms
Cullen's
prosthesis so that much of the above intervention may be conducted at home." Again this is consistent with the SLT notes as clarified.
Surveillance evidence
Up-dated medical records
voice
prosthesis at home. These records were relied upon by the Defendant and were summarised in the Defendant's Amended Counter-Schedule as follows:-
i) On 21 September 2022, the Claimant had "changed
VP
herself yesterday (against SLT advice)" and "reported that the change went well" and "felt confident in changing
VP
and that it was in properly", and she had been "eating and drinking since with nil concerns".
ii) On 13 December 2022, the Claimant "attended for review on
VP,
has been self changing
VP
at home", and the Claimant then in the clinic "self changed
VP
independently", demonstrating sufficient competency that the speech therapist thereafter had "Nil concerns with [the Claimant's] ability to self change
VP".
iii) On 28 March 2023, the Claimant was documented to be a "competent self changer".
iv) On 23 October 2023, the therapists noted that they themselves "Do not have complete
valve
change history from Dec 2022 onwards as [the Claimant] then started self changing".
i) On Friday 22 July 2022 the Claimant attended with her son Dayne at the outpatients' clinic at the Royal London due to her
voice
valve
having been leaking on and off whilst on holiday in Jamaica. The leak was observed on examination and a
valve
change was indicated. There were 2 SLTs present, but between them they could not change the
valve.
The notes record that "Wilma's
valve
changes are known to be
very
complex, even at senior SLT level. Further support needed from SLTs more experienced in this remit in order to complete change. This was explained to Wilma who was frustrated about not being able to have a
valve
change today." The notes record safety measures pending a
valve
change the following week. Those measures were the use of thickener (something the Claimant particularly dislikes), the placement of a plug and admission for hydration. In relation to the placement of a plug, the notes record: "Plug: tricky placement of plug due to small stoma, deep puncture and angled party wall that makes placement of plug tricky. SLT attempt x4 but not successful." In my
view
this entry provides powerful support for the evidence of the Claimant and her carers about the difficulties that they face in managing her
voice
prosthesis.
ii) The notes also record that the Claimant had contacted the department on 20 September 2022, the day before the first of the entries relied upon by the Defendant, and had informed the SLTs that the change had been carried out with the assistance of her carer. It is not clear why this important detail was not recorded in the notes on 21 September 2022.
Effect of up-dated medical records
voice
valve
management, did have the updated records. They agreed that
voice
prosthesis care is more complex than care of the stoma and if the Claimant was a self-changer for her
voice
prosthesis, which they took to mean someone who is able to independently change their own
voice
prosthesis, then it follows that she must be able to perform care tasks such as cleaning and suctioning. As a result, they agreed that she did not require 24-hour care in future and instead supported the proposition that had been advanced by Marie Palmer in her report, namely that there would be a period of weaning the Claimant off her existing care and thereafter she would require no more than a modest amount of support worker input, supplemented with more intensive assistance during periods of illness.
valve
changes, then it is reasonable for her to complete the other aspects of tracheostomy care with minimal/no carer support. They considered that the provision of funded care had led the Claimant to become disempowered and resigned to living with disability and reliance on others. They specifically agreed that they were not suggesting that the evolution of this reliance on others was deceitful. They did not support 24-hour care into the future. They both now supported Ms Palmer's recommendation that there be a period of rehabilitation to address the Claimant's (perceived) dependence on care and thereafter some planned assistance would be reasonable to complete personal care, together with additional care during periods of illness.
Clarification of the medical records by members of the SLT team at the Royal London Hospital
very
loose term and it somehow indicates that I change my
valve
without any help at all. As you are aware I rely quite heavily on my carers to help meet carry out successful
valve
changes. To be honest I am not sure I would be able to fully perform the change without their help (normally Anna). This is due to the difficulty I normally have is the position of my puncture is awkward, and sometimes I find it quite impossible to see, therefore I rely on help. Also I find it hard to insert gel caps without help. Think it would be a bit daunting to do this entirely on my own. Would it be possible to include in my records that although I am "self changing" I actually rely on carers to assist and help with the
valve
change. Every time we change
valve
I sent a message explaining that myself and my carer have changed the
valve
together. I would just like this position to be clear in my records as it can cause problems for me if interpreted that I am totally independent."
voice
prosthesis self-changer. Wilma is able to self-change prosthesis following previous training with the SLT team. However in order to do this safely and effectively, it requires a carer to be present to support the change. The role of the carer within the change is to enable Wilma to self-change by assisting with tasks such as positioning of mirrors, providing a light source,
visual
confirmation of prosthesis placement in tract,
visual
confirmation of no-leak, and removal of the prosthesis tab. We consider it necessary for Wilma to complete her self-changes with a carer present to ensure it is safe and effective, and to avoid the need to attend the hospital for SLT led changes."
valve
changes had been taking place at home rather than in the hospital, it seems
very
unlikely that it was based on Freya Sparks' own observation of it being done (it appears that the Claimant and Anna Crowley did change the
voice
prosthesis in clinic on 12 December 2022, but Freya Sparks was not the SLT who was present on that occasion).
voice
prosthesis/
valve.
In Wilma's case, "self-changing" means that she no longer needs her treating SLT team to complete her changes at hospital and she can now do her changes safely at home. It is a difficult procedure, and she needs the support of one of her carers, for instance Anna Crowley, to assist with the changes. Whilst she is safe to do a
valve
change at home, the change requires a trained carer present to support and ensure that the change is safe and effective. This is due to the
various
steps involved and the difficult position of Wilma's puncture in her tracheal wall, which Wilma, her carers and her treating SLT team all find a little tricky. I understand that the terminology "self-changing" in Wilma's SLT records can be misunderstood. The records have now been updated and the SLT team are aware that going forwards, that they will document this clearly in Wilma's records."
Further witness evidence
voice
valve
herself and that she required help from either one of the SLTs or one of her carers to do so. She said that although she can do some of the different aspects of the
valve
change, she could not imagine doing it by herself. This was partly because of the position of the puncture into which the
valve
is inserted. She said the position was awkward, situated
very
low and was
very
difficult to see and get to. She had to tilt her head back for the puncture to be appropriately
visible
and in that position, she could not see it herself. She commented that she had slightly poor
vision,
but even with perfect sight it would be difficult to see. She said that she cannot put the
valve
into the puncture by sight or feel and therefore it has to be inserted by someone else. She said that she did not attempt to change her
valve
on her own without a carer or SLT and would not feel confident doing so. She commented that the entry that Freya Sparks had put in the notes, saying that it confirmed that she needed to have a carer present. She said that in reality, she and her carer do it together and do different things each day. Freya Sparks' description was one of the many possible divisions of labour. It was faster and easier for the carer to do most of the change, but precisely who did what did not affect the need for the carer to be present throughout. Sometimes the change was straightforward, sometimes it was not. She described being
very
nervous and frightened by changing
valves.
She described needing help removing secretions from her airway frequently and unpredictably. She described a recent occasion when she and Anna Crowley had been shopping and a large solid piece of phlegm had got stuck, she could not clear it herself and was finding it hard to breathe and Anna Crowley had had to remove it with forceps in the middle of a supermarket aisle. She also described how there had been occasions when she had attempted to clear her own airway and had accidentally dislodged her
valve
due to not being able to see adequately into her stoma. When the
valve
is dislodged, her carer has to insert a gastric tube into the puncture and she cannot speak until the
valve
is replaced. She explained why her claim had been amended following receipt of the updated medical records. She said: "when the joint statements of the meetings of experts were served I was advised that the
value
of the case had changed and that I could no longer claim 24-hour care. I accepted the change in the experts'
views
even though they were based on the misunderstanding of the term in the records of 'self-changing'. I don't think this is fair now."
valve.
She has never done it without someone being there to help. It is really tricky to do and has taken me a while to get better at it and even then sometimes I find it more difficult than at other times. No two
valve
changes are the same." She then went on to explain how she was shown how to do the changes by the SLTs and how she and the Claimant now did the
valve
changes together. She described what was involved and what the Claimant could do. She described how Wilma could use forceps to grab hold of the tag that is attached to the
valve
but which sits outside the stoma (this was confirmed by the
visual
examination of the Claimant's stoma and the
valve
that was in situ on 5 March 2024). In order for the Claimant to be able to do this, Anna Crowley had to hold the mirror and torch in the right position. She described how the Claimant was able to put in the lary tube that is used to stretch the stoma. The next task is to fit a gel cap onto the new
valve,
which she said the Claimant found incredibly difficult and most of the time could not manage it. Anna Crowley said she also found it a fiddly task and it can take her many goes to do it, although sometimes she got it in first time. She said it was a bit like threading a needle. She said that in order to put the new
valve
in, the Claimant has to put her head back and she, Anna Crowley, inserted the new
valve.
It was much easier for her to do it than for the Claimant and so she did it. Then, once the new
valve
was in place, Anna Crowley had to look and check that it had gone in right, which was something that the Claimant could not do. She said they changed the
valve
every 2 to 3 weeks, or if it got dislodged.
valve,
although other carers were learning. If the Claimant was going away on a trip, she would change it just before she goes. If there is a leak whilst the Claimant was away, the carer who was with her would try and clean the
valve
with brushes and if that was unsuccessful, the Claimant would have to drink thickened drinks to stop the leak. If a
valve
was dislodged when Anna Crowley was not present, the carer who was present would need to insert a gastric tube. She estimated that that probably only happened two or three times a year.
very
often throughout the day. The Claimant would try and clear it herself by coughing it out or by using the suction machine. However she found it more difficult to use the forceps to pick out harder bits or bits that are stuck further down. Anna Crowley estimated that she had to step in to help the Claimant about 50% of the time if they were at home and more than that if they are out in order to speed up the process.
Cullen
provided a further witness statement in which he stated that his mother was not a "self-changer" and could not change the
valve
on her own. He said that she had never done it and she relied on one of her carers to help her with the change or to clear the stoma when it got blocked. He said that they went to hospital much less than they used to for the
valve
to be changed. He said that his mother's
valve
was in a
very
awkward position and even some of the SLTs at the hospital found it difficult, which was something he had seen when he had attended appointments with her. This is confirmed by the medical records.
Cullen
provided a witness statement in which he described how he helped his mother clear her stoma if it got blocked. So far as her
valve
was concerned, he had been learning how to change it but he had not yet been able to do it successfully. He said that he found it
very
fiddly to get into the right place and he also struggled with the gel caps. He said that if the
valve
needed changing when he was looking after his mother, he would call either Anna or Dayne. If the
valve
became dislodged then they would have to attend urgently and he would have to insert a gastric tube into the puncture in the meantime. Although he was prepared for such an eventuality, he said that fortunately it had never happened whilst he had been on shift.
Evidence at trial
Inspection of the Claimant's stoma at trial
very
useful supplement to the witness evidence and the photographs that accompany Professor Homer's and Mrs Howison's reports. This was done in court. Present were myself, Mr Hough, Miss Mauladad, Miss Holmes, Ms Heathcote and Anna Crowley. In due course, Miss Holmes prepared a witness statement (15 March 2024) and then she and Ms Heathcote prepared a joint statement (31 May 2024) regarding this examination. In this part of my judgment, I am concerned principally with their observations rather than their opinions. They observed:-
i) Although the Claimant has restricted movement of her right dominant side, she was able to lift her hand to her stoma without
visible
tremor on the day of inspection.
ii) The Claimant can see the entrance to her stoma using a small handheld mirror. There is no dispute that she has sufficient
visualisation
to clean away superficial secretions.
iii) She can lift her chin to maximise the opening of her stoma. In this position, she reports restriction of
view
of the stoma and
voice
prosthesis. Ms Holmes agrees that her
view
is restricted, Ms Heathcote does not. I and counsel stood behind the Claimant whilst she did this, to gain an appreciation of her
view
of the stoma. I accept that it was not possible to replicate fully the Claimant's
view,
but with that caveat, it did appear to me that it would have been
very
difficult for her see inside her stoma and the inspection supported rather than undermined her evidence on this point.
iv) The stoma is small in size and there is agreement that its size is suboptimal for performing
valve
or stoma care. For those present, it was necessary to come up close to the Claimant and, using a handheld torch, to look down into her stoma at a particular angle in order to
visualise
the
valve
which was deep/low within the stoma.
v)
Due to the angle of the posterior wall, the 'face' of the prosthesis was past the
vertical,
looking downwards into the airway. Ms Heathcote added her opinion that "the angle of the prosthesis is
variable,
depending on neck position and muscle tension, but is in general more downward facing". This
variability
of the position of the prosthesis is consistent with the lay witness evidence.
vi)
Ms Holmes stated that the angle of the prosthesis and the barrel limited ease of access and ability to
visualise
the
valve,
particularly for the Claimant but also for those present. I agree, having been one of those present. Miss Holmes said this was consistent with the evidence of the medical records (see the entry in the SLT records for 22 July 2022). Ms Heathcote agreed that the angles were not optimal.
vii)
A tail strap was still attached to the prosthesis. The distal end of the tail strap was secured to the neck underneath the baseplate (i.e. outside the stoma).
viii)
Miss Holmes commented that plastic tweezers have wide arms that would obstruct the
view
into the stoma on an attempt to remove secretions. She further observed that the Claimant has metal forceps that are thinner and obstruct less of the
view
into the stoma. Ms Heathcote did not disagree with these statements, rather she expressed opinions about whether secretions should be cleared with forceps and what the Claimant can and cannot see or do. Those are matters for me to consider, but there was no dispute as to Miss Holmes' description of the size and shape of tweezers and forceps. There can be no sensible dispute that the wider tweezers would obstruct more of the
view
into the stoma than the thinner forceps.
