Aaron Haley v Newcold Ltd [2025] EWCC 57

[2025] EWCC 57Case No J09YJ682
IN THE COUNTY COURT AT WAKEFIELD
Venue Sitting at Leeds Combined Court, The Combined Court Centre, Oxford Row, LeedsDate Date: 16 th October 2025
Before
HIS HONOUR JUDGE D. WALSH
Between
AARON HALEYClaimantNEWCOLD LIMITEDDefendant
Robert Smith (instructed by Brearleys Solicitors) for ClaimantDominic Nolan KC (instructed by Kennedys Law LLP) for DefendantHearing Hearing dates: 17 th, 18 th& 21 st July 2025
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................His Honour Judge Walsh:Introduction
[1]This matter arises out of a claim by the Claimant, Aaron Haley, against the Defendant, Newcold Ltd, his former employers, for damages for personal injury and other consequential loss suffered as a result of an accident at work that took place on 19th March 2019.[2]The facts of the accident itself are not particularly material for the purposes of this Judgment. It will suffice to say that following being struck by a forklift truck, the Claimant suffered a serious crush injury to his right foot causing significant degloving and a burst fracture to the calcaneus.[3]Liability for the cause of the accident has been compromised between the parties with the Claimant accepting a 20% reduction in his damages to reflect negligence on his own part.[4]On 13th March 2024, a near 5 years after the accident, the Claimant underwent a below knee amputation of his injured leg. The Claimant alleges that the amputation was caused by the accident. The Defendant denies the same.[5]By Order of the Court, dated 18th September 2024, Deputy District Judge Furness ordered a trial of a preliminary issue. The issue to be determined was set out in these terms:
‘Was the elective below knee amputation of the Claimant’s right leg in March 2024 caused by the accident the subject of this claim in March 2019?’
[6]The trial took place before me over 3 days. I heard oral evidence from the Claimant and his mother and stepfather, Joanne and Peter Harrison, the Claimant’s aunt, Sarah Auty, and from Michael Gibbons the proprietor of an ‘Airsoft’ venue in Dewsbury.[7]All the Defendant’s lay witness evidence, which included evidence from covert surveillance operatives was agreed and, accordingly, the witnesses were not called to provide oral testimony.[8]Professor Harris provided expert evidence on behalf of the Claimant, and Mr Simmons on behalf of the Defendant. Both are Consultant Orthopaedic Surgeons. Both prepared reports in advance and a joint statement and gave oral evidence at trial.[9]I also had the benefit of written reports and a joint statement from Dr. Cooling and Dr. Latcham, both Consultant Psychiatrists with regard to causation of psychiatric injury. Given the level of agreement between them, neither expert was called to provide oral evidence at trial.[10]Both Counsels’ written arguments and written submissions, the final of which were filed on 14th August 2025, were exceptionally well structured and impressive, and were of great assistance. I am indebted to both Counsel for the skilful way in which they have conducted this trial. Material Background Post Accident/Outline of Respective Positions[11]Following the accident, the Claimant underwent initial debridement of his injured foot. A couple of days later he had surgery consisting of a gracilis free flap from his left thigh to his right foot together with a split skin graft.[12]The Claimant was discharged around 10 days later and immobilised in plaster for 3 weeks in full equinus position and 3 further weeks in semi-equinus position. Thereafter, his foot was placed in a walker boot.[13]It is common ground that, in the initial stages, the expectation for the healing of the Claimant’s injury was optimistic. The surgeons who treated the initial injury provided a probable recovery period of 9 to 12 months.[14]During that expected recovery period, in February 2020, the Claimant was discharged from physiotherapy. At this point, Professor Harris opined that the Claimant’s progress was ‘typical’ for this particular type of injury. Mr Simmons went further opining that the progress was ‘excellent’.[15]In complex injuries such as that suffered by the Claimant, it is agreed that there remained a risk of a below knee amputation. In his written evidence, Professor Harris estimated that risk at 10% and Mr Simmons at 5%. On any view, therefore, while a risk remained, it was of low order.[16]It is the Claimant’s case that, in short, as time moved on, that low risk materialised. He asserts that the extent and frequency of pain, which at times, had become ‘unbearable’, along with restriction of movement or lack of function, and consequent restrictions in his social and work life, rendered the amputation necessary.[17]In accordance with the Court timetable, on 29th February 2024, a little under 2 weeks before the date set for amputation, the Defendant served the Claimant with Mr Simmons’ medical report and covert video surveillance (‘the surveillance’) taken of the Claimant over an extended period of time.[18]For reasons that are not material, the Claimant’s solicitor was unable to access the said disclosure on the link provided and a further link was sent on Friday 1st March 2024 which was successfully accessed by the Claimant’s Solicitor on Monday 4th March.[19]Having served the said evidence, the Defendant requested that the disclosure be shown to the Claimant’s treating consultants and that the amputation be delayed. The Claimant refused both requests and the amputation proceeded as planned on 13th March.[20]It is the Defendant’s position that the totality of the evidence demonstrates that the Claimant’s condition did not justify his decision to amputate, and that, in essence, there is no causative link between the accident and the amputation. Legal Principles (all emphasis below in bold and underlined is mine)[21]Unfortunately, despite the wording of the preliminary issue, the parties do not agree quite what question it is that the Court is being asked to answer, or what legal principles should be applied to the same.[22]I make it clear that I do not criticise either Counsel for this dispute. It is plain that both Counsel see the matter differently, but that difference has led to a plethora of lengthy submissions and reliance on authority.[28]Mr Smith submits that there can be no sensible dispute that ‘but for’ the accident, the Claimant would not have undergone the amputation. Therefore, to succeed on the preliminary issue, the Defendant must establish that the Claimant’s decision to undergo amputation amounted to a novus actus interveniens.[29]Mr Nolan rejects that contention and submits that whether there is a novus actus is not the issue here. He suggests that while such an issue may arise at a later date, dependent upon the Court’s findings on the preliminary issue, it is not a question to be determined now, which is solely an issue of fact.[30]For a chain of causation to be broken, of course, it must exist in the first place. Mr Nolan submits, therefore, that to succeed on the preliminary issue, the Claimant must establish a causative link between the injury and the amputation.[31]Mr Nolan developed his argument this way, ‘…the claimant approaches in the wrong way, seeing it as a question of mitigation/novus actus interveniens rather than the basic factual question of whether the pre-amputation level of pain and disability now asserted by the claimant were as he claims…’[32]Mr Nolan continues that the Claimant must prove that the continuing symptoms and disability attributable to the accident were sufficient to make the amputation a ‘reasonable option’.[33]In reply, Mr Smith submits that the question is not whether the Claimant’s decision to undergo amputation was reasonable as of 13th March 2024, nor as a starting point, whether the Claimant can prove that the amputation was due to pain and disability arising from the accident.[34]The correct analysis is this – it is plain that ‘but for’ the Defendant’s admitted negligence the Claimant would not have been struck by the forklift truck. Accordingly, ‘but for’ the same, the forklift would not have run over his right foot causing a significant crush injury, a low risk of amputation, and consequent psychiatric injury.[35]It is equally clear that, considering the position at the date of the accident when the injury occurred, on the agreed expert evidence, amputation was a reasonably foreseeable consequence of the negligent act.[36]Therefore, taking ‘but for’ causation as the starting point, the Defendant’s negligence is a cause of the amputation, but not necessarily the effective cause. Clerk andLindsellon Torts (24th Ed.) at [2-09] provides:
‘The fact that the Defendant's conduct is found to be a cause, applying the “but for” test, is not conclusive as to whether he should be held responsible in law since thefunction of the causal enquiry in law is to determine which causes have significancefor the purpose of attributing legal responsibility. It is sometimes said that the law seeks the causa causans (effective factor) rather than the causa sine qua non (factors without which damage could not have occurred).’
[37]At [2-125] Clerk and Lindsell also provides:
‘When the conduct of the Claimant exacerbates or adds to the injuries of which he complains that conduct will generally result in a reduction in his damages on the grounds of contributory negligence or failure in his duty to mitigate damage. However, it may be that the conduct of the Claimant is so wholly unreasonable and/or of such overwhelming impact, that the conduct eclipses the Defendant's wrongdoing and constitutes a novus actus. His own conduct is found to be the effective cause of his injury.’
[38]The question, therefore, is whether the Claimant’s deliberate act of undergoing amputation, an act that while causally connected on a simple ‘but for’ basis to the Defendant’s negligence, in fact, broke the chain of causation.[39]Such a question is entirely consistent with that set out by the Order of the Court, dated 18th September 2024, where the learned Deputy District Judge directed a trial of the preliminary issue. The question, as noted above, (but worth repeating here), is simply:
‘Was the elective below knee amputation of the Claimant’s right leg in March 2024 causedby the accident the subject of this claim in March 2019?’
[40]Such an approach is also consistent with the principles enunciated in Corr v IBCVehicles Ltd [2008] 1 A.C. 884 per Lord Scott of Foscote at [27]:
‘But the developing case law has placed limits on the extent of the “but for” consequences of actionable negligence for which the negligent actor can be held liable. This case engages and questions the extent of those limits. As it is put in Clerk & Lindsell on Torts , 19th ed (2006), para 2–78: “Where the defendant's conduct forms part of a sequence of events leading to harm to the claimant, and the act of another person, without which the damage would not have occurred, intervenes between the defendant's wrongful conduct and the damage, the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens i.e. whether it can be regarded as breaking the causal connection between the wrong and the damage.” After noting that a novus actus may take the form of conduct by the claimant…, the text says: “Whatever its form the novus actus must constitute an eventof such impact that it ‘obliterates’ the wrongdoing of the defendant”.’
[41]What degree of unreasonable conduct on the part of the Claimant would break the otherwise unavoidable chain of future outcomes following the Defendant’s negligence is a test of fairness - Corr v IBC Vehicles Ltd per Lord Bingham of Cornhill at [15]:
‘It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible.’
[42]This test of fairness was reiterated in Spencer v Wincanton Holdings Ltd [2009], EWCA Civ 1404 (upon which Mr Smith relies, and in which Mr Nolan appeared). Referencing the speech of Lord Bingham in Corr v IBC Vehicles Ltd at [15], Sedley LJ reiterated at [14] that: ‘the rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness’.[43]Expanding on the concept of ‘fairness’, Sedley LJ further held at [15]:
‘Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.’
[44]In the same case, Spencer v Wincanton, Aikens LJ put the test this way at [38]:
‘The question is, always having established the facts, what is the extent of the loss for which a defendant ought fairly or reasonably or justly be held liable?’
