Angela Helen Knott v Newham Healthcare NHS Trust [2002] EWHC 2091 (QB)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
[2002] EWHC 2091 (QB)Case No Case No: 02/TLQ/0619Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
Angela Helen KnottClaimantNewham Healthcare NHS TrustDefendant
Before
Mr Justice SimonMr Colin McCaul (instructed by Immanuel & Co) for the ClaimantMs Catherine Foster (instructed by Morgan Cole) for the DefendantHearing dates: 7-11 October 2002Date 16 October 2002
[1]Mr Justice Simon: Introduction In this action, the Claimant sues her former employer, the Newham Healthcare NHS Trust, for personal injuries which, she contends, were caused in the course of her employment at Newham General Hospital.[2]On 11 th March 1998, the Claimant, who is a nurse, had worked the early shift on Beckton Ward. She went home early. The following day she had a bath and slipped slightly as she was getting out. She spent the rest of the day in bed. The following morning she awoke with a severe pain in her back.[3]It is clear that the Claimant had suffered serious damage to intervertebral discs at T12/L1 and Ll/2 and neural damage. As a consequence, the Claimant has had to undergo two operations and has suffered considerable pain and discomfort.[4]The basis of her claim is that the Defendant failed to exercise proper care for her while she was in its employment. In particular, she claims that it had no proper or adequate system for manually handling patients with the result that she was exposed to the risk of back injury, suffered back injury and consequent loss and damage. Background[5]The Claimant was born on 18 th January 1966 and is now aged 36. She has spent all her working life as a nurse. From January 1987 to April 1991 she was a student nurse in Hertfordshire. From April 1991 to February 1992, she was a junior Staff Nurse (Grade D) at Northwick Park Hospital in Harrow. From about February 1992 to March 1993 she was a Staff Nurse on a medical ward at St. Bartholomew's Hospital. From about March 1993 to March 1994, she was a junior Sister (Grade F) on a medical ward at Hammersmith Hospital. After a period of travel, she returned to St. Bartholomew's as a Staff Nurse (Grade E/D) and then as a Staff Nurse (Grade E), where she received training in treating HIV patients.[6]In January 1996 she commenced employment with the Defendant. She worked in the Hospital on the Beckton Ward which was an acute medical ward which catered for highly dependant patients (sickle cell, HIV and cardiac patients) all of whom needed constant care and attention. Initially she was employed as a Staff Nurse (Grade E). However, from 5 th January 1998, she was employed as a Junior Sister/Charge Nurse (Grade F), with responsibility for caring for HIV patients. In practice, the Claimant was in charge of Beckton Ward, when she was on duty.[7]Beckton Ward was a ward of 28 beds which shared certain facilities with an adjacent ward, Plashet Ward. Among the shared facilities was a hoist used to lift patients. One of the issues between the parties is the extent to which patient lifting equipment was adequate and available for use by the nursing staff. That is a matter to which I will return later in this judgment.[8]Whatever may have been the intended reporting lines, in practice the Claimant was responsible to the Senior Ward Sister for Beckton Ward, Vernessa Cummins. From October 1997, Sister Cummins reported to the Principal Nurse Manager for Medicine and the Elderly, Alison Hickman. Mrs Hickman (who was responsible for 9 wards and a number of other units) was based at St. Andrew's Hospital at Bow. Before October 1997, Sister Cummins reported to Anne Claydon, who was the Clinical Nurse Manager of Beckton and Plashet Wards. The Principal Nurse Manager for Surgical services was Janet Shankland.[9]It is common ground that, at least from September 1997, there were acute shortages of staff (particularly trained staff) which affected the whole Hospital Trust and Beckton Ward in particular. Experienced staff were leaving and were being replaced by agency staff. It is the Claimant's case that the agency staff were less qualified, less motivated and less familiar with the ward routine; and that this placed additional burdens on the permanent nursing staff on the ward.[10]The position was described by Sister Cummins in a letter about the Beckton and Plashet Ward nursing staff to the Chief Executive of the Defendant Trust dated 22 nd January 1998. "We are writing to draw your attention about our concerns regarding the poor staffing and resources provided for these wards. At present morale is at its lowest that we have seen, and this is reflected in the mass exodus of staff recently. With no replacement it adds extra stress on the already stressed out nursing staff adding enormous responsibilities on newly qualified staff who need nurturing and development. In line with the UK CC ( The Central Council for Nursing ) Code of professional conduct we are in breach of practice and all that the profession entails. As professionals we feel that the environment in which we care for our patients are inadequate, in fact patient care is affected. We can honestly say that staff satisfaction is non-existent. If the present situation continues we feel that our practices are compromising our standards and registration." It is clear from the evidence that there was a shortage of qualified staff in January 1998, and that the shortage had existed from at least September 1997.[11]The Claimant's medical records show that during the period 1997 to March 1998, she suffered bouts of depression for which she sought medical advice. These bouts of depression appear to have been partly related to personal difficulties in her marriage and partly related to the stress of her job. There is nothing in the medical records at this time to indicate that the Claimant was manifesting symptoms which indicated a problem with her back.