Claimant's evidence at trial
view
that this was partly due to disposition, partly due to general agitation at being in the witness box and partly a reaction to the hostile nature of the cross-examination. This tendency meant that there were times when she did not answer the precise question that had been put and there were times when she gave inaccurate answers, which took time to unpick and correct. It undoubtedly lengthened the process and complicated the evidential picture, but ultimately, in my
view,
it did not reveal dishonesty. Over the course of more than 3 ½ days of cross-examination, she impressed me as an honest witness.
i) She said that no two days were the same. She said that she probably needs help about 50% of the time. She can do some of the stoma care herself because sometimes she can cough secretions up and she is able to wipe them away with a tissue. I observed her doing this at times during the trial. However at other times, with larger secretions, she cannot do this and she needs help from a carer. If a big secretion gets stuck, she has trouble breathing and she needs help to remove it. I observed her breathing become laboured on numerous occasions during the trial and she stepped out of court with Anna Crowley to clear her airway.
ii) She said that suctioning worked for what she called saliva, which I took to mean more watery mucus or similar. She said that she could use the suction machine, although it had been
very
difficult to learn how to use it at first. She can use it if the secretions come to the top of her airway and they are soft. But she cannot use suction if the secretions are deeper down within her airway or if the secretions are larger because they will not pass through the aperture at the end of the suction equipment. For larger secretions that got stuck in her airway, forceps were needed. She could sometimes, but not always, use forceps at the top of her stoma, but if secretions got stuck deeper down, then she could not do it at all and she relied on her carers to remove them using forceps. This was a daily occurrence and she always needed somebody there to help her with it.
iii) It was put to her in the course of cross-examination that she could remove secretions from deeper down using suction and using forceps and she was adamant that she could not.
iv) It was put to her that she had not complained to the SLTs about problems with suctioning and forceps and she said that that was because she could manage her stoma/airway with the help of her carers.
"I'm left with no choice. It's me that's restricted. It's me that feels she can't breathe and that's scary. The reason I have to go into it with the forceps is because the cough is not bringing it up, because it's so big it's just not removing it."
The Defendant further submits that the Claimant must be using tweezers herself, otherwise how would she know that they obscure the
view
into her stoma. The Defendant relies on the following answer by the Claimant:
"You see, the thing is, when they give you the tweezers, the tweezers are one long bit and they're blue and they're quite thick, so when you put the tweezers into my
very
small stoma you can't see anything else."
"Q. One of the things that you told his Lordship and we have seen from your medical records, is you use forceps to go deep down to remove-
A. Well, I don't because I can't do it."
The cross-examination that followed was about whether it was appropriate to use forceps to go deep down into the stoma to remove secretions and whether the SLTs had advised against it. It was being put to the Claimant that it was inappropriate and she was saying that you had to do it. It was in the context of this questioning that the Claimant gave the quoted answer. The questioning was not about whether it was the Claimant or her carer who used the forceps and to characterise her answer as a concession as to who held the forceps is not correct. The cross-examination continued and the Claimant was asked about using a nebuliser and she said that she used a nebuliser every morning but there was not time to set up a nebuliser when she was finding it difficult to breathe and she needed secretions removed. She then said this:
"A. Sorry. I am telling you that I can't clean them big secretions up in my throat. It's scary. I getvery
laboured in my breathing, and it's
very,
![]()
very
scary. It really is
very,
![]()
very
scary. They won't come up. I can't get them up. It's the only way I can get them up, or we can get them up. And with a torch I can't see right down in because I have to put my head back. Anna has to pull the secretions out because they're below the
valve."
This was the only answer that was unambiguous as to who held the forceps and it was Anna Crowley, not the Claimant. The evidence was remarkably consistent from all the witnesses on the question of who removed secretions from deep within her stoma using forceps. The evidence was that this is something that is performed by the Claimant's carers, not by the Claimant herself.
When the cross-examination continued, I raised with counsel whether there were any further instances in the
very
voluminous
medical records of the Claimant having been advised against the use of forceps, other than the single reference that had been put to her, and counsel did not identify any other instances. I then asked counsel if the records showed the SLTs advising the Claimant to use an alternative method of removing secretions and counsel stated that we had heard in evidence the previous day that the hospital had given the Claimant tweezers. It was then that the Claimant explained that tweezers are unsuitable because they are thick and obscure the
view
of the stoma. This was not a concession that she removes secretions from deep within her stoma or that she can
visualise
within her stoma. It was a comment on the suitability of the two types of instrument and it is notable that the Claimant's observations about the disadvantages of tweezers are entirely consistent with the expert evidence.
voice
prosthesis.
valve,
which has a little hole in the middle of it. She said that when this becomes blocked with mucous or debris, it requires something a little bit like a pipe cleaner to be inserted into the centre of the
valve
and rotated in order to clean it. She said that in order to do it, you have to have a mirror and a torch and you cannot do it with one person. She said that occasionally she can do it depending upon the position of her
valve,
but she cannot always do it. She said you had to be able to
visualise
the
valve
in order to do it. Her evidence as to the
variability
of the position of her
voice
prosthesis is consistent with the opinion evidence of Ms Heathcote and her evidence as to the need to be able to see the
valve
in order to clean it is consistent with the expert evidence generally.
valve
changes. There is no dispute that historically this has been done at the hospital by the SLTs. More recently, the evidence is again clear that Anna Crowley and Dayne
Cullen
have been able to do this away from the hospital. It was put to the Claimant in cross-examination that she could change the
valve
herself and she said no she could not. She commented that even the SLTs find it difficult, which is confirmed in the medical records. She was asked about
various
aspects of her
valve
change.
i) She said that it is
very
difficult for her to see her
voice
prosthesis and her puncture, although sometimes she can see something. She said that it moves and her ability to see it depends on the day and how far it has gone down in her neck.
ii) She said that you would prepare the new
valve
before you take out the old one. If you did not do that, you would have to use a dilator which the SLTs like to use, but which she and her carer
very
rarely used. She described the dilator as being difficult to insert and if they did do it, it was done by Anna or whoever was helping her. There had been times when she had managed to insert the dilator herself with assistance from her carers, but she would not attempt it on her own.
iii) In order to prepare the new
valve,
it has to be placed onto the end of a T bar stick. She said that this is a difficult thing to do and sometimes you can do it 10 or 12 times and the bar breaks.
iv) The next step is to insert the
valve
into a gel cap. This is done outside the stoma, before any attempt is made to place it into the stoma and into the puncture. The evidence from several witnesses was that this is a
very
fiddly process. The Claimant said that she finds it particularly difficult. The
valve
itself has to be folded over and squashed and held in that squashed position whilst being pushed into the fragile gel cap. The gel caps can break, split or melt. Successfully getting the
valve
into the gel cap is not easy and the Claimant said that this was something that even the SLTs sometimes cannot do. She said that sometimes you can be there for an hour just trying to get the gel cap on. If it goes in first time, everyone is surprised.
v)
In order to help her carer see into her stoma, she inserts a 'lary tube' into her stoma, which helps to enlarge it slightly. She is able to do this.
vi)
The old
valve
then has to be removed. The Claimant said that if she has left the tag on the old
valve,
then she can pull the old
valve
out.
vii)
The new
valve
then has to be pushed into the puncture site and left in place until the gel cap dissolves. It takes several minutes to dissolve and it pops when it does. The placing of the new
valve
into the puncture site or tract was something that the Claimant was asked about. It was put to her that she could do it herself and she said no, it was something that her carers did. She said that the position of her puncture is such that she finds it
very
very
difficult to see her
valve.
When the
valve
is taken out, it becomes even more difficult for her to see the puncture because she cannot tell the difference between the puncture and the surrounding skin. This is all made even more difficult by the fact that she has to have her head tilted quite far back to allow access to the stoma and the puncture. She said she had tried to do put a
valve
in herself but when she had attempted it, it had gone wrong. She said that for all these reasons, it was her carer who would put the new
valve
in the puncture site/tract.
viii)
Once the new
valve
is in place, she has to have a drink as a test to make sure that it is not leaking.
valve.
She accepted that there were elements of the process that she could do with a greater or lesser degree of difficulty. The only tasks that she said she could do easily and without assistance were the insertion of the lary tube and the removal of the old
valve
that still had its tag attached. Otherwise, all tasks were either
very
difficult or simply too difficult for her to do. She said that she always changed her
valve
with a carer.
voice
valve,
submitting that they undermined her case. I shall deal with them here.
voice
valve.
"Q. If Ms Mauladad is right and what the note says is that the role of the carer is simply to confirm that you have managed to put the prosthesis in place, so, in other words, you do the placing but the observer, the carer is the observer who tells you, "Yes, you've
got it right, it's in ...."
A. Yeah, but it doesn't always happen like that.
Q. Is that correct? Is that what is happening?
A. It doesn't always happen like that, no."
visual
confirmation of the prosthesis placement in the tract" meant the carer actually placing it into the puncture. She was challenged about this and she reiterated more than once that it meant that Anna put the
valve
into the tract. It was accepted by counsel that the Claimant had not told Freya Sparks what to write, and the Claimant said that she had just asked Freya Sparks to explain that she did not do it on her own. We then pick up the quoted questions (from me) and the Claimant's answers. I set out below the entirety of the exchange.
"Q. If Ms Mauladad is right and what the note says is that the role of the carer is simply to confirm that you have managed to put the prosthesis in place, so, in other words, you do the placing but the observer, the carer is the observer who tells you, "Yes, you've
got it right, it's in .... "
A. Yeah, but it doesn't always happen like that.
Q. Is that correct? Is that what is happening?
A. It doesn't always happen like that, no.
Q. Is it you who is placing thevalve
in place?
A. No, the carer places it the tract.
Q. Right.
A. I find itvery
difficult to find the tract. I find it
very,
![]()
very
difficult to see it.
Q. What is being suggested to you is that you are putting it in the tract and the carer is just telling you that you have got it in the right place?
A. No, it doesn't happen like that. The carer puts it in the tract."
valve
in the tract/puncture.
valve
in the tract is supported by what happened on a trip to Rome in 2023. In fact the Claimant's evidence was that she travelled to Rome with a friend called Jackie. Jackie is not one of her regular carers, but she knows how to help her manage her stoma. When the
valve
came out during the trip, she and Jackie tried to put it back but were unsuccessful in getting the
valve
back in. This is consistent with the SLT records dated 13 November 2023. To my mind, the fact that the Claimant and Jackie tried unsuccessfully to put the
valve
back in, in circumstances where there was no one else on hand to assist, does not indicate that the Claimant is capable of changing her
valve
herself. The fact that she was unable to change her
valve
in Rome, when there was every incentive for her to do so if she could, is strong evidence of her inability to change her own
valve.
voice
valve
and/or clean her stoma. This submission derives from an observation made by Ms Heathcote (whose evidence I consider below) for the first time when she was recalled to give evidence on 21 June 2024 and it was said right at the end of cross-examination. In fairness to Ms Heathcote, she did not say that the presence of a mirror means that the Claimant can change her
voice
valve
and clean her stoma. What she said was "I presume she carried the mirror to perform toilet to her stoma". This seems uncontroversial. Although the Claimant was not specifically asked about the mirror, nor were any of her witnesses, there was some evidence of the use of a mirror by the Claimant and other evidence from which such use can reasonably be inferred. For example, the Claimant said at the inspection of her stoma on 5 March 2024 that she can see the entrance to her stoma using a mirror. The Claimant accepts that she can use suction and forceps at the entrance to the stoma, all of which requires her to be looking in a mirror. What she says she is unable to do is to see into her stoma well enough to change her
voice
valve
or reliably clean her
voice
valve,
and she cannot see down into her airway to remove secretions. Anna Crowley gave evidence that there were times when she would hold the mirror so that the Claimant could see to take hold of the tail of the old
valve
(which sits outside the stoma) and pull out the old
valve.