[45]In short, therefore, the point at which ‘fairness’ dictates that the defendant’s liability should cease, is when the subsequent event is not caused by the defendant’s negligence but by a supervening event or the claimant’s own conduct.[46]To put it slightly differently, fairness demands that the defendant’s liability must end where the negligence was merely the occasion, rather than the effective cause of the harm.[47]I therefore agree with Mr Smith that the Defendant is liable for losses arising out of the injury caused in the accident unless there is a novus actus, which the Defendant must establish.[48]Mr Smith is also correct, therefore, that the question to be determined is not a pure factual decision - Roberts v Bettany [2001] EWCA Civ 109 at [12]. The matters and questions raised by Mr Nolan above, therefore, are relevant, but only to establishing a novus actus.[49]As noted, determining whether there has been a novus actus requires a determination as to whether, on the evidence, the effective cause of the amputation was the original negligence, or whether that cause has been eclipsed by another cause so that it is not the effective cause in law.[50]To answer that question requires a consideration of the totality of the evidence including, but not limited to, as Mr Nolan put it, whether the Claimant’s pre-amputation level of pain and disability was as he now asserts, and whether the decision to undergo the amputation was reasonable.[51]While Mr Nolan now argues the position as to the law somewhat differently, the conclusion I have reached is not too dissimilar from the position he adopted at paragraph 8 of his Skeleton Argument for trial: ‘there is no causative chain between the accident and the amputation – it was simply the claimant’s own decision reflecting his own wish. Looked at another way – the claimant’s decision, for his own reasons, to seek amputation broke the chain of causation’.[52]In support of his position, Mr Smith also relies upon Clerk and Lindsell at [2-118] which provides:
‘If intervening conduct is foreseeable, it is less likely to constitute a novus actus than unforeseeable conduct. The more likely the intervention is the less likely it is to break the chain of causation.’
[53]I accept that as a correct statement of the law. As noted, the likelihood of the amputation was low, but nevertheless foreseeable. The experts’ opinion, (which I will return to in more detail below) in the Joint Report was that the risk of amputation was between 510%.[54]The Defendant’s position, however, in essence, is that while a clinically justified or necessary amputation was foreseeable, an unjustified, clinically unnecessary one was not.[55]As will become apparent, that is not to say that there is any clinical negligence being alleged. Simply that on the evidence, the Claimant did not need an amputation as a result of the accident.[56]Mr Smith submits that a finding of a novus actus for non-negligent medical treatment constitutes an unlawful interference with the Claimant’s right for private life as guaranteed under Article 8(1) ECHR 1998.[57]Mr Smith further submits that a finding of a novus actus for non-negligent medical treatment ‘would representa considerable development in the law’. I reject both of those submissions. A simple example will demonstrate why the premise of such arguments are flawed.[58]Take a similar case where a claimant suffers a moderate injury to a limb as a result of the defendant’s negligence. Assume, if you will, that there was absolutely no objective way of knowing whether the claimant was suffering pain to the extent alleged. No scan, surveillance, or other inquiry can assist.[59]The treating surgeon cannot find an organic cause for the suggested level of pain which the claimant insists is unbearable. Furthermore, there is no evidence of any psychological/psychiatric overlay, and in those circumstances, the treating surgeon has nothing but the claimant’s subjective account as to his level of pain.[60]In addition, there is no evidence to suggest that the surgeon should reject the claimant’s account of his pain. Therefore, given the claimant’s subjective description of continuing unbearable pain, the limb is amputated.[61]Later, however, evidence emerges post amputation that the claimant has been recorded admitting to a friend that he lied entirely about his level of pain, that the pain was negligible, and that he knew he did not need the amputation.[62]On those facts, there could be no suggestion that the surgeon was negligent. Moreover, it is clear that the effective cause of the amputation was not the defendant’s negligence, but the claimant’s conduct.[63]According to Mr Smith’s submission, however, a conclusion of novus actus would constitute an unlawful interference with the Claimant’s right to private life as guaranteed under Article 8(1), and /orrepresent a considerable development in the law.[64]If Mr Smith is correct, therefore, the defendant, even in those circumstances, would remain legally responsible for the consequences of the non-negligent amputation irrespective of the claimant’s deceit.[65]Despite the skill with which Mr Smith has developed the submission, it is not one I can accept, and I am quite satisfied that that could never be an accurate reflection of the law.[66]On those facts, I am quite satisfied that, despite the absence of negligent medical treatment, the amputation would be held not to have been caused by the defendant’s negligence but by the claimant’s own conduct, and the defendant’s liability would cease.[67]To put it slightly differently, on those facts, the defendant’s negligence would be held not to be the effective cause of the amputation, but the claimant’s own conduct as the effective cause eclipsing the defendant’s wrongdoing constituting a novus actus for which it would not be fair to hold the defendant liable.[68]Such a finding would in no way violate the claimant’s autonomy over his own medical treatment. A claimant is free to act as he wishes, and neither the court nor the defendant has a right to hinder that freedom.[69]That does not mean, however, that a defendant will retain a legal liability for that freedom of choice. In other words, a claimant is free to act as he chose to, but not necessarily to the detriment and cost of the defendant.[70]In support of his argument that absent clinical negligence, the Court should consider it ‘intolerable’ to entertain the Defendant’s argument and seek to scrutinise the Claimant’s decision to undergo amputation, Mr Smith relies upon Emeh v KensingtonA.H.A (C.A) [1985] 1 Q.B. 1012 at 1027D and E per Purchas LJ:
‘For my part, however, I would respectfully agree with what has fallen from Slade L.J. that it would be intolerable if a defendant, admittedly by his own admission standing charged with negligence of a professional character and having, through that negligence, placed the plaintiff in a position in which a choice or decision had to bemade, was able closely to analyse that decision so as to show that it might not have been the right choice and thereby escape his liability. I find it unacceptable that the court should be invited to consider critically in the context of a defence of novus actus interveniens the decision of a mother to terminate or not her pregnancy which has been caused by the defendants’ negligence.’
[71]It is important to remember that the Defendant’s case here is that the evidence establishes that the Claimant was not placed in a position by its negligence in which a ‘choice or decision had to be made’. In short, it asserts in that context that the Claimant’s decision was voluntary not involuntary.[72]Whether the Defendant is correct as to the same falls to be considered on the evidence below. If the Defendant is correct, Emeh v Kensington A.H.A (C.A) would fall to be distinguished on the facts which would be materially different.[73]In any event, I reject Mr Smith’s submission that the Court should find that the treatment which the Claimant underwent was non-negligent. In the absence of evidence either way, the Court is in no position to determine whether such treatment was negligent or not.[74]To be clear, I accept as a starting point, Mr Smith’s submission that there must not be an enquiry at trial, for the first time, as to the ‘standard of treatment provided’. That submission is plainly correct.[75]The Court cannot, however, make the leap Mr Smith then contends for, in essence, that if there is to be no enquiry, that must lead to the conclusion that the Claimant’s treatment at the hands of his treating clinicians was non-negligent. Such a process of elimination is not the correct approach.[76]This is even more so when there is no witness evidence from the treating clinicians, and it is common ground that the Claimant did not provide the treating surgeons with all relevant material. As Mr Nolan submitted, the treating surgeons cannot be blamed if they were not provided with the ‘full picture’.[77]It is agreed that the Claimant made no mention to the treating surgeons of his participation in Airsoft, including his involvement in the same within a couple of weeks of amputation, which both Professor Harris and Mr Simmons opine is an ‘unusual hobby’ for someone considering amputation.[78]In addition, it is common ground that the treating surgeons were not provided with the surveillance evidence or Mr Simmons’ medical report. What they would have made of this evidence, and whether they would have proceeded with the amputation in light of the same is simply not known and is not open to speculation or a specific finding of fact. Lay Evidence – Impressions Claimant[79]On a clinical presentation in the witness box, the Claimant appeared a straightforward witness. I consider, however, that I should approach his evidence with a degree of caution. I say so for several substantive reasons.[80]First, in July 2022, the Claimant commenced employment with Morrisons Supermarket. In his 6th witness statement, after setting out in detail the physical difficulties he encountered during his role on the hot food counter, he explained that he was concerned that he may lose his job due to his ‘irritability’, ‘lack of patience’ and being ‘short tempered’ since the accident.[81]The Claimant continued that since the accident he found it difficult to deal with people at work who are ‘not pleasant’ to him, and that he ‘can be respectful’, but only ‘if they deserve respect and certainly since the accident I have found this increasingly difficult’.[82]The Claimant stated that he lost his job at Morrisons in June 2023 and was ‘concerned that it would take him a long time to get another job’. In his 9th witness statement, he stated that:
‘In terms of work I had been working at Morrisons, but it didn’t work out. I believe that this was in a large part because I was in a lot of pain and was really difficult to deal with. It wasn’t entirely my fault because they did put me in a role that I couldn’t cope with (being on my feet all day lifting and carrying and also in and out of the freezers). That said, I know that I would have been able to hold that job down if it weren’t for the fact that I was constantly in pain and angry…’
The Claimant continued that:
‘My problems at Morrisons I believe were entirely due to me being difficult as a result of my being in constant pain.’