[12]Much of the evidence given in the course of the trial related to the understaffing and the problems that this caused in patient care. However, although these issues are of general importance and concern, they are not directly relevant to the issues which arise in this case.[13]The central allegation made by the Claimant against the Defendant Trust is not that the understaffing caused her injury; but that the Claimant was required to carry out lifting of patients without any of the appropriate equipment, assistance and training; and that this caused her injury. The Claimant's case[14]Although the Claimant suffered what she described as "aches and pains" and "complete body ache" at the end of her shift, she says that she did not feel symptoms associated with back pain until January 1998 when she had to lift a particular long -term brain-injured patient (Patient M) a number of times in the course of a day. Patient M was paralysed and totally dependent. On two occasions, the Claimant says she asked her sister, Andrea McIver (an auxiliary nurse on Plashet Ward), to help her. At the end of this particular shift, the Claimant gave evidence that she experienced backache and that this was the only time before March 1998 that she experienced backache. Ms McIver recalls the Claimant saying at the time that her back was "killing" her.[15]The Claimant's evidence is that, on 11 th March 1998, she got home at about 4.30 pm and went to bed early as she was feeling tired and was aching in her back and legs. The following day (12 th March) was her day off. She intended to go to the super market but decided to put it off since her back pain was worse. She took a pain killer and decided to have a bath. On getting out of the bath she slipped slightly although she did not fall. She spent the rest of the day resting and by 10.00 pm was in considerable pain.[16]The following morning (13 th March 1998), she woke with severe pain in her lower back. She had great difficulty in getting out of bed and noticed that she had urinated in the bed, without being conscious that she had done so.[17]This initial stage lasted for about 2-3 weeks, during which she suffered lower back pain, sensory disturbance extending to her legs, urinary incontinence and an inability to sit still for more than 15 minutes.[18]In March 1999, the Claimant was operated on by Mr Natali (a consultant Orthopaedic Surgeon) at the Royal London Hospital. The operation involved decompression of the T12/L1 and L1/L2 discs with a combined anterior and posterior fusion. Following the operation her symptoms improved. Although still in pain, she was able to walk and sleep properly. However, she was advised she could not have children and still had to wear incontinence pads.[19]By January 2000, the lower back pain was improving. Her sensory disturbance was limited to the lack of orgasm; but she was still unable to sit properly for more than 15 minutes at a time.[20]From about June 2000, the Claimant started to experience increased pain in her left side. By September 2000 the pain was acute and an x-ray taken at the time showed that the screws in the metal work in her spine had broken The Claimant underwent a further operation in November 2000.[21]The Claimant's case is that, from at least September 1997, she had to do an extensive amount manual handling of patients due to staff shortages and that she suffered prolapses to the discs in her upper back as a result of trauma caused by the heavy lifting. The Defendant's case in summary[22]The Defendant accepts that there was pressure on staff on the Beckton Ward. However it is the Defendant's case that the Claimant has exaggerated the amount of manual lifting she did; and that the lifting was not heavy and continuous such as to be likely to cause damage to her back. The Defendant's case is that the Claimant suffered from a "constitutional" degenerative disc disease unrelated to her work; and that the symptoms which she suffered were triggered by the slip getting out of the bath on 12 th March 1998. It is the Defendant's case that disc protrusion occurred spontaneously due to the natural progression of her degenerative disc disease. Issues[23]The following issues arise: i) Was the Defendant in breach of its statutory and/or the common law duty that it owed to the Claimant? The answer to this question depends largely on whether the Defendant operated an appropriate system for lifting patients in the Becton Ward. ii) If yes, whether such breach caused of materially contributed to all or any of the physical and psychiatric injuries suffered by the Claimant? iii) If yes, what loss and damage was sustained by the Claimant? Issue 1. Breach of Duty[24]It is the Claimant's case that the lack of appropriate lifting equipment meant that the Defendant was effectively operating a policy of moving patients manually, and that this was unsafe and contrary to the Manual Handling Operations Regulations 1992 which were in force at all material times.[25]. Regulation 4 provides:
"Duties of employers. - (1) Each employer shall - (a) so far as is reasonably practicable avoid the need for his employees to undertake any manual handling operations at work which involves a risk of their being injured; or" "
Manual handling operations" are defined as "transporting or supporting of a load (including the lifting, putting down, pushing pulling, carrying or moving thereof) by hand or by bodily force." A "load" is defined as including a person. Regulation 4 continues:
"(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve the risk of their being injured - (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them . . . (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable . . ."