These tasks would all require a mirror. It is not difficult to envisage a mirror being useful for general skincare around the stoma, for use in connection with HME filters, etc. Given the
vulnerability
that her stoma represents, it would be extremely surprising if she did not carry some means of being able to see as much of it as possible.
valve
but she needs help. It seems to me that this assertion is the wrong way round. The evidence of the Claimant is that her carers can change her
valve,
with some help from the Claimant.
vigour
that she had been dishonest and it is something that is pursued by the Defendant in closing submissions. I consider the evidence of it here. The Claimant was taken to the words in the preamble to the care claim: "From January 2017, the Claimant's son became her full-time carer." She agreed that the son being referred to was Dayne. She was then cross-examined on the basis that she had claimed gratuitous care when Dayne was not present, specifically when she was on holiday without him. She was not referred to that part of the same paragraph where it said that he was assisted from time to time by other family members and friends, nor was she referred to a statement to similar effect in the previous paragraph, nor was she referred to that part of her Schedule of Loss where she made a claim in respect of holiday expenses where it said that after her laryngectomy, when she was well enough, she had been "encouraged to resume travelling but she needed to be accompanied by people able to provide care and assistance. She has managed this by relying on family on some trips and for others by goodwill of friends and employed carers willing to accompany her using their own holiday, not being paid for off duty hours and sharing rooms." It was against this background that it was put to her that she was being dishonest. For example, it was put to her that when she travelled to Marrakesh in 2017/18, she knew she was away on holiday and she knew that she was not being provided with 24/7 care by Dayne, and so her claim for 24/7 gratuitous care was dishonest. The Claimant replied that that was "ridiculous". In fact the Claimant's evidence was that she travelled to Marrakesh on two occasions. On the first occasion she travelled with a friend called Anne Docherty who the Claimant said had experience of looking after her own son with cerebral palsy and who specifically knew how to look after the Claimant. On the second occasion she travelled with Annie Courtney, who the Claimant said knew how to do her care from having been shown how to do things by Dayne
Cullen,
Anna Crowley and the Claimant herself, and who subsequently become one of her regular carers. It is not necessary to analyse each trip in the period prior to September 2021 in this way. The Claimant's evidence, which I accept, was that each trip was taken with at least one other person who was able to help her manage her stoma. There is no evidence of solo travel. On occasions the other person was someone like Anne Docherty, a friend who had relevant skills and was shown what to do, but for the most part the other person was one of her regular carers using their own holiday to accompany her. On some occasions it was one carer who accompanied her, on other occasions, when the trip was longer, she travelled in a group and more than one carer was with her. An example of the latter is the trip in July 2022 to celebrate Jodie's 40th birthday, during which the Claimant posted on Facebook: "would not be able to do it without my lovely, dedicated carers you are all amazing". It seems to me that this is entirely consistent with what was being asserted in the Schedule of Loss. The claim for gratuitous care was not limited to the care provided by Dayne
Cullen,
although he undoubtedly provided the bulk of such care. The claim extended to gratuitous care provided by family and friends and it was explained how this worked in relation to holidays. The allegation as formulated in closing submissions is that "the Claimant has dishonestly claimed gratuitous care provided by her son, Dayne
Cullen,
when such care was not provided". I do not accept that submission for the reasons given.
Cullen
had been in receipt of carer's allowance but credit had not been given for it in the Schedule of Loss. The Claimant said that well before she received any funding for her care, she and Dayne were advised to apply for carer's allowance for Dayne. She said it was a
very
small amount of money. When she started to get funding for some of her care, he continued to get carer's allowance because he was looking after her for more hours than he was paid for. She agreed that he continued to get carer's allowance until July 2022. It follows that Dayne was receiving carer's allowance during the period up to September 2021, in respect of which she is making a claim for his gratuitous care. It was not suggested to her that she had made a positive assertion that he did not receive carer's allowance. Instead, it was put to her that she should have declared it and had not done so, to which she replied "declared it to who?". It was put her that she should have put it in her Schedule of Loss and she said that she had not thought it was relevant and it had not crossed her mind. It was being put to her that she had mentioned the funding that she received from the local authority and then CHC, but not the carer's allowance and she said that the CHC funding was in her mind all the time because she gets 24-hour care and she pays her carers out of that funding. The carer's allowance, by contrast, had stopped by the time the claim was being formulated. I observe that, to a lay person, it would not necessarily be obvious that this had a bearing on her claim. Having listened to her evidence, I am satisfied that there was no deliberate concealment of the carer's allowance and that if she had been asked about it by her solicitors, she would have told them. I do not find there to have been dishonesty in relation to the carer's allowance.
Anna Crowley's evidence at trial
valve
changes.
i) She said that she had been caring for the Claimant for a long time and she attended the SLT appointments with the Claimant. She was interested in learning more about how to care for the Claimant and so she took an interest in the
valve
changes that the SLTs carried out and was shown what to do. She would watch what they were doing and she would ask lots of questions because she wanted to make sure that she knew what she was doing because she knew that the Claimant could not do it for herself.
ii) She said that no two
valve
changes were the same. Every day is different.
iii) She said that the Claimant can remove an old
valve.
Anna Crowley gets the mirror and the light into the right position and the Claimant can see the tag and pull out the old
valve.
iv) She said that the Claimant can push in the lary tube, which is a tube that stretches the stoma so that she, Anna Crowley, can see into it more easily.
v)
She said that she, Anna Crowley, fits the gel cap onto the new
valve.
It is fiddly and the Claimant finds it incredibly difficult and most of the time cannot manage it. Anna Crowley said that even she found it difficult, although sometimes she can get it first time.
vi)
She said that she, Anna Crowley, would then insert the new
valve
into the puncture. She said that the Claimant could not do this for herself and that she never had done it for herself. Anna Crowley said that even she found it hard sometimes but she persevered with it. She confirmed that no two
valve
changes are the same and sometimes it is more difficult than at other times. She explained that the Claimant has to put her head up and it is hard for her to see so she, Anna Crowley, has to insert the
valve.
She described the
very
first time that she had done it. She could not remember the date but she remembered that that the Claimant's
valve
was leaking and for some reason the SLT team could not do a
valve
change that day and as a result the Claimant panicked a bit. Anna Crowley was there and she felt like it was her duty to help the Claimant and so she and the Claimant decided to change the
valve
themselves, but she, Anna Crowley, did all the changing. She said that she, Anna Crowley, was terrified because it was the first time that she had actually had to change the
valve.
The Claimant had her head up and Anna Crowley was trying to put the
valve
into the puncture and she was saying that she could not see and so she said that the Claimant took her hand and just sort of guided her and she, Anna Crowley, pushed the
valve
in and it held. There was a slight popping sound which meant that it was in. Anna Crowley said that she was pretty amazed that she had managed it. When she was asked what she meant by the Claimant 'guiding' her hand, she said that the Claimant had just held her hand because she was nervous and her hand was shaking and the Claimant held her hand to steady it. She reiterated that inserting the
valve
was something that she had never seen the Claimant do for herself and it was something that the Claimant could not do for herself.
valve
had been leaking whilst they were in Jamaica and how they had tried to stop the leak and how the Claimant had had to use thickener, but she was clear that she had not been on the flight with the Claimant. The Defendant does not dispute the honesty of Anna Crowley's evidence about this at trial, but submits that she must have deliberately lied in her witness statement and that there can be no other explanation. It seems to me that there may well be other explanations, the most obvious of which is that whoever drafted the statement had misattributed things to Anna Crowley, that had in fact been said or done by someone else, and included them in the statement which she had signed without reading it properly. In considering the Defendant's suggestion that she must have deliberately lied in her statement, I have considered whether such a conclusion is consistent with the way that she
volunteered
the inaccuracy. It was not a concession that was wrung out of her in cross-examination. It was her spontaneous response to seeing the contents of paragraph 19 and it had the overwhelming ring of truth about it. If she had set out to mislead the court in her witness statement, I would have expected her to confirm that paragraph 19 was accurate, but she did the opposite. So far as other explanations are concerned, it is not fanciful to think that whoever prepared the statement had also spoken to Janette Collins as part of the evidence gathering exercise and had misattributed her evidence to Anna Crowley. It is certainly the case that whoever drafted this paragraph had a poor grasp of who was who, because elsewhere in paragraph 19 it says that she travelled to Jamaica to be part of a celebration for "a friend of [the Claimant]". I am quite sure that Anna Crowley would not have described Jodie as "a friend of [the Claimant]". Taking the evidence in the round, I do not find that Anna Crowley lied about the trip to Jamaica in her witness statement. I find that the statement was inaccurate and she failed to read it carefully before signing it, but I do not find that she was dishonest. On the contrary, and somewhat ironically, I find that the way in which the inaccuracy in paragraph 19 came to light provided compelling evidence of her honesty.
Dayne
Cullen's
evidence at trial
Cullen
gave evidence. He had seen his mother being subjected to prolonged and hostile cross-examination and he was clearly nervous. Under similar cross-examination, there were times when he found it difficult to focus, particularly when asked about dates and documents. His evidence in relation to the care that he provides to his mother, and which I considered to be the most important aspect of his evidence, was much more confidently given, although even then he stumbled over his words and it was necessary to make due allowance for nerves. Listening to his evidence, it seemed to me to be abundantly clear that he was honestly describing the care that he has provided and continues to provide to his mother.
voice
valve
and he had done it "the other night". He was asked how long it takes to change her
valve
and he said that it depends. He said "it could take ages to get the gel pack in. The position. Whether or not it's in the morning or evening, whether the back of her neck is straight, whether it's tilted. It could be quick or it could be prolonged." Pausing there, this description of the
variable
position of the puncture/
voice
prosthesis is consistent with the evidence of other witnesses and the expert evidence. He said that he and Anna Crowley were the ones who could do it. He was not cross-examined on the different elements of a
valve
change and on who did what. He also said that he would clean her
voice
valve
with what he described as the pipe cleaning brush, and he explained how the
valve
becomes stiffer when it is on the way out and you can feel this loss of elasticity when you put the pipe cleaning brush into the
valve
to clean it.
Danny
Cullen's
evidence at trial
Cullen
gave evidence. He seemed to me to be an entirely straightforward and honest witness. I have dealt with certain aspects of his evidence elsewhere, such as the surveillance footage and the extent to which the Claimant looks after his children/her grandchildren. His evidence of the care that he provides to his mother, which I have summarised earlier in this judgment, was not challenged and I accept it.
Defendant's surveillance evidence and related lay evidence
very
unsatisfactory aspects to the surveillance evidence: –
i) The surveillance footage itself is not continuous throughout each period of surveillance such that it would, as a stand-alone piece of evidence, demonstrate who did and did not come and go at the Claimant's home. The surveillance footage that we do have, and I am told that it is the entirety of the footage that was taken, is minimal.
ii) There is no evidence from the surveillance operatives to the effect that they kept the Claimant's house under constant surveillance during their shift and captured everything that happened and that if it is not on the footage, it did not happen.
iii) Although there is a proforma statement from each of the operatives stating "I obtained
video
evidence, where possible, of the events that occurred", this is not supported by the evidence. By way of example, there are events recorded in the surveillance logs that the operative purports to have seen, but has not filmed. By way of further example, there are numerous occasions of the operative filming something, but only filming the last few seconds of what was obviously a much longer episode, often in a way that makes it impossible to identify the person being filmed and without any explanation as to why the longer episode had not been filmed. These omissions reinforce concerns about the incomplete nature of this evidence as a whole.
iv) It appears as though, on occasions, the surveillance was being conducted from a significant distance and that, on occasions, the surveillance operative moved to a different location during the period of surveillance, with the obvious risk that the surveillance was not continuous.
v)
Whilst there is some footage of cars parked outside the Claimant's home, it is haphazard and often appears to be incidental. There was no attempt on any of the days to take a comprehensive inventory of the
vehicles
parked in the road at
various
times, such as would have been
valuable
in identifying whose
vehicles
were present at what time.
vi)
The period of surveillance often starts either close to, or well after, the start of the carer's day and ends either well before, or close to the end of the carer's day, with the inevitable risk that handovers have occurred outside the period of surveillance.
visiting
family in Germany. Unsurprisingly the footage did not observe her or her carers coming or going from the property. On Thursday 11 January 2024, the surveillance ended at 15:02. The Claimant's evidence, which I accept and which is confirmed by the flight booking documentation, was that she and Annie Courtney were travelling back that day. Their flight was not due to land at Heathrow until 13:30 and the Claimant's evidence was that they in fact landed at about 14:30. They then collected the Claimant's car from the park and ride and drove back to the Claimant's house, arriving well after the surveillance had ended for the day. Annie Courtney returned home that night, but Dayne
Cullen
was at home with his mother. In passing, I observe that despite this being a short haul trip and despite it being a trip to stay with family, it is conspicuous that the Claimant was still accompanied by one of her carers.