[83]I consider that a fair reading of those passages provide the clear implication that the loss of the Claimant’s job was due, at least in part, to the effect of the accident. They can be read in no other way.[84]Such an interpretation is also consistent with the written evidence of the Claimant’s mother, Mrs Harrison, when she stated that she believed that the Claimant lost his job, ‘because he was struggling with some of the physical aspects of the job this was used as a partial reason to let him go’.[85]The documentary evidence shows, however, that the Claimant was summarily dismissed from his employment due to matters, which need not be rehearsed here, but which were wholly unrelated to the accident.[86]Despite the same, the Claimant failed to mention in any of his 5 witness statements drafted after he lost his employment that he was, in fact, dismissed due to matters wholly unrelated to the accident. Therefore, I am driven to the conclusion that the Claimant misled the Court.[87]Second, the Claimant was pressed by Mr Nolan as to why it was, on 5th January 2024, just over 2 months before the amputation, he was seen from the surveillance to be walking casually and normally with his hands in his pockets heading towards Leeds Police Station.[88]The Claimant asserted that his trousers were loose and that his hands were placed in his pockets to help hold his trousers up. This evidence did not sit well with the fact that the footage also evidenced the Claimant walking casually and normally with his hands out of his pockets.[89]For instance, on the walk from his vehicle to the station, the Claimant removed his mobile phone from his back trouser pocket and held the same with both hands. Further, on his exit from the station to his vehicle, the Claimant walked with both hands out of his pockets.[90]I therefore reject the Claimant’s explanation and take the view that this was a poor attempt to shift focus from the fact he could not adequately explain how, a mere 10 weeks before amputation, he was seen to be walking normally. I am satisfied, therefore, that the Claimant again misled the Court.[91]Third, the only day the Claimant was seen on the surveillance using a crutch was on 21st November 2023, the day he saw Mr Simmons, the Defendant’s expert, for the purpose of the medico-legal assessment in Manchester.[92]The Claimant asserted in his 8th witness statement that he intended to take the crutch with him to the assessment due to a number of factors including it being a ‘really long day’, not knowing ‘what type of surfaces he would be walking on’, or for ‘how long he would be on his feet’, and not knowing whether ‘there would be steps to negotiate’.[93]On 21st November 2023, however, the Claimant stated that he was already in a great deal of pain due to having ‘pushed it a bit’ at Airsoft, some 2 days before, and that he took the crutch as he ‘really needed it’. He stated that he would have preferred not to have left the house.[94]The Claimant also asserted that he informed Mr Simmons ‘on 3 occasions not to touch my foot’ at the medico-legal assessment, as it was ‘really painful’ and that he was having ‘a particularly bad day’.[95]According to the Claimant, Mr Simmons ignored that request and ‘twisted and yanked’ the foot, causing him ‘huge amounts of pain’ so much so, that he ‘couldn’t properly put his foot down on the floor’.[96]Mr Simmons report records that while he was able to ‘passively’ move the Claimant’s ‘ankle and foot to plantigrade’, the Claimant did not allow him to examine the ‘hindfoot, the subtalar joint and midfoot’.[97]During oral evidence, Mr Simmons reiterated that position when he stated that ‘the Claimant would not allow me to examine him’, and that his physical examination was ‘limited.’[98]As will be seen below, in the round, I found Mr Simmons an impressive expert witness, and I accept his account of what occurred during his examination. Therefore, I reject the Claimant’s account that Mr Simmons ‘twisted and yanked’ the foot. Again, I take the view that the Claimant misled the Court as to the same.[99]Moreover, the Claimant provided no credible explanation as to how it came to be that, despite still being in ‘quite a lot of pain’, which took a ‘few days to subside’ following the appointment with Mr Simmons, the very next day, he was filmed able to walk without a crutch at all.[100]Fourth, I reject the Claimant’s explanation as to why the Airsoft’s venue promotional video clip displayed a participant running as opposed to walking, something which the Claimant described as a ‘birthday treat gauntlet run’.[101]The owner of the venue, Mr Gibbons, in no way supported that interpretation of what was seen on the video, and I am satisfied, therefore, as Mr Nolan put it, that the same was, ‘an invention of the claimant’.[102]Fifth, it is quite clear that there are significant material discrepancies between the Claimant’s accounts with the relevant benefit agencies on 2nd October and 6th November 2019.[103]On 2nd October 2019 (IIDB), the Claimant was noted to make ‘good eye contact and good rapport’, was not anxious and that his mood was ‘normal’ and that he ‘smiled appropriately’.[104]The Claimant stated that he used, ‘1 crutch’, at this point for about ‘6-8 weeks’. He continued that he had intermittent pain in the heel and foot, along with pins and needles and takes analgesic and anti-inflammatory medication.[105]Further, the Claimant confirmed that he could walk using one crutch, and can ‘make some distance, probably 20 min at slow pace, till pain stops me’. He confirmed that he was ‘independent in showering and getting dressed’ and had driven once since the accident.[106]Further, the Claimant stated that he had had anxiety and depression which started at school, that he had not been diagnosed with PTSD, and confirmed that his anxiety and depression was ‘not worse since the accident’, and that he was trying to ‘deal with my anxiety and depression in my own way’ and was ‘having no anxiety issues or symptoms’.[107]In contrast, on 6th November 2019 (PIP), just over 1 month later, the Claimant asserted that he was in constant pain, could not stand up for very long, and that ‘after I have stood for a short time I have to rest’.[108]Furthermore, the Claimant stated that if he wants, ‘a shower I have to use a shower seat as it is too painful and not safe for me to shower stood up’ and that ‘when I am having a bad day with the pain I sometimes have to ask family for assistance getting in and out of the bath/shower seat. It takes 30 – 45 minutes daily to wash/shower’.[109]In addition, the Claimant stated that his, ‘anxiety and depression has got worse in the past few months’, and that if his ‘anxiety gets the better of me I can struggle to make myself go out especially if this is not a familiar place to me’.[110]At the time of the assessment on 2nd October 2019, the Claimant had as a fact been diagnosed with PTSD, yet at that assessment he informed the assessor that he had not suffered a PTSD disorder.[111]Doing the best he can on the Claimant’s behalf, Mr Smith submits that this is evidence that the Claimant was ‘understating’ the psychiatric position, and in short, this is to the Claimant’s credit.[112]I consider that what the above evidences, and in particular given the Claimant’s duty to provide an accurate account to the assessors, and the differences in these two accounts, is that the Claimant is an unreliable historian.[113]I accept Mr Nolan’s submission that the Defendant is not going behind the retrospective psychiatric opinion in drawing the Court’s attention to the clear discrepancies between these accounts.[114]Therefore, taken together, in light of all of the above, I did not find the Claimant a credible or reliable witness, and it is not possible to simply accept his subjective account as to the nature, extent of symptoms and disability, from his injury up until the time of the amputation.[115]Accordingly, I consider that the Court should look to other evidence to see to what extent it either corroborates or undermines what the Claimant says and throw all of the same into the balance.[116]I note, at this point, that Mr Nolan made a number of other criticisms as to the Claimant’s credibility. While I have considered the same, I have naturally only dealt with the concerns that I accept as well made out.[117]I specifically reject, however, Mr Nolan’s submission that there was a material change in the Claimant’s witness evidence after the Defendant served surveillance showing the Claimant involved in various aspects of physical activity.[118]I take the view that, having considered such evidence carefully, and in particular, the Claimant’s evidence as to pain, the same did not particularly take on a greater role than before the surveillance was served as suggested.[119]While reminding myself of the caution in approach to the Claimant’s evidence, it is convenient at this point to set out below his witness evidence as to the reasons for amputation. Reasons for Amputation[120]Having stated that his injury and foot had remained the same over the last couple of years, in his 6th witness statement, dated 21st June 2023, the Claimant asserted that he still suffered ‘pain a lot’, but that he could ‘be largely free of pain a couple of days a week, but for the rest of the week I have pain that is of differing severity’.[121]The Claimant continued that, on a pain scale, when it was ‘really bad’, he recorded the pain as 7/10. When the pain tended to be in the background he recorded it as 2 or 3/10 when he is ‘being careful’ and not doing ‘anything that I shouldn’t’.[122]At this point, the Claimant stated that, ‘pain is part of the problem that I am seeking to sort out when considering an amputation, but it is not the main reason. There is a lack of movement in the ankle joint which means that I can’t use the foot and leg properly’.[123]According to the Claimant’s statement, this lack of movement limited, inter alia, his ability use the foot and leg properly describing an ability to only walk on flat ground, an inability to walk on a sandy beach, and an inability to ‘do anything physical around the house’ or ‘lift and carry heavy things’.[124]In his 9th witness statement, dated 8th November 2024, when setting out his reasons for having undergone the amputation, the Claimant stated that he was ‘really struggling’, was in ‘constant pain’ that was affecting every aspect of his life, and that the ‘pain had become so permanent’ that he ‘really felt like I had no choice at all’ to undergo the amputation.[125]The Claimant also stated that, ‘Ever since I have had the accident and right up until the point of amputation I had been unable to plan anything. I had become used to the pain albeit it was constant. At times it was unbearable. At times it meant that I could not bear to walk.’[126]The Claimant continued that, ‘I have always however made it totally clear that there were times where I could walk and where I was not debilitated by the pain to such an extent that I couldn't do anything. The problem was that for most of the time I was in too much pain to be able to do much. The days when I could do things were quite few and far between.’ Joanne Harrison[127]Mrs Harrison was a slightly defensive witness, which I consider understandable given that the Claimant is her son, and on any view, he suffered a horrific injury at work. More problematic, however, was her tendency to speculate.[128]For example, as noted above, Mrs Harrison asserted that she believed, at least in part, that the Claimant lost his job at Morrisons as he was struggling with some of the physical aspects of the job.[129]During cross-examination, Mrs Harrison was forced to accept that she did not have a basis for stating the above beyond her own opinion, as the evidence demonstrated that the Claimant was dismissed for other unrelated reasons.[130]Mrs Harrison also stated, apparently seriously, that she thought that Morrisons could not cope with, ‘someone with a disability’. Again, she had to accept that that assertion was made without any foundation beyond her own opinion.[131]Mrs Harrison also asserted, in response to Mr Nolan’s assertion that the Claimant ‘kept going back to Airsoft didn’t he?’, that the Claimant, ‘didn’t go back that often, he would go back occasionally’. Airsoft is a physical combat simulation game where players are temporarily eliminated from the game when shot by pellets fired from replica firearms.[132]Mrs Harrison’s evidence was inconsistent with the Claimant’s own evidence that he kept playing Airsoft weekly right up to the time of amputation. Mrs Harrison was not present in Court when the Claimant gave such evidence.[133]Mrs Harrison, who was present at Mr Simmons’ examination, also asserted that the Claimant informed the expert not to twist the Claimant’s foot on examination, but that Mr Simmons, ‘ignored this request and twisted his foot anyway’.[134]On its face, this of course, is supportive of and consistent with the Claimant’s own account. As seen above, however, I have felt compelled to treat the Claimant’s evidence with some degree of caution.[135]Given Mrs Harrison’s tendency to speculate, which I consider is borne out of a natural desire to assist her son, I do not consider her to be a particularly reliable witness, or that her corroborative evidence to be sufficient when weighed against Mr Simmons’ expert evidence which, as will be seen below, I have found to be generally reliable. Peter Harrison[136]Mr Harrison was a fairly straightforward witness, but again, sought fit to speculate in his written evidence on matters that he had no direct knowledge about. For example, he stated in his witness statement that the Claimant was ‘helped a lot by painkillers which were prescribed by Dr Britto’.[137]Mr Harrison accepted during cross-examination that when he saw the Claimant take tablets on his return from an appointment with Dr. Britto, he assumed that they were painkillers and assumed that they came from a prescription from Dr. Britto. Sarah Auty[138]The evidence of Ms Auty was not particularly probative, and she also proved to be a witness prone to making assumptions. For example, she signed a witness statement, with the usual statement of truth, referring to the Claimant’s particular concern as to the scarring on his legs.[139]Ms Auty admitted during oral evidence, however, that she had not in fact ever seen the scars on the Claimant’s legs, and ‘assumed’ that he had stopped wearing shorts as a result of the scarring.