[26]An assessment of what is "reasonably practicable" involves placing the risk on one side of the scale and the sacrifice involved in averting the risk (expenditure, time and trouble) in the other side of the scale, see Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 at 712.[27]There is no evidence that the Defendant made an assessment before March 1998; or that it took appropriate steps to reduce the risk of injury caused by the manual handling of patients to the lowest level reasonably practicable. On the contrary there were two areas of risk which the Defendant plainly failed properly to address.[28]First, it was clear from the evidence of Sister Cummins and Mrs Claydon that the "Drag lift" was habitually used to move patients in Beckton Ward in the period June 1997-March 1998. The "Drag lift" is a way of handling the patient in which one or more nurses places a hand or arm under the patient's armpit. It has been criticised as a method of lifting since 1981 as dangerous both to patients and staff. So far as nurses are concerned there are five particular faults:(1) it creates a shearing force across the shoulders,(2) the load is taken at a distance from the base of the spine (3), it involves a twist, (4) the patient tends to depend on the nurse for support because the strong force under the armpit makes the patient think the nurse can support the patient's weight and (5) nurses have difficulty in lowering a patient who collapses.[29]"The Guidance on the Manual Handling of Loads in the Health Services (first published in 1992) draws attention to the problem of lifting in general terms:
"In recent times evidence has been mounting which points to a cumulative effect of over-frequent or over-prolonged physical effort on the likelihood of future injury ... It is widely accepted that a person may suffer back injury or trigger an attack of pain in an already damaged spine by a relatively trivial movement or action. An aching back or limbs at the end of a working day should not simply be accepted as an occupational hazard. Early warning signs of possible musculo-skeletal damage should be identified and appropriate action taken."
[30]In the case of Koonjul v Thameslink Healthcare Services (2000) PIQR p.123, the Court of Appeal reiterated the need to show a real risk of injury before Regulation 4 was engaged, see Hale LJ at p.126. The faults inherent in the Drag lift, as set out in paragraph 28, demonstrate the real risks of injury inherent in the Drag lift.[31]Despite the published criticism of the "Drag lift", it still appears to be commonly used in hospitals. The attitude of the Defendant's witnesses seemed to be that they knew that the "Drag lift" should not be used; but that they recognised that it often was. In my view the published criticisms of the "Drag Lift", which identify a real risk of injury from the use of the "Drag Lift", are justified.[32]Secondly, it is clear from the evidence that there was only one hoist which could be used in the two wards, and that the hoist was often inoperable. This was because either it had broken down or because the slings were being cleaned. The Claimant thought that it was out of use approximately 6 months in the year prior to March 1998. Sister Cummins thought it was only about 3 months. In her evidence Mrs Claydon accepted that one hoist was inadequate. Mrs Hickman said that there were insufficient mechanical aids on Beckton Ward and throughout the Defendant Trust.[33]The consequence of the inadequacy of mechanical aids was that the staff would be more likely to use the "Drag Lift".[34]In my judgment the Defendant's arrangements for lifting were inadequate properly to protect their staff and patients on Beckton Ward. This was particularly so bearing in mind the high degree of dependency of the patients on the ward.[35]It follows that I find the Defendant did not operate an appropriate system for lifting patients in the Becton Ward. I also find that no real steps were taken to reduce the risk of injury to their employees to the lowest level reasonably practicable in the relevant period; and that, so far as Beckton Ward was concerned, there was no adequate response to the 1992 Regulations.[36]However, before turning to the questions that arise on causation, I must make a finding of fact in relation to the amount of lifting that the Claimant actually carried out.