Cullen
had waited until she arrived before leaving for work. Deanna Sharpe had arrived and Dayne
Cullen
had left well before the surveillance commenced at 10:18. At 11:22 Deanna Sharpe is seen at the boot of the Claimant's car (which had been parked in the road when the surveillance began), fetching the Claimant's suitcase from her Germany trip and taking it inside. It is surprising that there is no footage of her emerging from the house and walking to the car. I am satisfied that that is what she did, but I do not understand why it was not captured if the operative had been paying close attention to the property. At 12:38 Janette Collins is shown arriving with a young man and she is seen leaving again at 12:46. At 13:43 Deanna Sharpe comes out and puts something in the rubbish. At 13:46 the young man leaves. The evidence of both the Claimant and Dayne
Cullen
was that he returned home at about 14:30. He explained how, on a Friday, he finishes at 14:00 and it takes about half an hour to get home. He travels to and from work by bicycle. The Claimant's evidence was that he uses "bikes that you have to pay to ride". His arrival home is not captured in the surveillance footage. However when Deanna Sharpe left the property on foot at 14:57 and she was filmed walking away from the property, she walked past a parked Lime bicycle that was parked close by. Deanna Sharpe then turns the corner at the end of Morton Road and walks away from the camera along the adjacent road. It is apparent that there has been activity at the front door that was not captured by the surveillance operative whilst he was filming Deanna Sharpe walking away. The last shot of her is at 14:58:47 and the next shot is at 14:59:04 and it shows the Claimant already standing outside her front door talking to someone out of shot at the foot of the steps leading to her front door. After a short conversation, that person walks up the steps and she hands him some cash and he leaves. The evidence was that this man is an electrician called Mark with whom Dayne
Cullen
works. As Dayne
Cullen
described it, he is a plumber and Mark is an electrician and they work in tandem when it comes to jobs. Mark was buying items from a wholesaler and he was collecting money from Dayne
Cullen
in order to do that. Dayne
Cullen
thought he was probably having a bath, having not long returned from work, which was why his mother had answered the door rather than him. The footage ends at 16:05. I have considered carefully whether I accept the evidence of the Claimant and Dayne
Cullen
that he returned home before Deanna Sharpe left. I accept that he waited until she arrived that morning before going to work. I accept that his normal routine on a Friday meant that he normally returned from work at about 14:30 and that was the specific recollection of the Claimant on this particular day. I reiterate my observations about the incomplete nature of the surveillance footage and how the absence of something on the footage is not determinative of it not having happened. I remind myself that in relation to 24 January 2024 (see below), the footage actually captures the overlap between Anna Crowley arriving and Dayne
Cullen
leaving, which is consistent with what he and the Claimant say about what happened on 12 January 2024. Taking this evidence in the round, I find on balance that Dayne
Cullen
did arrive home at about 14:30 on 12 January 2024.
Cullen
was that he was at home with his mother all day. His evidence was corroborated by the presence of his
van,
clearly
visible
in the footage, parked outside the house when the footage begins and still there when it ends. He does not live within walking distance of his mother and the presence of his
van
is, in my judgement, good evidence of his presence at the property. His evidence was that he did not come over on the Friday night, so that he could enjoy a Friday night off, but he took over from Dayne early on the Saturday morning. He spent most of the weekend at his mother's house. He said that they are both big fans of snooker and he recalled that they watched the snooker together. His evidence was credible and was supported by the footage.
Cullen
gave evidence that he was at home all day with the Claimant. There is nothing in the footage to contradict this evidence.
view
of what she is doing is partly obscured, but the Claimant said she was putting something in the rubbish and that is consistent with what can be seen. In the care experts' joint statement dated 26 June 2024, Ms Palmer said that the Claimant had "advised MP that she cannot bend over as this blocks her stoma. However, she was seen to bend over on surveillance." Ms Palmer was cross-examined about this and it was put to her that, when the Claimant bends forward on the footage, her stoma was not occluded. She replied "that's still being able to bend. She told me she cannot bend" and in re-examination she was shown the footage and she said it showed the Claimant's stoma occluded. In considering this alleged inconsistency, I start by considering Ms Palmer's assertion that the Claimant said she cannot bend over. The source of this assertion is to be found in Ms Palmer's report dated October 2023, which was based on an assessment in October 2022. In that report, she did not record that the Claimant cannot bend at all, she recorded that the Claimant could not bend forward to shave her legs. That is a personal care task that would involve the Claimant looking down and towards her body, a position that would tend to obscure her stoma, and doing so for much more than a few seconds. By contrast, in the footage the Claimant is seen leaning forwards and initially her head is in line with her back. In other words, her body, neck and head are in the same relative positions as they would be if she were standing up looking straight ahead, but she is leaning forward and therefore looking down. She is in that position for less than 2 seconds. She then looks up, moving her chin further away from her chest, and then stands up, this movement taking about a second. Throughout the whole sequence, which lasts for 3 seconds, there is nothing in the relative positions of her head and neck that would suggest that her stoma would be obstructed or blocked. I do not agree with Ms Palmer's comment that it shows the Claimant's stoma being occluded. In my
view,
an assertion that she cannot shave her legs is not inconsistent with what can be seen on the footage. Moreover, if it is approached in a fair-minded fashion, it is obviously not inconsistent.
visibility
jacket cycling away from the house. By the time they are filmed, they are already at some distance from the house with their back to the camera. Again there should have been footage of them emerging from the property and cycling off, from which they could be identified. We know from other evidence that it was Dayne
Cullen,
who had waited until Anna Crowley arrived before leaving for work later than usual, which is entirely consistent with the Claimant's case and with Anna Crowley's evidence about overlap between carers. The next piece of footage, timed almost 2 hours later, shows someone in the driver's seat of Anna Crowley's car driving away from the front of the house. Again there is no footage of her leaving the house or getting into the car. The footage does not show her returning, but her evidence, which I accept, was that she did return about 15 minutes later. She remembered Annie Courtney arriving. The Claimant's evidence was that Annie Courtney arrived at was about 12:00. At 11:55 the footage shows the Claimant going back into her house. It is clear that something, which has not been captured, has caused the Claimant to open the front door, emerge from the house and then turn to go back in. On the available evidence, it seems to me to be probable that this was Annie Courtney arriving. At 12:17 the surveillance log records a parcel delivery to the house, but does not record who answered the door and the incident is not captured on the footage. At 16:00 the footage shows an unidentified stretch of pavement with some parked cars. It is not the pavement outside the Claimant's house where her car had been parked earlier that day and it does not assist in determining whether her car was still there. Indeed, there is no footage after 11:29 from which it is possible to say whether her car was there or not. At 17:00 the surveillance log records a man leaving the address and getting into a taxi. This is not captured on the footage, and the man's earlier arrival is neither recorded in the log nor captured on the footage. The footage ended at 17:00, by which time the Claimant had not left yet. The Claimant's evidence was that she and Annie Courtney drove to Annie Courtney's house in Buckinghamshire that evening, as they were going to Heathrow the following morning to travel to Scotland where the Claimant has family. Her evidence of Annie Courtney coming to collect her is consistent with Dayne
Cullen's
evidence of the usual arrangements for such a trip and the flight from Heathrow the following morning is confirmed by the flight booking documentation.
v
Central Manchester Health Authority [1998] PIQR P323. That was a birth injury case in which the plaintiff alleged that a nurse had been negligent in failing to inform a doctor of the plaintiff's tachycardia, alternatively the doctor had been negligent in failing to attend upon the plaintiff's mother. One of the issues in the case was what the doctor would have done if he had attended. The doctor gave a short statement saying that he had no independent recollection of his involvement in the case. He declined to return from Australia where he was working to give evidence at trial and his statement was admitted into evidence under the Civil Evidence Act 1968. The statement made no reference to what he would have done if he had been summoned by the nurse. The trial judge made findings of fact as to what he would have done if he had been summoned. In making those findings, he drew an adverse inference against the doctor for his failure to attend and give evidence. He found against the Defendant. On appeal, the Court of Appeal held that the trial judge had been "entitled to treat [the doctor's] absence, in the face of a charge that his negligence had been causative of the catastrophe that befell [the plaintiff], as strengthening the case against him on that issue". The circumstances of the present case are entirely different. The position of a doctor, not himself the Defendant but the person who is alleged to have negligently caused a catastrophic brain injury, is entirely different from the position of a peripheral witness who could corroborate the evidence of other witnesses in relation to a relatively minor detail in a much larger claim. In the present case, the Claimant was required to call sufficient evidence to prove her case and she was entitled to decide which witnesses she would call in order to do that. There was no obligation on her to call further evidence. So far as the surveillance evidence was concerned, the Defendant was granted permission to rely upon it on 20 February 2024. The court gave the Claimant until 4pm on 23 February 2024 to file and serve witness statements of fact in response. The trial began on 1 March 2024. Looking at the chronology and the timescale for service of further evidence, it is not surprising that the Claimant did not call further evidence beyond providing updating statements from those witnesses who had already given witness statements and serving one additional statement from her other son Danny, who had been the sole carer on one of the days of the surveillance. In all the circumstances, I decline to draw an adverse inference.
Expert evidence in relation to stoma and
voice
valve
management
ENT: Homer/Heathcote
ENT: Expertise
view,
alongside the SLTs.
Voice
and Swallow. She runs a laryngology service for NHS patients. She is on the Council of the British Laryngological Society and she has lectured and published widely. She does not perform the laryngectomy surgery itself but is involved in the post-operative rehabilitation. She said that she sees patients in the head and neck clinic for five years post-laryngectomy, after which they are discharged, although she has patients who have been on her books for much longer. By way of example, she said that radiotherapy can cause difficulty swallowing and this can necessitate repeated balloon dilations. A lot of these patients also have
voice
valves
and they would be seen at a joint clinic, with Ms Heathcote looking after their swallow and the SLT looking after their
valve.
However she accepted that it is the SLT, not her, who manages the
valve
and who assesses and arranges the patient's care at home. She also accepted that it is the SLT, not her, who is responsible for managing the patient's stoma, setting the patient up with the equipment they need to go home and setting up their care at home, although if the SLT is worried about something, for example if there is some granulation tissue that requires cauterisation, they would ask her to do it.
ENT: Causation
ENT: Stoma/airway management
vulnerable
unless properly looked after. Daily care required frequent cleaning of the stoma and/or tube, which requires some co-ordination using a mirror and some degree of manual dexterity. The additional secretions, mucus and coughing associated with COPD will add to the frequency of needing suction and needing to deal with and prevent crusting. The loss of natural humidification requires mitigation. Regular suction may be required and should always be available. Cough effort can also be reduced or less effective. The harvest of the Claimant's pectoralis major muscle will have contributed to shoulder and neck stiffness.
view
that some patients, like the Claimant, have a degree of neck swelling/thickness (made worse by radiotherapy and surgery), which can make access to the stoma more difficult and which was demonstrated by the photographs within Helen Howison's report. He also expressed the
view
that difficulties with dexterity and
vision
can compromise things further. He said that the assessment of these problems was not something that ENT surgeons dealt with clinically and it was a matter for specialised nurses and allied health professionals.
vision
problems are age related long-sightedness as experienced by the majority of laryngectomees who, despite this, manage to self-suction.
visits
to the witness box and
various
joint statements, she came to accept that the Claimant required care in respect of both her
voice
valve
and her stoma. That being so, it seems to me that the issue of jewellery making was probably redundant. Nevertheless, it was an issue that exercised Ms Palmer and it continued to feature in the Defendant's closing submissions and so for completeness I deal with it here.
i) The Claimant had told a number of the experts that she made jewellery and in her Facebook posts, she had posted pictures of jewellery which she said she had made. However when this was put to her in cross-examination, she replied that she was not making jewellery but marketing it for her friends and carers, Janette and Annie, who were the people who actually made it. She helped market it and put it on Facebook to sell it. The proceeds went to a youth charity that the Claimant had been a trustee of for many years and of which Janette was the CEO. She said that she was not going to put on Facebook that her carers made the jewellery, that was not the sort of thing you said on Facebook. She said that she ordered the beads and she marketed it. She said that if she had made it, she would say so because it was not any problem to her to say that she made jewellery. It was put to her that she was saying she had problems with suctioning and using forceps because of her manual dexterity and making jewellery requires manual dexterity, the implication being that if she could make jewellery, she could care for her stoma. She disagreed that they were comparable, but in any event she maintained that she did not make jewellery.
ii) In isolation, the Claimant's evidence that she did not make jewellery seemed to me to be credible and her denials were convincing. If she had been making jewellery, there seemed no good reason to deny it. The point that was being made – that if she could make jewellery she could manage her stoma and
voice
valve
- did not seem to me to be particularly persuasive, partly because working with your hands in front of you is
very
different from trying to manipulate equipment in reverse within your own stoma, but mainly because the more important point about the Claimant's stoma and
valve
care is her inability to
visualise
within her stoma. By denying that she made jewellery, she placed herself in conflict with the social media posts and what she had said to the experts, with the obvious risk to her credibility. If she had been making jewellery, it would have been much easier just to say so. Yet she denied it and that put her in conflict with other evidence. I therefore asked both Anna Crowley and Dayne
Cullen
about it. I was quite sure that if she had been making jewellery, they would have been aware of her doing so. Neither had been cross-examined about it by the Defendant, nor was either of them asked about it when there was an opportunity to do so after my questions. I asked Anna Crowley if she had ever seen the Claimant make jewellery and she said no. I asked Dayne
Cullen
the same question and he said that he had never seen his mother make jewellery. He said that she could be what he described as a helicopter jewellery maker, in that she knows what would look good, but she does not make jewellery. He said that she could not even thread a needle and that he had had to sew his own school trousers for years. I found each of them to be an otherwise honest witness and I found their evidence on this issue to be convincing. It tipped the scales in favour of the Claimant's account on the issue of making jewellery.