[140]In any event, both Mr and Mrs Harrison, along with Ms Auty are to a great extent reliant upon the Claimant’s account of his levels of pain and function, and accordingly, given the observations above, only limited weight may be placed on their evidence. Michael Gibbons[141]I found Mr Gibbons’ evidence of limited assistance and troubling in parts. He is the owner of the Airsoft venue in Dewsbury. Mr Gibbons also sponsors the Claimant as a disabled darts professional. I will deal with the issue of Airsoft and darts and the Claimant’s participation in the same in more detail further below.[142]Mr Gibbons’ witness statement essentially sets out how Airsoft is played at the venue. The statement also asserts that, ‘As part of our signing process when anybody new comes we ask as to whether they have got anything physical wrong with them and Aaron did make us aware that he had injured his leg previously and that he would likely be slow. We don’t have written records of this signing process’.[143]As to the written records, that statement was misleading. Mr Gibbons accepted during oral evidence that he had never in fact been asked about such documentation, which he acknowledged may exist.[144]Mr Gibbons asserted that what he had been asked about, and what he intended to say, was that the Claimant did not make formal bookings each time he attended week to week.[145]Mr Gibbons’ statement also stated that, ‘We are very health and safety conscious. We have a maximum of 30 people at any one time. We have got marshals who patrol making sure that people are not acting dangerously. We have a rule that people must not run. They can walk fast but not run.’[146]What Mr Gibbons’ statement failed to say, however, but which he admitted during cross-examination, was that although there was a rule against running, the reality is that those who engage do in fact run from time to time. I consider that this evidence should have been made plain in Mr Gibbons’ witness statement. Expert Evidence[147]Both Counsel criticised the opinions of the other party’s expert evidence at some length, suggesting that the experts had, in essence, lost impartiality, and/or approached the questions asked through a prism of flawed methodology rendering their evidence less reliable. I consider that some, but not all, of the criticism as well made out. Professor Harris[148]Near the beginning of his oral evidence, Professor Harris changed his opinion that in complex injuries such as that suffered by the Claimant, the risk of him requiring a below knee amputation was not 10% as he originally opined, but 10-15%.[149]This change of evidence did not raise itself at any point prior to cross-examination and was unexpected. This is surprising given that, only just over 4 weeks earlier, Professor Harris signed the Joint Report expressing the opinion that the risk was 10%.[150]As if that was not unsatisfactory enough, during the further course of crossexamination, Professor Harris’ evidence changed again. He expressed the opinion that the risk was actually ‘higher’ than 15%.[151]In short, Professor Harris stated that he had had a chance conversation with someone in his department in a ‘coffee room’ recently which, in essence, informed this new revised opinion.[152]I consider that these changes in evidence were given without any real cogent reason for such change. They certainly were not based on the consideration of scientific literature or study.[153]Of course, I accept that a chance meeting over coffee may give an expert pause for thought, and might even cause an expert to revisit his opinion, perhaps to reconsider the literature originally relied upon in support of his opinion, and may ultimately lead to a change in opinion.[154]If that is the case, I would expect the expert, consistent with his duty, to notify the other expert and parties immediately and explain why the opinion has changed. None of this was done, and the revised opinion did not rear its head at any point until the midst of cross-examination. With respect to Professor Harris, therefore, I am afraid that I found this all rather extraordinary.[155]Furthermore, when pressed by Mr Nolan as to evidence that may suggest that the Claimant, in fact, had a greater level of function prior to the amputation, Professor Harris accepted that these were, ‘potential red flags’.[156]These red potential flags included such evidence as the Claimant’s refusal to even try a hot water bottle to relieve pain, and his participation in Airsoft, which Professor Harris accepted ‘didnot fit’.[157]In addition, it included the Claimant’s playing of darts which involved a significant amount of standing that would aggravate pain, which Professor Harris stated, ‘doesn’t quite fit’.[158]Despite the same, when put to him, this evidence did not seem to provide Professor Harris with any real pause for thought as to his opinion that the amputation was ‘reasonable’.[159]Professor Harris opined merely that these ‘red flags’ meant that there should be a discussion with the rehabilitation consultants. I found that evidence, with respect, less than convincing.[160]These ‘potential red flags’, which included the Claimant’s participation in Airsoft, which Professor Harris accepted was not, in essence, consistent with a condition justifying amputation, existed prior to amputation.[161]In addition, Professor Harris had not identified any orthopaedic reason for amputation beyond the Claimant’s subjective account of pain, and had already accepted that the covert surveillance was not consistent with the history provided to him by the Claimant on examination.[162]To add to this, unlike Mr Simmons who had the plain advantage of having examined the Claimant in the months prior to amputation, Professor Harris had not examined the Claimant since the end of 2021 over 2 years before the amputation.[163]Given that Professor Harris was of the opinion that these ‘red flags’ would require a ‘discussion’ and/or an ‘opinion’ from the rehabilitation consultants, which was not obtained, it is difficult to see how Professor Harris could maintain, without qualification, his opinion that the amputation was ‘reasonable’.[164]I would have expected, therefore, that the same would have to forced Professor Harris to seriously reconsider his own opinion as to whether the amputation was ‘reasonable’ even if he went on to affirm it.[165]Further, though Professor Harris did, on 3rd July 2024, make some brief observations following receipt of the Claimant’s witness statement, and surveillance footage between 12th August 2023 and 19th January 2024, Professor Harris also did not even attempt the same level of analysis of the surveillance as Mr Simmons did in the Joint Report.[166]This was somewhat of a surprise given the clear importance of the same in the context of this case and given that Professor Harris conceded that the surveillance was not consistent with the Claimant’s presentation to him on examination.[167]In the Joint Report, Mr Simmons went into some detail as to his opinion of what was seen in the surveillance. He included important details such the Claimant’s heel strike, lack of antalgic gait, ability to walk without crutches, walking at a normal pace and with normal stride, walking over uneven ground, and absence of pain and loss of function.[168]Given that Professor Harris accepted that the surveillance was not consistent with the history provided to him by the Claimant on examination, I would have expected him to have provided a far more detailed consideration than he did.[169]In particular, I would have expected Professor Harris to have set out in the Joint Report, his detailed observations as to the Claimant’s heel strike, gait, ability to walk without crutches, pace and stride and so forth.[170]Further, I found Professor Harris’ opinion, when considering what weight, if any, should be given to the Claimant’s own wish to undergo an amputation difficult to understand.[171]Professor Harris stated that the, ‘Claimant’s subjective own informed decision is the most important element of the multidisciplinary process’. I consider this opinion difficult to comprehend given that he had not even been able to identify the cause of the Claimant’s asserted level of pain, and the inconsistent presentation as noted.[172]Given that Professor Harris also accepted in evidence that muscle wasting can be seen with an unequal use of the limbs, it is of some surprise that he chose not to even measure the Claimant’s calves.[173]Moreover, despite the fact that, in November 2023, Mr Simmons measured the Claimant’s calves at 41cm equally, the same did not seem to trouble Professor Harris in the slightest.[174]At times, therefore, I consider that, using the terminology adopted by Mr Nolan, Professor Harris did indeed demonstrate a rather ‘loose approach’ to his expert evidence.[175]I also consider that for the reasons given, he also demonstrated a closed mindedness towards his evidence and seemed somewhat determined to hold on to his opinion that the amputation was ‘reasonable’.[176]None of this, however, strikes me as the evidence of an expert witness who was ostensibly partisan, playing advocate, or to put it bluntly, ignoring his duty to the Court, and simply batting for the Claimant.[177]As noted, Professor Harris conceded that the surveillance was not consistent with the Claimant’s presentation to him on examination in December 2021, and opined that the participation in Airsoft was an unusual hobby for someone considering amputation. That evidence does not sit well with a suggestion of an expert witness who was ostensibly partisan or playing an advocate.[178]I consider that Professor Harris was rather simply an expert witness who was not particularly open to reconsidering his opinion (no doubt genuinely held) in light of other evidence. Mr Simmons[179]Mr Simmons is also not free from criticism. In the Joint Report, he opined that the proportion of people suffering an injury like the Claimant then requiring a below the knee amputation as 5%.[180]During cross-examination, however, when dealing with the risk of amputation, Mr Simmons initially stated that there was, ‘a 3 to 4% chance of immediateamputation with a small percentage in the long term’.[181]During re-examination, Mr Simmons explained that his opinion as to the risk of amputation came from a consideration of literature based on a small study, that was not based on 15 to 20 year longer outcomes.[182]Moreover, Mr Simmons explained that out of a group of 49 cases of similar injury, 3 led to amputation, 2 immediately for vascular injury where it was thought that the injury was ‘unreconstructable’, and 1 at a later date for reasons of pain or other problems.[183]Mr Simmons quite properly accepted that he did not, but should have, exhibited this literature and data to his evidence (the same criticism can be made of Professor Harris in this respect).[184]While I accept that Mr Simmons’ evidence of 3 to 4% was linked to chance of immediate amputation, none of his oral evidence matched his written evidence of 5%. Even taking 3/49 produces a little over 6% while the longer term risk of 1/49 is a little over 2%, and 2/49 for immediate risk produces just over 4%.[185]While, of course, these are small differences, Mr Simmons’ duty included an obligation to be as accurate as possible, and to produce the literature or reference the same to his evidence.[186]Further, during cross-examination, Mr Simmons was pressed as to his opinion in relation to photographs taken from the Claimant’s holiday in Florida in May 2022 when the Claimant was photographed sitting in a wheelchair and using a mobility scooter and crutch.[187]In relation to the same, Mr Simmons had opined in the Joint Report that the Claimant could be considered as having, ‘made an excellent recovery from the orthopaedic point of view … and participate in normal holiday activities …’.[188]In response to the question asked by Mr Smith as to the above, Mr Simmons drew upon reference to the totality of the evidence including the physiotherapy notes leading to discharge in February 2020 over 2 years before the Florida holiday.[189]The question being asked of Mr Simmons was directed to his opinion in the Joint Report about photographs taken in May 2022. At no point in that written opinion did he explain the same by way of reference to the physiotherapy records some 2 years earlier as he should have done.[190]While I did not find Mr Simmons’ evidence as noted above particularly impressive, overall, however, I found him a clear and persuasive witness whose evidence was logical and well-reasoned.[191]To that end, I reject the criticism of Mr Simmons’ use of the term ‘catastrophic deterioration’ and consider that he was justified in his use of the same given that he could identify no orthopaedic reason for amputation.[192]As Mr Nolan pointed out, Mr Simmons used this term in the context of a claimant discharged from physiotherapy 11 months post-accident who was noted at that point, inter alia, to be ‘mobile unaided, no limp’.[193]Mr Smith specifically criticises Mr Simmons’ use of the term ‘catastrophic deterioration’ in the Claimant’s condition post December 2021, which he submits is unsupported by the contemporaneous medical records.[194]Mr Smith also submits that the same conflicts with Mr Simmons’ opinion that that there had been an ‘excellent recovery’, as evidenced in the Claimant’s holiday photographs of May 2022.[195]Mr Smith questions, therefore, how can it possibly be suggested that there has been a ‘catastrophic rapid deterioration’ post December 2021, yet still an ‘excellent orthopaedic recovery’ evidenced within the photographs. With respect, this is to misunderstand Mr Simmons position.[196]In the Joint Report, Mr Simmons was asked at question 8, ‘Would you normally expect someone suffering an injury as the Claimant did to require a below-knee amputation?’ Mr Simmons replied:
‘While there are always risks of amputation with any complex injury, given the fact that the fracture had healed, the flap had matured with no post-operative complication and that he was young with no co-morbidities, his risks were low and thus I would not have expected an amputation in this case. Given his excellent report of recovery, I wouldnot have expected a rapid deterioration leading to amputation. This rapid deterioration appears inexplicable from the orthopaedic point of view.’
[197]There is nothing illogical in this response. It stands to reason that, while there was a low risk of amputation, if the Claimant had made an excellent recovery as Mr Simmons opines, a rapid deterioration leading to amputation would not be expected.[198]It is important to remember that it was not Mr Simmons’ evidence that there was a ‘rapid deterioration’. To the contrary, he remained of the view, in short, from an orthopaedic point of view, there was not a deterioration to justify the amputation.[199]As Mr Nolan submits, the essence of what Mr Simmons opined was that from an orthopaedic perspective he could not account for the ‘excellent recovery after 12 months’ being followed by a deterioration said to justify amputation.[200]That view of Mr Simmons’ evidence is supported by the fact he set out the factors that might lead to amputation, including infection, ulceration, or a completely dysfunctional limb, which it is common ground did not exist here.[201]Moreover, Mr Simmons pointed to the lack of objective signs of deterioration such as the MRI scan showing no significant arthropathy, the good condition of the foot and the heel pad, the lack of spreading in the heel, and the consequent ability to wear normal training shoes, and the level of function.[202]I further reject Mr Smith’s criticism of Mr Simmons for refusing to accept that the video clip of the Claimant at the Alligator Park in Florida in May 2022 evidences the Claimant limping.[203]For reasons that will become clear below, I accept Mr Simmons’ opinion that the Claimant was demonstrating a ‘waddle’ as Mr Simmons described it, as opposed to a limp. While Mr Smith is correct that the Claimant is demonstrating an abnormal gait, it is not a limp.[204]Mr Smith also sought to undermine Mr Simmons for stating, for the first time in oral evidence, that the Claimant’s use of a wheelchair/mobility scooter and ‘waddling’ may have had a psychological cause.[205]As Mr Nolan submitted, however, it is difficult to fairly criticise Mr Simmons when asked what explanation there could be for the Claimant’s behaviour other than orthopaedic deterioration, to then offer an opinion that some patients exhibit certain behaviour for psychological reasons. Such a fact is obvious and well known.[206]Mr Simmons did not, in any event, opine that this Claimant was expressing such behaviour but spoke of factors that are seen in other cases. He expressly made clear that he was not offering a psychological opinion.[207]I accept that Mr Simmons, at times, when looking at the photographic evidence when addressing the Claimant’s presentation at the airport on the way to Florida, confused the Claimant’s left and right side. I do not accept, as Mr Smith put it, that this was evidence of Mr Simmons ‘flip-flopping’. It was a genuine error that was corrected.[208]I also reject Mr Smith’s criticism of Mr Simmons’ evidence as to the footage on 12th August 2023 as again evidence of ‘flip-flopping’. In the Joint Report, Mr Simmons stated:
‘At around 1012 walking his dog. He appears to be avoiding heel strike. He does appear to be walking without sign of external distress. He is distractable using his phone. Walking at a reasonable pace but on occasion does appear to heel strike when walking a distance. Is also seen to be walking on uneven ground down a pathway and walks with a better heel strike. Does not appear to be an antalgic gait. Around 10:33 there was a more normal pattern and then back on pavement, lurching over and appears more pronounced.’
[209]That description is consistent with the covert surveillance, and Mr Simmons was consistent throughout his evidence that the Claimant’s gait as shown on the footage is not antalgic.[210]As Mr Nolan correctly points out, in short, where his evidence shows the Claimant to be doing different things at different times, this is not tantamount to ‘flip-flopping’, but an accurate depiction of what was seen.[211]I do accept Mr Smith’s submission that on the surveillance taken on 21st November 2023, Mr Simmons made no mention of the rigid left leg and bent right leg which the Claimant had which may support the contention that he required to take the weight off his heel.[212]Further it is correct that Mr Simmons made no reference, for example, to the Claimant walking up the stairs at the train station avoiding the use of his heel as he did so, or avoiding placing his heel to the ground when he was rising upon from the platform bench.[213]While I consider those criticisms fair, they do not undermine Mr Simmons’ evidence as a whole, or remedy Professor Harris’ failure to address the surveillance in any detail, or in the way noted above.[214]I also reject the submission that Mr Simmons was critical of the Claimant for not using his heel on the step, yet in other parts of the evidence he was critical of the Claimant for using his heel on the step.[215]As Mr Nolan submits, Mr Simmons was not criticising the Claimant but showing the Court what the Claimant was doing and how, in his opinion, that there was marked inconsistency in how the Claimant presented at different times.[216]While I have no doubt that the experts’ difference of opinion is genuinely held, overall, as noted, I found Mr Simmons an impressive expert witness, and for the reasons given, I prefer his evidence to that of Professor Harris generally. Analysis[217]In carrying out the analysis, I will deal with the facts in this case incorporating any relevant documentary evidence, witness and expert evidence, along with Counsels’ submissions as necessary.[218]It is convenient to start with Mr Smith’s submission that the Court is faced with, ‘a bizarre position’ to be invited to conclude that the Claimant is in an advantageous physical position, and yet he is somehow held to have committed a novus actus.[219]Mr Smith argues that the Claimant has enjoyed a successful amputation, and is therefore, in ‘totality health wise (save for the loss of the lower leg), in a better position compared to that in which he would otherwise have been absent the amputation’.[220]Mr Smith reminds the Court how the Claimant also stated that he now does not consider himself as ‘disabled’ and deems himself ‘to be able bodied’ and views the prosthesis as his own leg.[221]Mr Smith submits that if it were the case that the Claimant had, for example, as a consequence of the amputation, been confined to a wheelchair or subject to ongoing considerable phantom limb pain or similar, then the Court could well understand a defendant being more concerned about the outcome ‘obliterating’ the original injury.[222]Mr Smith submits, however, that the Claimant is in a ‘better position’ than that which he would have been in had he persisted with his injurious leg and references, in particular, the surveillance taken on 8th October 2024. It cannot, therefore, be held that the Claimant has acted unreasonably.[223]The difficulty with Mr Smith’s submission is that the expert evidence does not suggest that the Claimant is in a better position compared to that in which he would otherwise have been absent the amputation. The evidence suggests no more than that the amputation was fortunately a success.[224]Whether the Claimant is in a ‘better position’, therefore, depends on whether his leg required amputation which requires an answer first to the factual question of whether his pre-amputation level of pain and restriction of function was as he asserts, rendering the original negligence, as a matter of law, not simply a cause but the effective cause of the amputation.[225]Further, while the Claimant may subjectively now consider himself as ‘able bodied’ and now views the prosthesis as his own leg is really nothing to the point. The Claimant is, with respect, not able bodied, and the prosthesis is not his own leg.[226]If it were the case that the Claimant had for example been confined to a wheelchair or other ill-fated result of the amputation, then a finding of novus actus is even more likely. The fact that this, fortunately, did not happen, does not mean that the chain is not broken. It is not determinative in that way. Unexpected Outcome[227]It is common ground that there was a risk from the outset that the Claimant’s injury could lead to amputation. To the extent necessary to make a specific finding of a percentage risk, and noting that neither Counsel invite the Court to find otherwise, doing the best I can on the evidence, I find that risk was 5-10%.[228]The surgeons who treated the Claimant’s initial injury provided an expected recovery period of 9 to 12 months. It is quite clear that, at least in the early phase, the Claimant followed that expectation.[229]As Mr Nolan points out, some 8 months post injury, by mid-November 2019, the Claimant was playing ‘walking football’ sufficient to injure his right knee when he ‘trapped’ the football under his injured foot.[230]On discharge from physiotherapy, on 3rd February 2020, some 11 months post-accident, the Claimant was noted to be, ‘walking without Ec at all times, no new issues voiced…Discussed rocker sole shoes, pt declined once more and feels he is ok without’, and on objective assessment, ‘mobile unaided, no limp’, and ‘no issues with R knee, settled well’. ‘Ec’, of course, is a reference to elbow crutches.[231]At this point, Professor Harris agreed that, on discharge from physiotherapy, the Claimant had made ‘typical’ progress, while Mr Simmons opined that the progress made was ‘excellent’.[232]Accordingly, given the same, and given that the Claimant was discharged from physiotherapy weight-bearing, mobile, walking unaided, and walking without a limp, by February 2020, amputation seemed highly unlikely. Specific Request[233]This naturally leads to consideration thereafter, as to when, and in what circumstances, the question of amputation then arose. It is common ground that the first mention of the word ‘amputation’ featured in Professor Harris’ medicolegal report in December 2021.[234]Professor Harris’ examination took place over 2½ years post injury, almost 2 years after discharge from physiotherapy when the Claimant was noted to be weight-bearing and pain-free.[235]The Claimant’s 9th witness statement, dated 8th November 2024, rather gives the impression that it was Professor Harris who first raised the possibility of amputation, ‘the 1st time anybody mentioned to me the question of considering an amputation was when I had the 1st consultation with Prof Harris in December 2021’.[236]The Claimant accepted during oral evidence that that was not the case and agreed that the instigation of the process that led to amputation was his alone following doing his own research and that he knew ‘all the risks’.[237]Furthermore, he agreed that it was he who raised the question of amputation with his treating clinicians in January 2022, and thereafter, began to request amputation during his NHS appointments.[238]The significance of this, as Mr Nolan correctly points out, is that it cannot be asserted that the possibility of amputation was initially led, proposed or recommended by the Claimant’s treating team or any other medical professional. Holiday Photographs/Mobility Aids[239]Before dealing with the covert surveillance footage below, Mr Smith quite properly points out that the Claimant was using a crutch at times, and in particular, made reference to several holiday photographs evidencing the same.[240]In particular, Mr Smith directs attention to the Claimant’s family photographs taken in Cyprus in 2020, and photographs taken in May 2022, at the airport on the way to and while in Florida.[241]These photographs evidence the fact that the Claimant took a crutch with him while travelling abroad. The first photograph shows the Claimant in Cyprus seated with a single crutch positioned behind a chair.[242]The second shows the Claimant photographed at the airport stood with his family with the support of a single crutch in his left hand while waiting to board a flight to Florida. The third photograph, on the same holiday, was taken on a beach in Florida and evidences a crutch in view on the sand.[243]Given the limited number of photographs produced from the holidays, Mr Nolan urged some caution. In particular, he referenced the fact that the 2019 holiday to Las Vegas produced very few photographs which he submitted to be ‘suspicious’.[244]I have little doubt that Mr Nolan uses the word ‘suspicious’ to suggest the Defendant is sceptical or disbelieving that the full range of photographs have been produced in evidence for use at trial.[245]While I have raised some concern above as to the Claimant’s credibility and reliability and have approached his evidence with a degree of caution, there is nothing to gainsay his evidence, supported by Mrs Harrison, that a broken mobile phone may account for the absence of a wider range of photographs.