voice
valve
management, he would defer to the SLTs. He was, nevertheless, asked for his opinion on aspects of both. So far as stoma management was concerned, he said that secretions could block the Claimant's stoma so as to pose an immediate risk to her. He said that secretions could impair her airway. He said that "a great big thick globule would impair the airway, particularly if it was hard and crusty", but it could do so "even if it was soft and
very
mucoid and therefore sticky and tenacious". It was put to him that Ms Heathcote had said that the secretions are not going to occlude the Claimant's airway and he said that it can be blocked through secretions, amongst other things. He strongly disagreed with the suggestion that her airway was somehow better after her laryngectomy. He said that the secretions can block the tube
very
very
quickly. It does not take much for that to happen. A patient can therefore go from having no problems and then something happens such as forgetting to suction, or suctioning badly, or some other change in environment, or an exacerbation of COPD etc, and then quite quickly there can be mucus that comes up from the chest and blocks the airway. It is rare that it is life-threatening but it can happen and it is unpredictable. He said that they sometimes see it in hospitalised patients. It was put to him that with coughing, suction and the use of a nebuliser, you are not going to get into such a situation and he replied that the risk is highly mitigated by such measures but the risk is certainly not zero and it can happen. He said that it is highly unlikely to happen with correct and optimal management.
viscous
secretions that are harder to clear. She agreed that the secretions would change slightly with the seasons and also with infections. These thicker, more
viscous
secretions are consistent with the photographs produced by the Claimant showing secretions that had been removed from her airway. She said that more frequent use of an HME and nebuliser would make the Claimant's secretions more manageable and she advised using the nebuliser twice a day. But she accepted that COPD and infections would make secretion removal an ongoing issue throughout the day. She accepted that the sort of episodes that the Claimant experienced during the trial, where she started to cough and she had to clear her stoma (with the assistance of her carer), were absolutely normal and could be expected during the day. If it was not possible to clear her airway in this way, then the nebuliser would be required. Miss Heathcote said that suction could be used, although the secretions may be too big for the pipette, in which case forceps can be used to remove them. She agreed that using forceps was part of routine care. She agreed that in order to use forceps, you have to be able to see where the
valve
is and you also have to be able to see where the secretions are. She said that it was reasonable to use forceps to go down about an inch or so into the stoma, but she would not advocate going any further down into the stoma with forceps. She agreed that the depth indicated by Anna Crowley was reasonable.
voice
prosthesis independently, even with further intensive training. Ms Heathcote said that she thought that with training, the Claimant could manage her stoma care, although she would need help managing her
voice
prosthesis.
Cullen
requires help from carers to manage her stoma care: do you agree?", they replied "Both experts agree".
voice
valve
needed to be kept clean, otherwise it would fail, preventing speech and leading to aspiration if throat contents leak into the airway. They were agreed that the Claimant's stoma is quite small and her
voice
valve
is situated at the back of the stoma. Hence all the challenges applicable to stoma management apply, but "with a significantly greater degree of magnitude". Professor Homer added that for such a stoma, cleaning the
valve
with a brush is difficult and may need doing several times a day. It was not until after this joint statement, that the most recent clinical records were received containing the description of the Claimant as a 'self-changer', and it was later still that the clarification as to the meaning of 'self-changer' was received.
voice
valve
and commented that stiffness in the Claimant's reconstructed pharynx may be a cause of
valve
failure. He described the problems associated with a dislodged
valve,
which, if it falls into the trachea, would inevitably require emergency admission to hospital for bronchoscopy to retrieve the
valve.
He described the problem of leaks around a
valve
and how they may be addressed by a
valve
change, but may require emergency admission. He said that these problems are an occasional but constant threat and what tends to disturb patients most is that they are entirely unpredictable.
valve
was dislodged and fell anteriorly into the lungs, that would be highly distressing for the Claimant and she would need a carer to take her to hospital. It was put to him that if the Claimant's
voice
prosthesis leaks, "all she has to do is go to hospital and get her
valve
replaced". Professor Homer took exception to the phrase "all she has to do". He considered it an inaccurate and unfair way to describe a situation in which the Claimant would have saliva from her throat trickling through into her lungs, giving rise to a potential chest infection and issues with airway safety.
view
that the Claimant was already able to perform independent
voice
prosthesis care and she must therefore also be able to perform independent stoma care.
voice
valve
and she agreed that the Claimant should not change her
voice
valve
by herself and that she needed someone else to assist her in changing it. She was asked why she had not put this change of opinion in writing (or notified the court of it in any other way). She said that the first time she saw Lindsay Lovell's witness statement was on Monday 4 March 2024, which was the second day of trial. She was in court, following proceedings using the electronic trial bundle that she had been provided with, and she came across the statements in the trial bundle. She said that she was not aware of her obligation to the court to put her change of opinion in writing and "[she] presumed that [she] was going to give evidence at some point and these things would come up". This was disappointing for a number of reasons. First, it was a breach of the Practice Direction to CPR Part 35, which provides at paragraph 2.5: "If, after producing a report, an expert's
view
changes on any material matter, such change of
view
should be communicated to all the parties without delay, and when appropriate to the court." Second, at a pre-trial hearing on Wednesday 28 February 2024 I had specifically asked why the defence experts, who had been quick to seize upon the term "self-changer" in the clinical records, had not provided up-dating reports in the light of Lindsay Lovell's evidence that the term did not in fact mean that the Claimant was able to change her
voice
valve
on her own. I was reassured that the new evidence had been sent to the experts. Third, on the first day of trial, Friday 1 March 2024, the issue arose again, and I was told that there had been insufficient time to deal with it yet, but the experts would be at court on Monday and their
views
would be checked. It is disappointing therefore to learn that Ms Heathcote only became aware of Lindsay Lovell's evidence by looking through the trial bundle on Monday 4 March 2024 and that no notice of her revised opinion was received prior to her giving evidence on Friday 8 March 2024.
voice
prosthesis, she agreed that it needed to be cleaned because you can get food sticking in it on one side, mucus on the other side, and you can also have issues with fungal infections. She agreed that it should be cleaned "under
vision"
because of the risk of dislodging the
valve
and it dropping down into the trachea. However she said that SLTs are better able to advise in relation to cleaning the
valve.
valves,
she said that part of the reason that the Claimant gets through so many
valves
is the pressure that she places on the
valve
by her speaking
voice.
She said that this is down to her personality and how much she uses her
voice
and how she uses her
voice,
which is something that is quite hard to modify.
valve
leaks or is dislodged, she said that a patient could drink thickeners, or insert a stoma gastric tube or a plug into the puncture. She observed that a stoma gastric tube is easier to insert than a new
valve,
it being flexible and "they sort of find their way" into the puncture.
valve
changes, she said that the position of the Claimant's
voice
prosthesis within her stoma was not optimal but it could be worse. She thought it was quite easy to see but she accepted that it might be difficult to insert the
valve.
She had not changed the Claimant's
valve
herself and from looking at the Claimant's clinical notes, it appeared to be difficult to change. She said it is a
very
individual thing and long-term patients know more about their condition than anyone else. Pausing there, it seems to me that this reasoning would apply equally to a regular carer such as a patient's partner or in the Claimant's case, to Anna Crowley and Dayne
Cullen,
and their evidence of the difficulties associated with the Claimant's
valve
care should be weighted accordingly. Ms Heathcote agreed with the SLTs that the Claimant remains at least partially dependent upon her carers to undertake tasks such as cleaning the
valve,
changing the
valve,
performing leak tests and undertaking emergency measures when needed such as insertion of a stoma-gastric tube into her puncture if the
voice
prosthesis became dislodged. She thought that the Claimant would continue to need support in relation to her
voice
prosthesis. She agreed that the Claimant is "not safe to undertake changing a prosthesis by herself."
valve
changing at home has been occurring on a regular basis". And she was of the opinion that the Claimant does use the brush (to clean her
valve)
and forceps (for stoma cleaning) effectively. She was of the opinion that the Claimant was a home
valve
changer with, and at times without, assistance.
various
parts of the transcript of the Claimant's evidence and she accepted that her assertion in the joint statement was wrong and the Claimant had not said that she was changing her
valve
at home without assistance. She was taken to the transcript of her own evidence given on 8 March 2024 and she was asked "looking at the evidence in total, do you agree that your recollection is incorrect and [the Claimant] is not able to change her
valve?",
to which she answered "yes". She also said that she was unclear on whether the Claimant could see the
valve
to put a brush into it to clean it, but she said that the Claimant should not necessarily be doing that, particularly if she had a carer to hand.
ENT: Prognosis and care needs
valve
and tracheostomy tube are ever present. He described having a laryngectomy as a life changing event and one which constitutes a major disability. In addition to the physical changes, it has a significant effect on image and self-confidence. He said that the pressure on head and neck services local to the Claimant is such that it is unrealistic to think that she could simply be seen rapidly within the NHS should problems arise. He reaffirmed that the assessment of the Claimant's care needs was for specialised nurses and allied health professionals, particularly SLTs, and that he and Ms Heathcote had deferred to their opinion. He agreed with the contents of the updated joint statements of the SLT experts.
voice
valve
management, he would defer to the SLTs.
valve,
but most often that person would be the patient's partner "who doesn't come on a salary". She also suggested that when there was a problem with the
valve,
the Claimant did not have to change her
valve,
she could just not use her
voice
so much and use thickener (something the Claimant particularly dislikes and which Ms Heathcote herself described as "
very
unpleasant") and attend hospital to have it dealt with by the SLTs. She observed that the reason the Claimant and her carers have changed the Claimant's
valve
is because she is desperate to get on with her life and when she has not been able to see a SLT on the day and has been told to come back the next day, she and her carers have changed the
valve
at home. It was put to her that that is what many patients do, with the support of their family and friends, and Ms Heathcote said that the difference was that they are not paid carers. She seemed to be implying that in the absence of a partner who was prepared to provide this care for free, the Claimant ought to fall back on not speaking, using thickeners and waiting for an appointment. Later in cross-examination the SLTs' agreed joint statement that "up to 50% of people post-laryngectomy are not fully independent in the care of their stoma and/or
voice
prosthesis. Most often they have a partner or other family member who is able to assist with care tasks at home" was put to her and she agreed with it. Later still she said that "it's about optimising life and if you took away a lot of that care, she would still live, but she would not live the life that she wants, and that is the critical thing, isn't it? If she wants to live a life of travel, and all the other things that she does, then she is going to need more, you know more intense support, than if she is just at home with a hospital round the corner." She observed that the Claimant had done exceptionally well and had achieved an awful lot with the support of her family.
view
and she said yes.
ENT: Conclusions
very
little between them.
SLT: Holmes/Williams
SLT: Expertise
valve,
competency and training,
voice
prosthesis management and swallowing management are primarily under the remit of the SLT." I observe that this is entirely consistent with the evidence of Professor Homer.
view)
when it comes to stoma and
voice
prosthesis management. It is also conspicuous that the SLT experts in this case are in complete agreement. I accept their evidence.
vigour
and her conclusions challenged, notwithstanding Mr Williams' agreement with her. I therefore record my
views.
I found her to be a thoroughly impressive witness, expert in her field and balanced in her approach. I accept her evidence. Mr Williams was also called. He and Ms Holmes had been agreed in their joint statements, which he confirmed. He had now heard the ENT evidence and he had heard Ms Holmes being cross-examined. He was asked if there was anything in his evidence (i.e. his agreement with Ms Holmes) that he wished to change and he confirmed that there was not. In these circumstances he was not cross-examined. I accept his evidence.
SLT: Stoma/airway management
i) Although most people with laryngectomy are able to manage without suction as they progress through their rehabilitation post-surgery, some people with laryngectomy continue to require suctioning of secretions years after their operation. This is more commonly seen in people who have co-morbidities such as COPD as they often have higher secretion loads to manage.
ii) Nebulising is not always sufficient to completely loosen the secretions to the point where they can be suctioned from the entrance of the stoma.
iii) Suctioning can be more difficult where the stoma is small. When a
voice
prosthesis is in situ, there must be a high degree of caution used while suctioning so that the
voice
prosthesis is not dislodged by the suction pipette. This requires adequate
visualisation
of the
voice
prosthesis, alongside dexterity to manipulate the pipette. Deep suction requires a
view
into the stoma to avoid dislodging the
valve
or causing suction trauma to the tracheal tissues.
iv) It is common practice for SLTs to provide metal forceps to people with laryngectomy, for the patient or a carer to use to remove secretions from the stoma. Tweezers are less suitable as the ones that are routinely provided are wide and will obstruct the
view
into the stoma significantly.
voice
prosthesis management generally, they were agreed on the following:-
i) The
voice
prosthesis must be cleaned 1-3 times daily as a minimum, especially after mealtimes as often the end of the
voice
prosthesis that sits in the food-pipe can become blocked from food and drink passing over it. The
voice
prosthesis also needs cleaning ad-hoc throughout the day as it can become blocked at any time, by saliva, by reflux gastric contents or by chest secretions. Blockages can result in a partial or complete loss of
voice
and can also result in leakage of saliva/food/fluid through the
voice
prosthesis and into the lungs, which poses a risk of respiratory complications such as a chest infection. Cleaning a
voice
prosthesis requires the insertion of a wire/bristled brush into the barrel of the
voice
prosthesis, which is only a few millimetres in diameter and can be obscured by secretions. It is imperative to be able to
visualise
the
valve
to be able to clean it.
ii) When the
voice
prosthesis begins to leak frequently, it is a sign that it requires replacing with a new
voice
prosthesis. This can be done by the individual themselves in certain cases; by trained family members or carers, or hospital-based SLT services. Not every option is appropriate for all people with laryngectomy, and can depend upon many factors such as the type of
voice
prosthesis that is in place, the complexity of changing the prosthesis, the size of the stoma and individual factors such as
vision
and dexterity.
voice
prosthesis in particular, they were agreed that there are features of the Claimant's altered anatomy and personality which are relevant to the longevity of her
voice
prostheses. They are:-
i) The Claimant's puncture/
voice
prosthesis sits in tissue over which the peristaltic wave passes. This is most likely due to incomplete myotomy. The result is that the
voice
prosthesis is continually squeezed during swallowing, which contributes to leakage around the prosthesis.
ii) The Claimant's puncture/
voice
prosthesis sits in irradiated tissue, which is friable and less able to sit snugly around the
voice
prosthesis, making it prone to peripheral leak.
iii) The Claimant puts a high
vocal
demand on her
voice
prosthesis.