[246]I take a similar view in relation to the Claimant’s use of mobility aids. I accept Mr Smith’s submission that there is no evidence to suggest that the Claimant’s use of mobility aids while abroad was staged.[247]Further, as Mr Smith correctly submits, the TikTok video, dated 23rd May 2022 evidences the mobility scooter being used, as do the photographs taken in Florida at TB5 - 133, 135 & 241. The evidence also suggests that the Claimant’s family hired a 7-seater vehicle to accommodate the scooter.[248]I am satisfied, therefore, that the Claimant was using a wheelchair, mobility scooter and crutch on his holidays in Las Vegas in 2019, Cyprus in 2020 and Florida in May 2022. That, of course, does not necessarily establish that he had a need for the same due to pain and lack of function.[249]I accept Mr Nolan’s submission that it is important not confuse the ‘use’ of mobility assistance with a ‘need’ for such assistance. They are quite different. I also accept that there is no evidence that the Claimant had ever been assessed as having such a need.[250]The use of such mobility aids, and the photographs, of course, were all taken before the covert surveillance first commenced, and only while the Claimant was abroad. There is no suggestion that the Claimant was captured using such aids in the UK save for on 21st November 2023, which I will return to below shortly.[251]During cross examination, the Claimant confirmed that a mobility scooter had not been used on return to Dewsbury after the holiday in Florida as he stated that he ‘didn’t need it’. During re-examination, the Claimant explained that ‘Dewsbury is different to America’, and that there were, in short, greater distances to walk in America.[252]On the evidence, I am prepared to accept that, as late as May 2022, the Claimant had a need to use mobility aids while abroad due to the greater distances that would need to be walked.[253]While I take into account Mr Nolan’s suggestion that the Claimant hired these mobility aids to ‘queue jump’, given there is no evidence that the photographs are staged, I consider it inherently unlikely that the Claimant would have taken a crutch and hired such mobility aids and expended money on the same unless there was a need. Surveillance[254]During the trial, I noted that, on more than one occasion, during the surveillance, for some unexplained reason the Claimant looked backward against his direction of travel. I asked the Claimant about the same, and he stated, in essence, that he did this out of habit and nothing more. There is no evidence to gainsay that assertion.[255]Moreover, as Mr Smith correctly submits, none of the Defendant’s surveillance operatives sought to contend in any of their witness evidence that anyone understood that the Claimant had become aware of their presence during filming.[256]In addition, as Mr Smith also submits, it was never put to the Claimant that he has or has not altered his behaviour on the assumption that he was aware that he was being subject to surveillance.[257]Furthermore, the Claimant was not asked, maybe due to the risk of eliciting privileged information, whether he was aware that there was a possibility that he may be filmed. I accept Mr Smith’s submission, therefore, that it is not open to the Court to find that the Claimant was aware that he was subject to covert surveillance.[258]Mr Smith submits, therefore, that the only conclusion that can be reached is that at the point in time that the Claimant was being subjected to surveillance he was unaware as to the presence of the same.[259]Absent evidence either way, for reasons already given before, it does not naturally follow that there can be, by a process of elimination, a positive finding that the Claimant was unaware of the surveillance.[260]I am prepared, however, to proceed on the assumption that the Claimant was unaware, and on that basis, it must follow that the surveillance evidence is truly independent and demonstrates the Claimant’s true level of function at various points in time.[261]As noted, Professor Harris did not consider the surveillance in detail in the way that Mr Simmons did. Both experts agree, however, that the footage is not consistent with the Claimant’s clinical presentation to them for the purposes of their medicolegal assessment.[262]In the Joint Report, Professor Harris was of the opinion that the footage evidenced the Claimant, ‘walking with a significant limp and using a crutch intermittently which is consistent with someone experiencing ongoing pain and altered function in their foot’.[263]Mr Simmons was of the opinion that the footage evidences the fact that the Claimant does not have a limp. He explained that the Claimant is seen using the 3 phases of walking - heel strike, mid-stance and heel lift, or as he described it, ‘heel, flat of foot, and ball of the foot/toe off’.[264]The importance of this is obvious as it evidences the fact that the Claimant has not adopted a pattern of walking to avoid pain which would typically result in an antalgic gait, i.e., a limp.[265]I accept Mr Simmons’ opinion that in nearly all the surveillance taken from 12th August 2023 to 19th January 2024, the Claimant demonstrates a heel strike when walking, which is inconsistent with someone in ‘unbearable pain’.[266]This heel strike when walking is notable on numerous occasions including on 12th August (when the Claimant is seen able to walk his dog), 24th August 2023, 22nd November 2023, 19th December 2023, and 5th and 19th January 2024.[267]On the said 19th December, 3 months before amputation, Mr Simmons also notes from the surveillance that the Claimant, ‘appears to be walking normally at a fast pace with heel strike and no signs of mobility problems’.[268]I accept Mr Simmons opinion, in essence, that this pattern of heel strike is also consistent with the hardening of the skin photographed at the back of the right heel (as seen at TB2 978) which Mr Simmons explained appears from ‘repetitive forces’, and ‘weight-bearing through the heel’.[269]Although in the Joint Report, Mr Simmons was dealing with the surveillance between the said dates, he explained when viewing the video clip taken at the Alligator Park in Florida in May 2022, that irrespective of whether the reason was physical or psychological, the Claimant was not limping but displaying a ‘waddling gait’.[270]The importance of this ‘waddling gait’ is that it evidences that the Claimant is distributing his weight evenly on both sides as opposed to an antalgic limp where the weight on both feet is unequal to avoid pain.[271]I accept Mr Smith’s submission that the footage on 28th May 2022 showing the Claimant playing crazy golf evidences him moving freely. In fact, the same footage shows the Claimant placing pressure on the right heel. None of this undermines Mr Simmons’ opinion noted above.[272]Moreover, save for one day, at no point in all the surveillance taken pre-amputation, which started in July 2022 and ceased in October 2024, was the Claimant captured using a crutch.[273]That one day happened to be on 21st November 2023, and on the day that the Claimant travelled from Dewsbury to Manchester to see Mr Simmons for the purposes of medicolegal examination.[274]On the said date of 21st November, less than 4 months before the amputation, I accept Mr Simmons’ evidence that, in short, the way in which the Claimant used the single crutch was not what would be expected.[275]In the surveillance, the Claimant is seen using the single crutch in his right hand. Mr Simmons explained that the Claimant would be expected to use the opposite left hand to the injured foot. I consider Mr Simmons’ opinion logical.[276]The opposite hand to the injured foot would be expected to mirror a natural gait, and as Mr Simmons stated to help distribute weight away from the injury. That is exactly what the Claimant did (as seen above), at the airport on 21st May 2022.[277]In the Claimant’s 8th witness statement, dated 22nd May 2024, he states that, ‘Nobody has taught me how to use a single crutch. I use it as I think best to try to provide support. If there is a better way to use it I don’t know it’.[278]On the 13th December 2019, however, the Claimant’s physiotherapist records, inter alia, ‘mobile + 1 Ec, pt leant towards the Ec, corrected with prompts’. Accordingly, it is quite clear that the Claimant has received some input into the use of a single crutch.[279]It is also quite clear from the surveillance on 21st November that the Claimant put weight through the injured foot. Again, as Mr Simmons points out, when the Claimant walked up the stairs he led with his right leg as opposed to his better left leg.[280]I consider that walking up the stairs with his right leg as opposed to his better left leg and the use of the crutch in the right hand does not fit with someone who is experiencing ongoing pain to the level asserted and altered function in their foot.[281]I accept, of course, that the surveillance on the same day evidences the Claimant walking up the stairs at the train station, and avoiding using his heel as he did so. He also avoided placing his heel to the ground when he was rising from the platform bench.[282]I consider, however, that the same does not undermine the observations noted above. In addition, as Mr Nolan also highlights, on that day, the Claimant displayed, (using Mr Nolan’s terminology), a rather ‘strangeness of behaviour’.[283]For example, the Claimant’s demonstrated a ‘tiptoe walk’ around the examination that was never seen anywhere else, and upon which Mr Simmons could identify ‘no significant callosity on the sole of the foot’ to explain the same.[284]Moreover, as noted above, the following day, despite still being in ‘quite a lot of pain’, which took a ‘few days to subside’ (and despite displaying the said ‘tiptoe walk’ and the behaviour at the station as noted above), the Claimant was filmed able to walk without a crutch at all.[285]These concerns are heightened by the earlier surveillance taken on 24th August 2023, when the Claimant was due to see Mr Simmons for the purposes of examination before the appointment was cancelled.[286]In the footage, the Claimant is seen carrying the crutch in his left hand and walking to the car without using the same. The Claimant was, therefore, ready to take the crutch to the said appointment.[287]Once the appointment was cancelled, however, the Claimant was filmed out shopping without a crutch at all. I accept, of course, as noted above, that the Claimant asserts that there were reasons for taking the crutch to the appointment. I will deal with the same in more detail in the Discussion below.[288]Furthermore, on 5th January 2024, a mere 11 weeks before amputation, the Claimant was filmed on a visit to Leeds Police Station. It is clear from this footage, and the Claimant accepted, that the same evidences him walking entirely normally.[289]I also accept Mr Nolan’s submission that the surveillance evidences the Claimant moving ‘swiftly’ and with ‘speed and fluency’. I consider that the contrast between the way the Claimant moves on 21st November 2023, and 5th January 2024 is stark.[290]In addition, 2 weeks later, on the 19th January 2024, less than 2 months before amputation, Mr Simmons notes that the Claimant was walking:
‘without a crutch and with normal gait and heel strike. No evidence of antalgic gait noted. It is difficult to ascertain which is the injured limb…Seen walking over grass normally with normal mobility, walking at normal pace with normal stride pattern….Seen walking normally up the incline.’
[291]Again, adopting the terminology used by Mr Nolan, this evidence inevitably ‘chimes with the small callus found by Mr Simmons - and also with his finding of equal calf girth’.[292]I consider that submission logical. If one foot or leg is being used less than the other, there would naturally be a disparity over time in the size of calf or thigh muscle, and as noted, it is of some surprise that Professor Harris chose not to measure the Claimant’s calf.[293]In light of the above, and in the round, I reject, therefore, Professor Harris’ opinion that the covert surveillance shows the Claimant walking with a ‘significant limp’ and ‘altered function in the foot’.[294]Mr Smith reminds the Court that there are a number of days when surveillance is undertaken that the Claimant is not seen to leave the house. The Claimant addresses this in his 7th witness statement where he states that:
‘Footage only shows days when I have gone out. It does not show me suffering in the house. It does not show me struggling on bad days. It’s notable that on numerous days they did not see me at all. Of course, I can't say for certain, but I would assume that this was because I was not having a good day from a pain point of view and therefore I stayed in.’