SLT: Care needs of laryngectomy patients generally
i) For a person with a laryngectomy, who also has undergone surgical
voice
restoration, either they themselves or a carer must be competent in caring for both the stoma and
voice
prosthesis in order for them to be able to live independently.
ii) From their clinical experience, the SLT experts agree that up to 50% of people post-laryngectomy are not fully independent in the care of their stoma and/or
voice
prosthesis, but most often they have a partner or other family member who is able to assist with care tasks at home.
iii) The proportion of people who require the provision of 24-hour care from external services, i.e. private or care home facilities, would be around 10%. This figure would be higher but for the fact that the anticipation of someone needing 24-hour care is often a reason why surgery would not be offered at all, or would be offered without surgical
voice
restoration.
SLT: Claimant's care needs
i) They are in agreement that the Claimant's care needs are unpredictable and that, consistent with her high secretion load, she requires frequent cleaning of her stoma and
voice
prosthesis. They are agreed that the urgency of these care tasks can
vary
from routine to emergency without any predictability.
ii) They respect the Claimant's account of what she can and cannot see of her stoma and the
voice
prosthesis. It seems to me that, inferentially, this must mean that her evidence on this point is not inconsistent with their experience as SLTs.
iii) They are agreed that the position of the Claimant's
voice
prosthesis is such that it is easier for a third party to see and access it, than it is for the Claimant herself. They are in agreement with the comments to this effect contained within the clinical records (see SLT records for 22 July 2022).
iv) They are agreed that the Claimant is unable to
visualise
the
voice
prosthesis in the stoma to any functional benefit. Even a partial or intermittent
view
is not sufficient for the purposes of undertaking care tasks safely. The factors that restrict the Claimant's ability to
visualise
her
voice
prosthesis include the sub optimal size of her stoma, the position of the
voice
prosthesis within the stoma, the Claimant's
visual
acuity and the fact that the introduction of any tools into the stoma takes up most of the space within the stoma and obscures the
view.
v)
So far as cleaning her
voice
prosthesis is concerned, they are agreed that she is unsafe to perform this task independently. In order to clean it, it is necessary to be able to see it. Although she can attempt to get the brush into the barrel of her
valve,
she is unable to do so accurately, risking trauma to the tissues of her trachea and dislodgement of the
voice
prosthesis itself.
vi)
So far as changing her
voice
prosthesis is concerned, they are agreed that the Claimant has a higher than usual turnover of
voice
prostheses due to the factors set out above. They are further agreed that she is not able to safely or independently change her
voice
prosthesis without the assistance of her carers. Safe independence in care would require the Claimant to demonstrate an ability to safely and competently perform all procedures associated with stoma and
valve
care to the satisfaction of her treating SLT team. This is usually done through a competency-based document, the exact nature of which differs from team to team. The Claimant has not been able to demonstrate such competency and is therefore considered unsafe to care for her own stoma and
valve
by her treating SLT team and also by both SLT experts.
vii)
So far as stoma and airway management is concerned, they are agreed that the Claimant can see the entrance to her stoma using a mirror but any
view
beyond the entrance is extremely limited. They are agreed that the Claimant is able to safely remove secretions from the entrance to her stoma using the suction pipette and using forceps. However, they are agreed that she would be unsafe to attempt to remove secretions from deep within her stoma due to lack of
visualisation,
the risk of trauma to the tracheal tissues and the risk of dislodging the
voice
prosthesis. They are agreed that, with appropriate training, these tasks can be performed safely by carers as they have a better
view
into the stoma and can ensure that they are not dislodging the
valve
or causing suction trauma to the tracheal tissues.
viii)
They are agreed that the Claimant is incompetent in caring for her laryngectomy and stoma independently.
ix) They are agreed that she requires 24-hour care to meet these needs.
Care: Howison/Palmer
Velindre
Hospital, a specialist cancer centre. From 2006 until 2021, she was a lung cancer and mesothelioma specialist and was the lead nurse at the Aneurin Bevan University Health Board, another NHS hospital. In this role, she and her colleagues bridged the gap between the secondary care acute setting and the community. She worked in an outpatient setting, and also
visited
patients at home, facilitating their care between oncology hospitals, community nurses, palliative care and the outpatient setting. From April 2021 to May 2022, she was a cancer information nurse specialist with Macmillan, giving advice and support to people living with cancer. Alongside this work, from October 2019 until 2021, she had her own independent practice as an expert witness. In 2021, she joined Charlotte Wells & Co and since May 2022, her work has been exclusively that of an expert witness. She prepares between 25 and 30 reports each year. To date, although available to be instructed by both Claimants and Defendants, her instructions have been exclusively from Claimants. She has not constructed, designed or managed a care package in the community.
very
broad-based. However, she does have experience of developing care packages. She has also worked as a case manager with Harrison Associates and worked with clients who are under the Court of Protection. She has also worked as an NHS manager. She has been an expert witness since 2003 and is currently in independent practice. Her instructions are a mix of Claimant (40%), Defendant (58%) and joint (2%) instructions.
Findings of fact in relation to management of the Claimant's stoma and
voice
valve
various
submissions. I have included my observations on the evidence elsewhere in this judgment and it is not necessary to repeat them here. But put simply, the Claimant's account of her condition, the difficulties she faces in the management of her stoma/airway and
voice
valve
and the assistance that she needs and has received, is strongly supported by the lay witness evidence, the factual evidence of experts who have seen her encounter these difficulties during assessments and the opinion evidence of those experts with the greatest experience and expertise in this field, namely Professor Homer, Ms Holmes and Mr Williams. I have considered and rejected the Defendant's allegations of fundamental dishonesty for the reasons given later in this judgment. In all the circumstances, my overall assessment of the Claimant is that she was an honest witness and I accept her evidence.
voice
valve
are as follows.
voice
prosthesis is situated deep/low within the stoma. Due to the angle of the posterior wall, the 'face' of the prosthesis is generally past the
vertical,
looking downwards into the airway. There is day to day
variability
in the position of the
voice
prosthesis, depending on neck position and muscle tension.
visibility
within the Claimant's stoma is made more difficult by a degree of neck swelling/thickness consequent upon radiotherapy and surgery.
valve
make stoma and
valve
management much more difficult. All the normal challenges that apply to stoma and
valve
management apply in the Claimant's case, but with a significantly greater degree of magnitude.
voice
prosthesis management within the stoma, the Claimant has to tilt her head backwards. In this position, it becomes
very
difficult for her to see into her stoma. She is sometimes able to see her
voice
prosthesis, depending on its position, but she cannot do so reliably. She cannot see down into her stoma below the level of the entrance.
voice
valve,
or to look down into her stoma, it is necessary to come up close to the Claimant and, using a handheld torch, to look down into her stoma at a particular angle.
valve
management.
Stoma/airway management
visualise
her stoma at all. She can
visualise
the entrance to her stoma sufficiently well to be able to use suction and forceps at the entrance to her stoma or just inside, although this is not risk-free.
voice
prosthesis. They cause her significant respiratory distress and feelings of panic and they need to be removed quickly. In addition, there is a small risk that they will occlude her airway altogether, which would be life-threatening. In order to ensure that this risk does not materialise, correct and optimal management is required. She cannot see down into her stoma in order to remove these secretions herself, whether by suction or forceps or otherwise. She is dependent on her carers to remove them for her, using either suction or forceps. Her carers are able to use suction and forceps below the entrance of her stoma and below the level of her
voice
valve.
This is a practice that is approved by the SLT experts and can be performed safely by the Claimant's carers. This aspect of her stoma/airway care is required intermittently and unpredictably throughout the day and night. This has been the case since her laryngectomy and it continues. It will not change in future.
voice
valve
must be cleaned after meals and on an ad-hoc basis throughout the day. The consequences of not cleaning the
valve
are loss or partial loss of
voice
and a risk of leakage of saliva/food/fluid into the lungs, with risk of chest infection. In order to clean the
valve,
it is necessary to be able to see it, in order to insert the brush into the
valve
accurately and avoid causing trauma to the tissues of her trachea and/or dislodging the
valve.
The Claimant can attempt to do this, but she is unable to see the
valve
sufficiently reliably to be able to do it accurately and therefore safely. She needs a carer to clean her
valve
for her.
voice
valve
starts to leak, it needs to be changed. The Claimant experiences a higher than normal turnover of
voice
valves
for a number of reasons. These include the way she uses her
voice
(something that is innate and difficult to modify), the fact that the puncture sits in tissue over which the peristaltic wave passes and the fact that the puncture sits in irradiated tissue which is friable and less able to sit snugly around the prosthesis.
voice
valve
starts to leak, and if for any reason it cannot be changed, she must either drink thickened fluids, which she finds
very
unpleasant, or a stoma gastric tube must be inserted into the puncture by a carer, or a plug must be inserted by a carer to prevent leaks.
valve
needs to be changed, she is unable to change it herself.
valve
changes were carried out by the SLTs at the hospital. Thereafter, the Claimant's carers have been changing her
valve
at home, with some
very
limited assistance from the Claimant.
valve
provided the 'tail' of the
valve
is still attached and is sitting outside her stoma. She can also insert a 'lary tube' which stretches her stoma. Neither of these tasks is difficult.
valve.
She is not particularly dextrous and she finds this extremely difficult to do. She is reliant on her carers for this aspect of a
valve
change. Further, and of central importance to a
valve
change, the Claimant cannot insert the new
valve
into the puncture and cannot
visually
confirm that the new
valve
is securely in the puncture/tract and is not leaking. She cannot reliably see the puncture, into which the new
valve
must be inserted, and she cannot insert a new
valve
by feel. She has attempted to insert a
valve
in the past, but has not been successful. She is reliant on her carers for these central aspects of a
valve
change.
valve
and carry out her
valve
changes to date and will remain reliant on others in future.
Past need for, and provision of, care
voice
valve
management, as set out above, have been present since her laryngectomy. She has needed to have someone on hand at all times to assist her as and when required, during the day and also at night.
valve.
Future need for care
ALLEGATIONS OF FUNDAMENTAL DISHONESTY
(i) 'Self-changer' allegation
Pleaded allegation
voice
valves
herself since December 2022. The Defendant's case was that the Claimant's evidence that she could not change her
voice
valve
was dishonest. It was further the Defendant's case that if she was able to change her
voice
valve,
she must also be able to manage her stoma and therefore her evidence that she could not do so was also dishonest.
voice
prosthesis on her own and she has not been doing so since December 2022 or at all. Her evidence that she cannot do so and has not been doing so is, in my judgement, entirely honest. The first allegation of fundamental dishonesty, as pleaded, is dismissed.
Allegation advanced in closing submissions.
voice
prosthesis (with or without the assistance of a carer). This was dishonest."
view
there is nothing in this allegation. The Claimant's case is that she cannot change her
voice
valve
and is reliant on others. As I have found, she is unable to change her
voice
valve
herself and has not been doing so. She is reliant on others to change her
voice
valve.
The
very
limited tasks associated with a
valve
change that the Claimant is able to undertake herself do not make her any less reliant on others for a
valve
change. In my judgement there was nothing for her to declare. I reject the re-cast allegation that she has been dishonest.
(ii) & (iii) Allegations of fundamental dishonesty in relation to payments to her carers during lockdown 2020 and whilst she was on holiday
visiting.
The third allegation of fundamental dishonesty is that the Claimant dishonestly continued to pay her carers during periods when she went away on holiday, notwithstanding the fact that the carer(s) concerned did not accompany her on the holiday. These two allegations of fundamental dishonesty took up a
very
significant amount of time at trial, with the Claimant being subjected to
very
lengthy cross-examination about them.
valid
target for an allegation of fundamental dishonesty. The Defendant contends that by the inclusion of this claim for an indemnity in the Schedule of Loss, the Claimant had incorporated her paid care into her claim.
"An indemnity is claimed under the principle in Avon
v
Hooper in respect of monies and assistance provided by third parties who may (in respect of past or future expenditure) reclaim payment or otherwise charge the Claimant for the same. The Claimant reserves the right to amend the Schedule on receipt from any such third parties of details of the cost of such provision."
v
Hooper [1997] 1 WLR 1605 was a case in which the Claimant, a minor who had suffered a severe and life-limiting birth injury, had been accommodated by his local authority for many years without charge. When the Claimant's claim against the negligent health authority was settled, the settlement included an indemnity by which the Health Authority agreed to indemnify the Claimant (and his estate) against any sums he may be charged by the local authority for his past accommodation. The local authority then sought to charge the Claimant for that past accommodation pursuant to section 17 of the Health and Social Services and Social Security Adjudications Act 1983 and the Claimant in turn sought to enforce the indemnity against the Health Authority. The case turned on the interpretation of section 17 of the 1983 Act (which dealt with charges for local authority services) and whether it permitted the local authority to charge the Claimant for his past accommodation. The Court held that it did, which meant that the Health Authority was liable to indemnify the Claimant for those charges. The "principle in Avon
v
Hooper" therefore applied to a situation where a local authority had provided services to a Claimant in the past for which it could have charged under section 17 but had not yet sought to do so, and in respect of which it could yet seek to impose a charge. That is not the position with the NHS. Indeed, in relation to an indemnity sought by the Defendant in relation to future losses, which I address below, the Defendant specifically relies on the non-means tested nature of the Claimant's NHS care. Avon
v
Hooper and Section 17 apply to local authorities, not to the NHS.
v
Hooper [1997] 1 WLR 1605 concerned charges being made under Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 for services otherwise provided under other specified statutory provisions. The effective statutory services that applied in Avon have all since been repealed and withdrawn, and all that is left in the Act is limited to charges for services provided under paragraph 1 of Part II of Schedule 9 to that Act, namely the provision of meals and recreation for old people, which services do not arise in the present claim. The Claimant pleads no statutory basis or risk for the local authority recovering any payments made or otherwise making any other charges in due course, absent which statutory basis or risk, there is no basis for an indemnity. Further, in Avon, the indemnity arose by agreement, so Avon is not any authority for the Court having jurisdiction to impose such an indemnity, which jurisdiction it is denied that the Court has. Further, where the funding that the Claimant has managed to secure from the local authority is so
vastly
in excess of what she might have needed or might now need as a result of her laryngectomy and any negligence, so it is denied that the Defendant can be under any obligation to indemnify against any recovery by the local authority."
(ii) Paying carers during lockdown
very
complimentary about her record keeping.
very
large number of them referred to PAYE records and invoices relating to the Claimant's carers, requiring the Claimant to look at records and transpose the contents of the records into her answers. Amongst those questions, she was asked (questions 18-21) about 3 invoices for Annie Courtney that related to April, May and June 2020 and 1 invoice for Dayne
Cullen
relating to April 2020. In relation to Annie Courtney's invoices, which stated that she was being paid for providing sickness and holiday cover and which stated the number of hours for which she was paid, the Claimant was asked a number of questions, in particular what hours Annie Courtney worked and for details of the holidays that she was covering. In relation to Dayne
Cullen's
invoice, which also stated the number of hours for which he was paid, the Claimant was asked a number of questions that related to general matters and to other months, but she was also asked how many hours Dayne actually worked that month. The questions did not identify the period as being one of lockdown, nor did the questions identify, or ask for explanation of, any inconsistency between the Claimant's witness statement about lockdown and the invoices (both of which the Defendant had by that stage). Mr Hough criticises them as badly drafted or trick questions. I observe that litigation is adversarial and the Defendant was entitled to ask the questions as she saw fit. However, with the benefit of hindsight, it seems to me that the whole exercise was
very
vulnerable
to an element of document fatigue, with the Claimant mechanically reciting what was on the invoices without much additional thought, and with that risk increasing as she worked her way through the
very
long list of questions. In her answers, the Claimant gave answers in accordance with what was on the face of the invoice. She did not say that she was isolating with Dayne and her other carers were not coming in.
Cullen
for January 2021. However there was no clear evidence that the Claimant isolated with Dayne during that lockdown and the Claimant was not asked about those invoices. In the circumstances I do not consider them further, although the general analysis below would apply.
very
high and no one could come into my house. My son and I isolated and he became my full time carer again for several months." Dayne
Cullen
said the same thing in his witness statement dated 11 May 2023. These statements had been served by the time of the Part 18 Request. The Claimant had also said the same thing to the experts instructed in the case. For example in her report dated June 2023, Helen Howison recorded "son met all care needs in isolation through Covid-19 lockdown, funding continued" and later in the report she recorded that "when the national lockdown occurred in March 2020 Wilma was clinically
vulnerable
and Dayne once again became her sole carer without any respite. By July 2020 local services had begun to make appropriate arrangements for PPE and covid testing so that staff could resume their duties." By way of further example, in her report dated June 2023, Dr Carstairs recorded the care arrangements in place prior to March 2020 and then recorded that "[a]ll this came to an abrupt end in March 2020 when the pandemic restrictions were put in place and Dayne and Ms
Cullen
had to isolate; Dayne became the sole carer again until July when care staff were allowed to work again." These reports were served well before the Part 18 Request was made. To my mind these statements and reports are not consistent with the suggestion that the Claimant has set out to give the impression that her carers continued to attend throughout lockdown.
(iii) Paying her carers whilst she was on holiday
very
complimentary about her record keeping. She was asked whether she told her funders about paying her carers whilst she was away and she said that she was not aware that she had to tell them. If she had been told she had to do so, then she would have done, but it did not occur to her that she needed to. She said that the auditor knew that she went away on holiday.
(iv) Defendant's surveillance evidence
(
v)
Claim for a stairlift
Cullen
endorse this condition." He did not express any reservations about this reported breathlessness. When Dr Barnes, consultant respiratory and general physician, saw her on 30 September 2022, he recorded her as having no problems with breathlessness, yet in the opinion section of his report he said that the exercise tolerance that she reported to him would be MRC Grade 2. In their joint statement, Dr Evans considered that she had 20% respiratory disability. Dr Barnes estimated ongoing MRC grade 2. Neither expressed any concerns about the apparent
variation
in what had been reported to each of them.
vary
due to a multitude of factors and so Ms Ainley's findings could have been an accurate representation of the Claimant's breathlessness at that point.
variation
of an individual's breathlessness and could be attributable to the Claimant's health on the given day. They agreed that the use of exercise equipment such as an exercise bike would benefit the Claimant. They agreed that a stairlift was not required.
viscous
secretions. As a general proposition, in
view
of this background it would not be especially surprising if she experienced some degree of breathless on climbing stairs. If I then look at the expert respiratory evidence in the case, I observe that all four of the respiratory experts express the
view
that the Claimant's MRC score would be consistent with (at least) breathlessness on walking up a slight hill. It is difficult to see how that differs greatly from walking up 2 flights of steep stairs. If I then look at the Claimant's observed ability to climb stairs, the best evidence of that comes from the respiratory physiotherapists. As between their reports, if I were required to choose between their findings, I would prefer those of Ms Ainley because she has actually set out what she got the Claimant to do, and what she observed. Ms Spencer's report is not so specific. However it is not necessary to prefer one over the other because they are agreed that their respective findings are within the normal
variation
of an individual's breathlessness. That, to my mind, explains the
variability
of reported breathlessness to Dr Evans and Dr Barnes, and the entry in the medical records upon which the Defendant relies. It also explains the lack of reservation in the joint report of Dr Evans/Dr Barnes in relation to the different reports that they received. Against such a background, and the Claimant's evidence that she had been recommended a stairlift by a local occupational therapist, it is unremarkable that it was included in the claim, and equally unremarkable that it was withdrawn when it was not supported by the respiratory physiotherapists. In all the circumstances, I cannot see that the claim was in any way dishonest.
(
vi)
Claim for loss of amenity
Effects on social life
various
medical reports and in the witness statements of others. There was no challenge to this part of the evidence. Pre-laryngectomy, the Claimant was a highly social, free-spirited individual. She described herself in her witness statement as a fun loving, outgoing, gregarious person with a full and active social life. She enjoyed meeting up with friends several times a week, for example to go open swimming and going for a sauna afterwards. She used to enjoy activities such as cycling and jogging. She used to regularly meet with friends for a drink in the local pub and often went out for meals. Indeed in her evidence at trial she described herself as being out every night playing pool, playing darts and going to clubs. She was evidently a
very
confident person who used to love singing and enjoyed karaoke and would often run karaoke sessions on behalf of friends for parties and for the local youth charity family fun days. She had an enthusiasm for performing her own poetry at open mic events. She used to love social occasions and had a passion for cooking and food. She used to enjoy making a meal and having a lot of people round to share it. She was actively involved in the development of a local youth group, helping them gain charitable status and being
very
actively involved in attending meetings, including residential weekends and activity trips, and helping to organise community fun days and other events.
very
significantly curtailed.
video
that accompanied the Facebook post. The Claimant said that she was not sure that the person in the thumbnail was her. The
video
was not in evidence. The Claimant was asked to look for the
video
during the trial and said that she could not find it. The Defendant made much of her failure to produce the
video,
accusing her of dishonesty in cross-examination and again in written closing submissions. That being so, it was
very
surprising to be told in the course of oral closing submissions that the Defendant's solicitors had in fact had the
video
in their possession during the trial. They had not previously mentioned this to counsel or the court, and it has not been disclosed or relied upon, despite the fact that the Defendant bears the burden of proof in relation to fundamental dishonesty. In all these circumstances, I conclude that this post does not support an allegation of dishonesty.
valve
care are socially embarrassing and she feels agitated having to do them in public. She describes how this has led to her starting to lose confidence in herself and she has become withdrawn. She now prefers friends and family to come to her rather than go to a restaurant as it is less problematic. She used to love social occasions but she now describes being reluctant to go out and feeling quite socially excluded. Apart from her carers, she does not really see many people. The Claimant was cross-examined about socialising and going to restaurants. In the Defendant's closing submissions, it is said "the Claimant's evidence when cross-examined about [her social media posts] was that she socialised only for celebrations birthdays and anniversaries". That was not how I understood her evidence. It was put to her in cross-examination: "But you have socialised over the years since 2017? You have been out to restaurants, have you not?", to which she replied "For celebrations, birthdays, anniversaries, yes, yes I have." I understood her answer to refer to restaurants, not the whole of her socialising. She said that she does occasionally go to restaurants but she said that there are 365 days in the year and she only goes out on a few of them. In closing the Defendant points to 46 Facebook entries that indicate socialising of one sort or another. They span a period of 4 years, which equates to approximately 12 times a years, although I bear in mind that over the 6 years for which the Defendant has obtained her Facebook posts, it is less frequent still. On any
view
this is a
very
significant reduction from her pre-laryngectomy social life where she was out almost every night. This reduction is consistent, in my
view,
with the social embarrassment and agitation which I accept she experiences when undergoing stoma and/or
valve
care in a public place. It is also consistent with her evidence that she takes longer than other people to eat a meal, which in turn is consistent with the agreed SLT evidence that she has mild dysphagia. It is also consistent with a loss of confidence generally, which in turn is consistent with Professor Homer's evidence that having a laryngectomy is a life-changing event that has a significant effect on image and self-confidence. In my judgement her description of becoming withdrawn and preferring friends and family to come to her has to be compared to her pre-laryngectomy lifestyle and when that is done, it is not inconsistent with the Facebook posts.
verbal
communication skills are now poor. If she does speak to somebody and they do not understand her properly, they often ignore her and speak to her carers instead, thinking that she must be deaf. She feels angry and humiliated when this happens. This evidence was not disputed and, having spent several days listening to her give evidence, there can be no dispute that although she is able to speak using a
voice
valve,
she does not have anything approaching a normal
voice
and her communication skills are now significantly impaired. I accept that this limits her ability and willingness to socialise.
viewing
the evidence in the round, I reject the suggestion that the Claimant has dishonestly misrepresented the extent to which she has suffered a loss of social life.
Caring for her grandchildren
Cullen,
the Claimant's son and the father of the Claimant's grandchildren, gave evidence that the Claimant loved to see her grandchildren and so sometimes when he was going to look after his mother, he would take his children with him. He and his children would be there together and they would all stay overnight. His evidence was not challenged.
Travelling abroad
visit
her family and I accept that distinction, which reduces the number to 14 over a period of 6 years. That equates to just over 2 holidays per year.
very
social outward looking person and the effect of laryngectomy and limitation that it imposes, particularly on
voicing,
had significantly affected this. She describes periods of low mood and difficulties in adjusting to her circumstances". It seems to me that this is entirely consistent with her witness statement taken as a whole, in which she describes a pre-laryngectomy lifestyle that was active and highly social and included many activities that she can no longer do. Professor Homer highlights that the limitation is 'particularly on
voicing'.
This is not controversial. Quite apart from the social difficulties associated with having to speak through a
voice
valve,
there are specific activities such as a love of singing, karaoke and performing her own poetry at open mic sessions that she can no longer do. These are all things that significantly and adversely affect her quality of life and her ability to socialise. None of this prevents her from, or is inconsistent with, taking holidays.