[295]I do not find it plausible to the extent it is being suggested, that in all the days of surveillance, there was not a single day, save for the day when the Claimant was due to see Mr Simmons for the purpose of medico-legal examination, that his pain was of a level that did not render him housebound, but did necessitate the need for the use of a single crutch. Function Immediately Prior to Amputation[296]Naturally, while not determinative, the Claimant’s level of function and pain near to the time immediately before the amputation is of some import. To that end, as seen, it is clear that in the weeks leading up to the amputation, the Claimant was able to walk unaided, and with a normal gait.[297]Furthermore, the Claimant engaged in a variety of leisure activities throughout the period between Professor Harris’ medical report in December 2021 and the amputation in March 2024.[298]Such activities included tenpin bowling, crazy golf, snooker, darts, and Airsoft. All these activities required the Claimant to be on his feet, and as Mr Nolan put it, all were undertaken voluntarily for recreation.[299]Moreover, the Claimant accepted that he had engaged in darts very regularly (up to 5 times per week and competitively), and Airsoft on a weekly basis in the run up to the amputation into March 2024, and within a fortnight of the same.[300]As set out in the Joint Report, both Professor Harris and Mr Simmons agreed that the playing of Airsoft was an ‘unusual hobby’ for someone considering a below knee amputation.[301]In his witness statement, dated 21st June 2023, at [28], the Claimant confirms that the overall game time for Airsoft was up to 4 hours, with each game lasting about 30 minutes before a rest period of about 15 minutes.[302]The Claimant also accepted during cross-examination that the players move quickly from room to room, that he does a quick walk on the front part of his foot, that he turns and pivots, and that he has to do the same quickly. As Mr Simmons stated, this would also occur while the Claimant was moving ‘out of the way of flying bullets’.[303]While the Claimant stated that, ‘Sometimes I can manage it. Sometimes I have to sit it out or even stop’, even if correct, given he would naturally be on his feet while playing, and at times, having to change directions, I accept the joint expert opinion that the playing of Airsoft was an ‘unusual hobby’ for someone considering amputation.[304]The Claimant also accepted that (since approximately October 2019) he was able to drive a non-adapted manual motor vehicle (asserted over short distances only) with an ability to use his right foot for an emergency stop. No doubt if the Claimant had any doubts about his ability to use his right foot in an emergency he would not drive.[305]I consider that none of this fits well with someone who is experiencing ongoing ‘unbearable’ or chronic pain and altered function in their foot.[306]I reject, therefore, in the lead up to amputation, the Claimant’s evidence that for most of the time he was in ‘too much pain to be able to do much’, and that the, ‘days when I could do things were quite few and far between’. Position of Treating Surgeons/Exaggeration[307]During trial, I expressed some surprise that neither party had obtained evidence from the treating surgeons. That would have been admissible evidence that may have either supported or undermined the case as to a novus actus.[308]Mr Smith reminds the Court that the Defendant did not plead a position as to the treating surgeons, and that the Court ‘must not visit’ the absence of this lay evidence from the treating clinicians upon the Claimant.[309]I also accept that the Defendant did not plead that the Claimant had misled his treating clinicians. This may well be understandable given the Defence was filed in July 2022 before the disclosure of Mr Simmons’ expert report and the covert surveillance.[310]I accept, however, that it would have always been open to the Defendant to seek permission to amend their pleading, which for reasons better known to them, such an election they did not undertake.[311]Furthermore, while the Claimant may have addressed in his witness evidence the Defendant’s attempt to delay the amputation, the Claimant has never addressed any allegation that he has misled his treating clinicians and was not on notice that he should do so.[312]As Mr Smith also correctly points out, the Claimant informed his treating clinicians, inter alia, that he had both good and bad days, was able to walk up to 1/2 a mile without a crutch, was playing snooker on occasion, playing darts up to 5 times a week, was able to walk his dog and was working at Morrisons.[313]The Claimant did not, however, inform his treating surgeons that he played Airsoft. Mr Nolan submits that the reason for such an omission is that the Claimant knew that such activity was not consistent with the need for amputation.[314]Irrespective of the Claimant’s motivation, and I make no finding as to the same, and irrespective of any specific pleading, what is a clear common fact is that while the Claimant informed his treating psychologist as to his involvement in Airsoft, he did not inform the surgeons involved in the request for amputation of the same.[315]Therefore, it matters not whether the Claimant deliberately misled his treating clinicians or innocently failed to provide such information, the fact remains that they did not have the full picture. Therefore, as Mr Nolan submits, while the treating surgeons agreed to meet the Claimant’s request for amputation the same is not decisive.[316]Nor do I consider that the same can be significantly influential. Not only were the treating surgeons dependent upon the Claimant’s subjective complaints of pain, but Professor Harris and Mr Simmons both agree that the involvement in Airsoft was an unusual hobby for someone considering amputation, information that was outside the treating surgeons’ knowledge. Rejection of Other Treatment Options[317]Mr Smith submits, in short, that Mr Nolan has raised issues here that are not open to the Defendant, which are ‘allegations’ as to mitigation first raised at trial. To support his submission, Mr Smith relies upon Geest plc v. Lansiquot [2002] 1 WLR 3111 per Lord Bingham at Paragraph 16D:
‘It should however be clearly understood that if a defendant intends to contend that a plaintiff has failed to act reasonably to mitigate his or her damage, notice of such contention should be clearly given to the plaintiff long enough before the hearing to enable to plaintiff to prepare to meet it. If there are no pleadings, notice should be given by letter.’
[318]While I understand the way in which Mr Smith develops this submission, I consider that, in fact, the relevance of the evidence here does not go to the doctrine of mitigation at all.[319]The Defendant’s argument is not that the Claimant failed to mitigate his loss by not utilising alternative treatment options, rather its relevance goes to the extent of pain and disability with which the Claimant asserts he was suffering prior to amputation, and whether this evidence supports or undermines the same.[320]To a degree, therefore, it is a curious feature of this case that the Claimant came to amputation on the grounds of chronic disabling pain, without first having exhausted all other treatment options.[321]In particular, I consider that the Claimant’s refusal to even try a hot water bottle to relieve his pain is difficult to understand in the context of a case where he claims at times to be suffering ‘unbearable pain’.[322]I take the same view as to the Claimant’s refusal to undertake the home exercises which were part of the therapy recommended by the psychologist, who was trying to treat him for what was being presented as severe chronic pain.[323]I reject, however, Mr Nolan’s submission that the Claimant’s fear of invasive surgery for a spinal cord stimulator was an odd stance for someone who is prepared to undertake elective amputation.[324]All surgery has inherent risks, and I consider the Claimant’s concern as to the possible devastating outcome of a failed spinal surgery was a perfectly reasonable concern and can attract no reasonable criticism. Painkillers[325]Mr Nolan submits that apart from ‘over the counter’ paracetamol and ibuprofen in the early stages, and one prescription for pregabalin in 2020, the Claimant does not appear to have taken any analgesic medication. Mr Nolan submits that the Claimant did ‘not seek prescription painkillers’ either.[326]Mr Smith submits that, looking at the documentary evidence, Mr Nolan is wrong to submit that the Claimant did not take prescription painkillers. In part, both Counsel are correct.[327]On 3rd January 2023, a letter from Dr. Lumley, Specialty Registrar, Rehabilitation Medicine, records that the Claimant states that his: ‘pain can be variable; he has good and bad days. On a bad day (such as today) the pain can be between 9/10 and 10/10 in severity. Cold weather makes the pain worse. Describes the pain as constant stabbing from the level of the ankle to the forefoot. It is worse on mobilising he also struggles when wearing tight socks around his foot. He is currently not taking any painkillers as he feels that nothing in the past has worked (paracetamol and ibuprofen). Tells me that he is not being prescribed any other analgesia due to the interactions with Epilim’.[328]In a clinical letter, dated 23rd May 2023, from Mr West, Orthopaedic Surgeon, he recorded that, ‘From a technical and logistical point of view I am very happy to proceed with an amputation however he is not currently taking any analgesia, and he does not believe it makes any difference’.[329]Mr West also noted that, ‘This Gentlemen still has chronic pain and has seen the amputation rehabilitation service who would be very keen to optimise his analgesia and medication prior to an amputation.’[330]In his 6th witness statement, dated 21st June 2023, approximately 9 months before the amputation, the Claimant stated that he did not take painkillers as they did not work, and that he had stopped taking them and had done so for the, ‘best part of a year at least’, but added, ‘I wish there was a painkiller that would work, and I would definitely take it.’[331]Mr Smith also highlights that on 12th July 2023, Dr. Montgomery, Consultant in Pain Management and Anaesthesia, wrote to the Claimant’s GP recording that the Claimant had recently started Duloxetine to help his mood and sleep, but explained to him that the medication was also a nerve pain killer.[332]On 13th March 2024, the day of amputation, the Claimant’s ‘current medications’ included Epilim Chrono to treat epilepsy, Duloxetine, and Pregabalin. Pregabalin can be used to treat epilepsy and anxiety but can also be taken to treat nerve pain.[333]On 22nd May 2024, 2 months post amputation, the Claimant was noted to have come off Duloxetine and Pregabalin. In his 8th witness statement of the same date, the Claimant stated that he had been prescribed with painkillers ‘which really helped’ and ‘which particularly assisted with my walking’.[334]The Claimant’s medical records show that, as Mr Nolan submits, that at least in the later stages prior to amputation, the Claimant, ‘did not seek prescription painkillers’. It does not necessarily follow that he was not taking prescribed medication that helped with pain.[335]As noted, and as Mr Smith highlights, the Claimant had started taking Duloxetine to help his mood and sleep, but the medication also worked as a nerve pain killer, and by the time of amputation, he was prescribed, inter alia, Pregabalin which has multiple uses including pain relief.[336]What is plain is that by June 2023, and in circumstances where he had not started to take Duloxetine or Pregabalin at this point, the Claimant had not been taking analgesic medication for some time despite asserting that he was suffering ‘chronic pain’ which at times was ‘unbearable’ for which he wanted (as part of the reason) amputation. Other Documentary Evidence[337]Mr Smith relies upon the contents of a number of other documents that he submits demonstrate the Claimant’s repeated consistent complaint of both pain and loss of mobility subsequent to the accident.[338]On 2nd September 2019, the physio record notes that the Claimant was ‘mobile, unaided, very mild limp to R’, and ‘discussed return to gym, hamstring bench 4.5kgs both legs x 10, repeated for quads bench, cycling level 6 resistance 2 minutes. All pain free.’[339]On 26th November 2019, the Claimant’s GP record confirms that he ‘uses stick when less confident – loss proprioception, loss of mobility of foot, cts physio’.[340]On 20th February 2020, the GP record confirms, ‘cts sign of discomfort – skin graft ridge, cts - ++ hypersensitive, walks with stick’. On 21st February 2020 GP record confirms referral to plastic team, ‘I would be grateful for your opinion and assessment and best way to manage this as it is causing significant discomfort and debility’.[341]As noted above, on discharge from physiotherapy, on 3rd February 2020, the Claimant was noted to be, ‘walking without Ec at all times, no new issues voiced…Discussed rocker sole shoes, pt declined once more and feels he is ok without’, and on objective assessment, ‘mobile unaided, no limp’, and ‘no issues with R knee, settled well’.[342]On 23rd March 2021, there was a GP referral to Plastic Surgery, noting, ‘significant issues with gait and function because of this skin overgrowth and thickening and the discomfort it is creating’.[343]Just under 7 months later on 12th October 2021, following an Orthopaedic and Plastic Clinic review, it was noted that, ‘we have heard Aaron has struggled over the last couple of years with pain and discomfort in around the foot and heel area. The description of his discomfort certainly fits elongate neuropathic pain pathway and having reviewed plain radiographs as well as examination of the soft tissues we have not been able to identify any further surgical target.’