Cooking and eating spicy food
Cullen
is consistent with the Claimant's evidence. In her witness statement dated 22 July 2022, Anna Crowley said that the Claimant could not use certain ingredients because they affect her stoma and make her cough and that whereas the Claimant was previously an avid cook and used to enjoy hosting dinner parties, she no longer does so. At the time of Helen Howison's assessment in August 2022, Dayne
Cullen
described the daily routine in which he said that the Claimant "can't cook over steaming pans or tolerate spices being fried as irritates her airway causing her to cough".
very
little cooking and cannot make Indian food as the spices are an irritant. She reported that Anna is a good cook and makes food. When she spoke to Dr Carstairs in December 2022, she said that she cannot cook with strong spices and this is a real loss because she used to enjoy cooking Indian food but now the chilli irritates her throat and makes her cough so she cannot do it. She used to love to have people round for dinner and to cook an Indian meal from scratch but she cannot now do this. When she spoke to Ms Heathcote in March 2023, she said that cooking fumes triggered coughing episodes and Ms Heathcote observed that "it is common for laryngectomy patients to cough due to exposure to irritants such as cooking fumes."
very
strong spices, but she can eat things that are not
very
hot, herbs more than spices. She said that she can tolerate cumin, which she loves and it goes in most of the things that she cooks.
very
strong spices from scratch.
very
significantly curtailed and in particular she avoids things like strong spices that will irritate her airway and cause her to cough, which is unpleasant in itself but when it occurs
violently,
it risks dislodging her
voice
valve.
Her evidence in relation to this is consistent with the expert evidence that exposure to irritants such as cooking fumes will cause her to cough. It is also consistent with the evidence of Anna Crowley and the reported evidence of Dayne
Cullen,
both of whose evidence I have already considered in relation to other aspects of the case and whom I consider to be honest witnesses. I also bear in mind what I consider to be her honest evidence about other aspects of cooking and food, namely her evidence of her reduced sense of smell/taste and consequential loss of enjoyment of food and her evidence about not cooking for large groups. So far as the Facebook posts are concerned, I accept that some of them appear, on their face, to be inconsistent with the Claimant's evidence in relation to cooking with spices. However I also accept that her Facebook posts are not solemn declarations and in my
view
I should be
very
cautious about approaching them as such. It seems to me that for a person like the Claimant, whose Facebook posts are generally upbeat and positive and who was previously an accomplished cook, there is a strong temptation to continue to present such a picture on Facebook, even if the reality is less positive. I bear in mind my impression of her evidence when she was cross-examined about these posts. I found her to be a convincing witness. Having carefully weighed all these factors, to the extent that there is a discrepancy between the Claimant's Facebook posts and the Claimant's evidence given on oath at trial, I prefer and accept the latter.
Conclusions on the Defendant's allegations of fundamental dishonesty
QUANTIFICATION OF THE OUTSTANDING HEADS OF CLAIM
Quantification of the past and future care claims
value
future care on the basis that the court finds that the Claimant reasonably needs 24 hour care. This had been the basis for Mrs Howison's initial report. In the joint statement she reiterated her figure of £339,487pa for managed private agency care. She also provided an alternative cost for privately engaged care, which produced an annual figure of £238,909pa. Ms Palmer expressed the
view
that if this were the court's determination, then she considered that care could be provided through live-in care. She said that Bluebird Care had advised that costs would range between £78,000 and £98,800pa depending upon assessment. All that said, by the time of this joint statement the updated medical records had been received, in which the Claimant was described as a 'self-changer'. As a result of this development, in that joint statement, Mrs Howison substantially revised her opinion in relation to past and future care needs, effectively agreeing with much of Ms Palmer's original assessment. Consequent upon Mrs Howison's change of opinion, and changes in the opinions of other experts based on the SLT records, the Claimant amended her Schedule of Loss, bringing her past and future care claims into line with Mrs Howison's revised opinion and Ms Palmer's original assessment. She reduced her claim for past care to £63,750 and her future care claim to £159,939 (as per the Defendant's Counter-Schedule).
visiting
agency care would be the provision of a live-in carer, provided by an agency at an annual cost of between £88,638 and £94,040. This cost reflected London weighting and the fact that most agencies will apply an uplift when clinical care is required. Consequent upon Mrs Howison's further change of opinion, the Claimant re-amended her Schedule of Loss, reinstating her future care claim, albeit based on the cost of a live-in carer rather than
visiting
agency care.
views
of others experts, which reinforced her own. She was also provided with the Facebook posts and the surveillance footage. Her
views
became further entrenched. She withdrew her recommendation of a period of rehabilitation.
Cullen
had provided. She provided figures for alternative models of future care, but she reaffirmed her
view
that 24 hour live-in care, with the carer resting at night but available to respond to urgent need, remained her preferred option.
visiting
commercial care. She said that for her case management figures, not being a case manager herself, she had relied on a case management company.
views
of those experts who were agreed that the Claimant needed 24 hour care. Her answer was that firstly she had mentioned Ms Heathcote's contrary
view
and secondly she was of the
view
that what was needed was a period of intensive rehabilitation, neither of which seemed to explain the omission in the reports. In any event, she stuck to her opinion that rehabilitation was what was needed. When asked about emergencies, she said there are options like Telecare where the Claimant would wear something round her wrist or neck and press a button if she really could not manage her situation at any time. She said that Telecare have a response time of about 20 minutes and if they felt an ambulance was needed, they would call one. This suggestion was not in her report and had not been put to any of the ENT or SLT experts. I did not find these aspects of her evidence to be persuasive. She was asked about some of her comments on the evidence and on inconsistencies. Again I did not find these to be particularly helpful, and as she had to concede, they are ultimately matters for me.
very
good, they establish good working relationships with the individual and with their family and friends and it is a good package of care.
value
of the claim has fluctuated during the course of the litigation. The Defendant criticises the Claimant for this. However, as I have found, the Claimant's evidence has not changed. I have found that she has given a consistent and honest account of the effect of her injuries upon her. What has changed during the course of the litigation has been Mrs Howison's opinion. At each stage, the Claimant has adopted Mrs Howison's opinion, even when it was plainly to her disadvantage to do so. It seems to me that whilst the fluctuating
valuations
expose Mrs Howison's lack of practical experience in setting up care packages in the community, and undermine the authority of her final opinion, they do not indicate that the Claimant has been dishonest.
Past care
Cullen,
it was being provided by those friends and off-duty carers who accompanied the Claimant on those holidays and on whose behalf the Claimant is entitled to make a claim. However I do reduce the care figure by the amount of carer's allowance received in this period, which at £67.60/week for approximately 3 years reduces the figure to c£116,000. Even making all these allowances, the figure is still
very
substantially in excess of what is claimed. That being so, and the Claimant having expressly chosen to maintain her figure of £63,750 in the knowledge that it is likely to be an underestimate, I make the award in full. I therefore assess past gratuitous care at £63,750.
Interest
Future care, case management and carers' holiday costs
view,
this consensus was justified. This option satisfies the Claimant's wish to relinquish responsibility for recruitment and management of carers and hands that over to an agency. It satisfies her wish that there be continuity of care and that she will always have someone to assist her. The model involves 2, maybe 3, regular carers living-in, in rotation, but with the resources of the agency to fill gaps in care should they arise. It provides the opportunity for the Claimant to be involved in the selection of carers, for her to have regular carers who know her and her care needs well and it allows her to develop the sort of close personal connection to her carers that she has greatly
valued
in her current arrangements. It seems to me that one of the great strengths of this model is that it is relatively simple in its structure and in its delivery, which would tend to increase its reliability, and it is underpinned by the resources of the agency and is not therefore dependent on a single individual such as a case manager. The mid-point model suffers from the reverse, namely it is a significantly more complicated arrangement, involving a team of carers with much less personal loyalty to the Claimant, and with a correspondingly increased risk of gaps appearing and continuity of care being lost. It would cost
very
significantly more and I consider that it would deliver a less secure result.
i) The first was the availability of live-in carers. She had spoken to an independent care consultant and telephoned two agencies, Helping Hands and Home Instead, who had been unable to provide live-in care. It seems to me that this was a fairly cursory survey of the market. In fact, as Ms Palmer explained and I accept, Helping Hands is not a nursing agency and no longer provides a respiratory service, so they would not have been able to provide a live-in carer in any event. The evidence did not reveal whether Home Instead was a nursing agency or not. More significantly, Ms Palmer was able to source a live-in carer simply by telephoning Prestige, the
very
agency that Mrs Howison had used when preparing her original report but which she did not contact when reconsidering her recommendations for the joint statement. Ms Palmer, who has a great deal of experience of setting up live-in carer arrangements, said, and I accept, that there are other reputable providers in the market. She did not envisage any difficulty finding a reputable provider of live-in care. In short, I prefer and accept Ms Palmer's evidence as to the availability of the live-in option.
ii) The second reason Mrs Howison gave for abandoning the live-in option was based on what she considered to be the necessary skill level of the Claimant's carers. I remind myself that the
vast
majority of laryngectomy patients who need on-going care receive it quite satisfactorily from their partner or another family member, i.e. from someone who has become their carer by chance rather than because they were already a specialist carer. I further remind myself that most of the Claimant's current carers did not start out as specialist carers, have had no formal training (they have been shown/told what is needed by Dayne
Cullen,
Anna Crowley and the Claimant herself) and only Dayne
Cullen
and Anna Crowley have received any sort of training from the Claimant's SLTs. Despite this, they have successfully learnt how to care for the Claimant and they have successfully provided her with the care that she needs. Lastly I remind myself of Anna Crowley's evidence that what are required are "confidence, a steady hand, good eyesight and a reliable torch". In my
view
there is no reason to suppose that individuals who already work as full-time carers would not be able to acquire such further skills as are required to look after the Claimant, particularly in circumstances where they are supported by a nursing care agency as opposed to a general care agency, and particularly where there is specific provision within the award of damages for SLT training.
iii) Mrs Howison's third reason was that she thought that the Claimant did not want someone living in her home 24/7. In fact there was no evidence to this effect, as Mrs Howison had to concede. On the contrary, live-in care was the case that the Claimant was specifically advancing from 29 February 2024, the date of her Re-Amended Schedule of Loss, until 27 June 2024, the date of her Re-Re-Amended Schedule of Loss. It was the case that she was advancing when she gave evidence at trial and there was no indication in her evidence that she was not content with such a proposal. The final amendment came about as a result of Mrs Howison's change of opinion, not as a result of any further evidence from the Claimant. I observe that whilst I am sure the Claimant would prefer not to be dependent on care and to live independently, the reality of 24 hour care is that she has been, and will be in future, sharing her home 24/7 with her carer.
view
of my conclusion on future care, the claim for case management costs falls away.
Quantification of future psychological treatment costs
very
significant impact upon the Claimant and require more sessions that that recommended by Dr McGillion. Again I adopt a figure at the lower end of Dr Carstairs' range as reasonable, to which I apply a modest discount to reflect accelerated receipt. This produces a figure of £125 x 20 x 0.9 = £2,250. This produces an overall award of £6,000. I then stand back and consider whether this broadly accords with what I would have awarded on a more broad-brush lump sum basis and I am satisfied that it does. In all the circumstances, therefore, I award £6,000 for future psychological therapy.
Quantification of future equipment costs
view,
an iPad, or at least a tablet, is a commonplace item which the Claimant is likely to have purchased for herself in any event. On that ground, I would disallow the claim for an iPad. However I am satisfied that text-to-speech software is not something that the Claimant would have purchased for herself in any event and therefore, in respect of that part of the claim, the only remaining question is whether she will use it. It is anticipated that her
voice
will deteriorate in future and, as that happens, the motivation to find and use other methods of communication will increase. I am satisfied that there will come a time when she will use such software. I therefore allow the claim for the cost of the software in the sum of £159.99, discounted by 10% for accelerated receipt, producing a figure of £144 to be added to the agreed figure of £30,543.58, making a total of £30,687.58.
viscous
secretions and a greater need to cough. On the other hand, absent her laryngectomy she would still have suffered from COPD causing her to cough and her cough would have been much stronger than it is now, because she would have been able to cough against resistance. Absent further expert evidence on these issues, I am unable to take this analysis any further and I cannot say, on the balance of probabilities, that her stress incontinence has been caused by her laryngectomy or that she would not have suffered from it in any event. I therefore disallow this head of claim. The second item of physiotherapy equipment is a claim for TheraBands in the sum of £25 to enable her to exercise her right shoulder, which is severely dysfunctional as a result of the right accessory nerve palsy. This item is agreed.
Double recovery
very
shortly before the date for oral submissions and as a result, the Claimant was not in a position to respond on 19 July 2024 beyond acknowledging that double recovery should be avoided. Mr Hough expressed the
view that the approach that the parties take may depend to some extent on my judgment, but that the parties would be able to agree a form of words for inclusion in the final order. That was how matters were left. I therefore invite the parties to draw up a final order that reflects my judgment and incorporates a reasonable safeguard against double recovery.
Note 1 Weber RS, Berkey BA, Forastiere A, Cooper J, Maor M, Goepfert H, et al. Outcome of salvage total laryngectomy following organ preservation therapy: the Radiation Therapy Oncology Group trial 91-11. Arch Otolaryngol Head Neck Surg. 2003;129(1):44-9 [Back] Note 2 Anschuetz L, Shelan M, Dematté M, Schubert AD, Giger R, Elicin O. Long-term functional outcome after laryngeal cancer treatment. Radiat Oncol. 2019;14(1):101 [Back]