[344]The letter continues, ‘We have therefore discussed around the role of pain management, the use of orthotics, repeat integration with the clinical psychology team and exploration around the role of podiatry we have kindly requested appropriate referrals along these lines, and we will plan to review by telephone in 2 months…’[345]On 7th January 2022, after Professor Harris’ examination, Dr. Montgomery, Consultant in Pain Management, noted that following a telephone review, the Claimant, ‘had been left with amounts of pain and disability’ which ‘continues to this day’.[346]Moreover, the note records that the Claimant had tried a, ‘number of different painkillers over the last few years, but he does not find any of those particularly effective’, and that he ‘despairs with his situation at times and has brought up the concept of amputation with his Orthopaedic teams’.[347]On 26th April 2022, a Psychological Outpatient note records, ‘chronic pain’ and ‘ongoing depression and psychological concerns re: pain and disfigurement’.[348]On 11th May 2022, Mr Harwood, Consultant in Trauma and Limb reconstruction Surgeon, notes, ‘small area on the sole of his foot over the flap which does break down at times and this is more the appearance of unstable soft tissue rather than a deep infection making its way to the surface. He is insensate in this area, and we explained the nature of specialised foot skin and that this cannot be replaced by a soft tissue reconstruction’.[349]Mr Harwood continues, ‘Examining him today, he has a reasonable range of motion in his ankle and forefoot, his hindfoot is difficult to assess. He does not have any other allodynia or specific dysaesthesia’ and ‘Radiographs show well healed calcaneal fracture with no radiographic signs of subtalar or other osteoarthritis’.[350]In addition, Mr Harwood notes that the Claimant, ‘has expressed today and previously that he does not wish to consider amputation at this point but contrary to this wishes he had an amputation at the outset.’[351]On 15th June 2022, following face to face review, Dr. Montgomery describes that the Claimant had, ‘deep-seated burning pain in his ankle and he struggles to put shoes and boots on and mobilise’.[352]On 2nd August 2022, Mr Harwood confirms that, ‘His MRI scan of the rest of his foot which has been incomplete has shown an ulcer with some oedema within the vicinity perhaps consistent with posterior ankle impingement’ (there is also a photograph in taken in November 2022 which evidences some wound breakdown).[353]On 5th September 2022, a note from the Department of Clinical and Health Psychology records that the Claimant, ‘reported feeling unhappy with the appearance of his foot and said he thinks he “looks like a freak”. Mr Haley states he sometimes has thoughts about wanting for his foot to be “cut off” and stated when he was in hospital he asked staff for an amputation.’[354]On 23rd January 2023, Dr. Lumley recorded, inter alia, that: ‘Aaron says that the pain can be variable, he has good and bad days. On a bad day (such as today) the pain can be between 9/10 & 10/10 in severity.…He describes the pain as a constant stabbing from the level of the ankle to the forefoot. It is worse on mobilising. ‘Aaron can mobilise for half a mile on flat level ground before having to rest. He does have crutches but would only use these occasionally if he is aware that he is going to walk longer distances e.g. on trips to the coast. He previously had a wheelchair after his initial surgery; however, he struggled with body image issues and feeling that people were looking at him when he was in the wheelchair…[355]On clinical examination, Dr. Lumley noted that the Claimant had an antalgic gait. The skin flap, however, was noted to be ‘well healed’ and there was ‘no skin breakdown currently’.[356]On April 2023, the Claimant informed the DWP that he could walk 200 metres or more ‘on a good day’ and that he used a crutch on a regular basis ‘due to pain to assist with stability’.[357]In a clinical letter, dated 18th July 2023, Mr Harwood, Consultant Trauma and Limb Reconstruction Surgeon, advised the Claimant that amputation was, ‘almost certainly the best way forward’ and a ‘successful amputation’ expected.[358]The reason why Mr Harwood considered an amputation the best way forward beyond supporting the Claimant’s own decision is not entirely clear save for him stating that the Claimant has had a, ‘technically good outcome, but clinically poor outcome with no real target for surgical intervention’.[359]The content of the letter, however, confirms that it was the Claimant who was keen to pursue the amputation, ‘He remains convinced that this is the best way forward for him’, and that Mr Harwood ‘would support that decision’. Discussion[360]It can be seen from the above, that the evidence in this case does not all point in the same direction. This has rendered the need to have regard to the totality of the evidence in more granular detail to build an impression of the Claimant’s condition in the preamputation period.[361]On an analysis of that evidence, as noted above, I am prepared to accept that, as late as May 2022, the Claimant had a need to use mobility aids while abroad due to the greater distances that would need to be walked.[362]In addition, I am satisfied that the documentary evidence above may well demonstrate, based on, but not exclusively, the Claimant’s subjective accounts to his GP and treating clinicians, consistent complaints of both pain and loss of mobility, at least until July 2023.[363]Such analysis, therefore, is superficially supportive, in part, of the Claimant’s decision to amputate. The fact remains, however, as noted, there remained information outside the treating surgeons’ knowledge, and in nearly all the surveillance from 12th August 2023 to 19th January 2024, the Claimant demonstrated a heel strike when walking.[364]Amongst the numerous occasions after July 2023 where such heel strike is noted, which Mr Simmons opined was inconsistent with someone in ‘unbearable pain’, on 19th December 2023, 3 months before amputation, Mr Simmons noted that the Claimant, ‘appears to be walking normally at a fast pace…and no signs of mobility problems’.[365]Furthermore, as also noted above, on 5th January 2024, a mere 11 weeks before amputation, the Claimant was filmed on a visit to Leeds Police Station walking entirely normally.[366]In addition, 2 weeks later, on the 19th January 2024, less than 2 months before amputation, the Claimant was noted to be walking without a crutch and with normal gait and heel strike.[367]Mr Simmons also noted that there was no evidence of antalgic gait, and the Claimant was seen walking over grass normally with normal mobility, walking at normal pace with normal stride pattern, and was seen walking normally up an incline.[368]In this context, and consistent with the same, it important to recall that Mr Simmons noted on physical examination that the measurement of the Claimant’s calf girth was equal on both sides at 41cms.[369]Moreover, as noted, save for one day, at no point in all the surveillance taken preamputation, which started in July 2022 and ceased in October 2024, was the Claimant captured using a crutch.[370]On the day that the Claimant was seen using a single crutch, on the visit to see Mr Simmons on 21st November 2023, less than 4 months prior to amputation, he was using it in an inappropriate way.[371]It is also quite clear from the surveillance that on that day, the Claimant put weight through the injured foot while walking up the stairs as he led with his right leg as opposed to his better left leg.[372]While Professor Harris did not consider the surveillance in detail in the way that Mr Simmons did, both experts agree that the footage is not consistent with the Claimant’s clinical presentation to them for the purposes of their medicolegal assessment.[373]When called upon to explain why he had been observed with a crutch which, coincidentally, only occurred on days he was due to see Mr Simmons, the Claimant explained the same away on two bases.[374]First, on his ‘good day/bad day’ scenario where on a bad day he is rendered housebound, and a good day he is able to walk unaided, and second, due to unknown factors in attending Mr Simmons’ examination including it being a really long day, how long he would be on his feet etc. On the face of it, both reasons are logical, but undermined in two ways.[375]First, the Claimant was unable to adequately explain how, in all the days of surveillance, there was not a single day, save for the day when the Claimant was due to see Mr Simmons, that his pain was of a level that did not render him housebound, but did necessitate the need for the use of a single crutch.[376]Second, the Claimant’s own evidence was that on the second occasion that he was due to see Mr Simmons, he claimed to have overdone it at Airsoft and was in pain, but the very next day he was observed walking unaided. I consider that this tends to suggest that the Claimant sought to provide explanations to fit observations rather than an accurate account.[377]To be added to this is the fact that the Claimant took part in a number of activities such as tenpin bowling, snooker, darts, and Airsoft, all of which required the Claimant to be on his feet.[378]Moreover, the Claimant engaged in darts up to 5 times per week and competitively and played Airsoft on a weekly basis in the run up to the amputation into March 2024, and within a fortnight of the same.[379]The Claimant was at pains to play down his involvement in Airsoft as physically demanding, but both experts agree that it is an unusual hobby for someone considering amputation.[380]The Claimant also accepted that he was able to drive a non-adapted manual motor vehicle with an ability to use his right foot for an emergency stop which would naturally require the application of sudden pressure through the foot.[381]This is all in the context of an amputation which was not initially led by the Claimant’s treating team or any other medical professional, and with a Claimant who by June 2023, had not been taking analgesic medication for some time despite asserting that he was suffering ‘chronic pain’ which at times was ‘unbearable’.[382]As noted, therefore, none of this fits well with someone who is experiencing ongoing ‘unbearable’ or chronic pain and altered function in their foot that was ‘affecting every aspect of his life’ where most of the time they were in ‘too much pain to be able to do much’, and where ‘thedays when I could do things were quite few and far between’.[383]Nor do I consider that this fits well with someone with an ‘ability to only walk on flat ground’, or on the totality of the evidence, with someone that felt that really had no choice but to amputate.[384]While Mr Simmons agreed that if the Court accepted that the presentation of the Claimant’s abnormal gait and use of his mobility scooter in 2022 was genuine, that may place him closer to the cohort of Claimants that may require amputation, having preferred the evidence of Mr Simmons to that of Professor Harris, I accept Mr Simmons’ opinion that the amputation was ‘unnecessary on clinical grounds.’[385]Taking all of the above into account, on the weight of evidence, I am satisfied that the Claimant had not made a complete recovery as hoped, and had some ongoing pain, and a need for mobility aids to at least May 2022 when abroad due to the distances required to walk.[386]I am equally satisfied, however, that there had been a clear improvement in the Claimant’s position between Professor Harris’ examination in December 2021 and August 2023 when he was seen walking for a period of 29 minutes without a stick or crutch.[387]There was also a clear improvement in the Claimant’s position between August 2023 and amputation in March 2024, and as Mr Nolan pointed out, Professor Harris agreed that the fact that the Claimant had improving symptoms was a contraindication to amputation.[388]Moreover, on the evidence, I am satisfied that not only had the Claimant improved, but he was also effectively functioning normally in the months and weeks prior to amputation. Therefore, I am satisfied that the Claimant’s level of pain and function was not the cause of the amputation.[389]The Claimant’s action of amputation, therefore, was deliberate and was not involuntary in the sense of being caused by as a consequence of the position in which the Defendant’s negligence had left him.[390]Accordingly, I am satisfied that the effective cause of the amputation was not the accident but the Claimant’s own conduct which I consider amounts to a supervening event.[391]Put a different way, given that I am satisfied that the Claimant had improved and was effectively functioning normally in the months and weeks prior to amputation, his conduct in seeking amputation is so wholly unreasonable and/or of such overwhelming impact, that it eclipses the Defendant’s wrongdoing and breaks the chain of causation.[392]I accept that the elephant in the room, of course, is quite why the Claimant would undergo a procedure that was not necessary.As Mr Smith correctly submits, however, the Defendant has not pleaded a positive case as to the Claimant’s motivation.[393]Accordingly, beyond that it was not motivated by pain and function as asserted, I make no finding as to the Claimant’s motivation.[394]In circumstances where I have found that the amputation was not an involuntary act brought about by the Defendant’s negligence,I consider it would not be fair to hold the Defendant liable for the same.[395]Finally, I reject Mr Smith’s submission that this finding of novus actus amounts to the Claimant being, ‘punished by the Court…for taking steps to try and improve (and indeed improving) his own health…’ and that the same is ‘an indefensible conclusion for the Court to make’.[396]As noted above, the Claimant was entitled to act as he wished. He is not being punished by the Court for that decision. The finding does no more than hold that the Defendant does not have a legal responsibility for the decision that the Claimant took. Conclusion[397]The answer to the preliminary question, therefore, is ‘no’.