[37]The Claimant relies on "An analysis of lifting carried out" in the Report of Danielle Holmes, a nursing expert on the safe handling and movement of people in the health services. In Appendix D of her Report Mrs Holmes analysed the daily lifting carried out by the Claimant on Beckton Ward. The analysis sets out the various lifting tasks that the Claimant could be expected to carry out in the course of a shift. This included: raising the patients in the morning and for lunch, transferring patients between bed, commode and armchair, administering bedpans and bed baths, taking patients to and from the bathroom and putting patients to bed. The conclusion drawn by Mrs Holmes was that on an average morning shift the Claimant carried out 98½ lifts on her own and 87 lifts with another nurse, and that on an average afternoon shift she carried out 64 lifts on her own and 116 with another person. On this basis, Mrs Holmes calculated that the total load lifted was 9.9 tonnes in the morning shift and 8.5 tonnes in the afternoon shift.[38]I am not satisfied that this analysis is accurate. In my view it significantly overestimates the lifting tasks carried out by the Claimant. Although there was an acute shortage of staff on the Beckton Ward, the shortages were primarily of skilled staff. The lifting tasks described in Mrs Holmes's analysis could and, in my judgment, would have been carried out by the less qualified auxiliary nurses of whom there does not appear to have been such a shortage. The skilled staff, including the Claimant, were required to carry out the skilled nursing tasks: the paperwork involved in the handover at the beginning of the shift, the administering of drugs orally, intramuscularly and intravenously, and accompanying the consultants and registrars on their rounds. These skilled nursing tasks would have taken longer on Beckton Ward in view of the high levels of dependant patients and the different and serious conditions from which they suffered.[39]That is not to say that the Claimant did not carry out lifting tasks. It is clear from the evidence that she did so as part of her general nursing care of her patients. As she put it:
"nurses look after patients whatever grade you are."
This would particularly be so if the part-time staff required supervision (as she thought they did) and some of the patients were bed-bound (as they were). If help was needed in lifting a patient she would help. I am unable however to rely on the quantitative analysis of the lifting carried out by the Claimant, which is advanced on her behalf.[40]The Defendant submission that the Claimant had carried out minimal lifting tasks was not helped by the fact that they had failed to carry out any assessment. Having heard the witnesses in this case, the best (but necessarily imprecise) assessment that can be made is that the Claimant regularly carried out some heavy lifting tasks during each shift that she worked in the course of 1997 and that, after September 1997, the heavy lifting tasks increased. This assessment is qualified by the fact that the Claimant only worked 97 shifts in the period 14th August 1997 to 12d' March 1998. Issue 2: Causation[41]There is a sharp divergence between the parties as to the cause of the Claimant's injuries.[42]Following her injuries, the Claimant gave a history of her symptoms to her GP, the Consultants who saw her and the experts who examined her. This history was plainly relevant to medical diagnosis and, ultimately, to the expert evidence. The Claimant's account is also plainly relevant to the issue of causation. I must deal with five particular points. a) First, the Claimant gave evidence before me that she was suffering from backache before getting into her bath on 12th March 1998. b) Secondly, (at least in the early stages) the Claimant attributed her injuries to the slip getting out of the bath. c) Thirdly, the Claimant said that, in the period March 1997 to March 1998, she had undertaken more lifting than normal and many of the patients had been heavy and dependent. d) Fourthly, the Claimant described "the development of low back pain and aching in the spine during the period of nearly a year" before March 1998. e) Fifthly, the Claimant said that there was one particular injury when she was lifting a patient which gave rise to a persistent pain in her back "for several weeks". (For the second point, see GP notes; for the third to the fifth points, see Prof. Swash's 1 st Report).[43]Having heard the Claimant, I accept her evidence on the first point. I am satisfied that the Claimant was suffering from backache before she took her bath; although she may not have appreciated its significance.[44]The second point is of less relevance to the issue of causation. The Claimant may have initially thought that her injuries were due to a slip, but she is not a Doctor and the Expert opinions are inherently likely to be more reliable as to the cause of her injuries.[45]I accept the Claimant's evidence on the third point, subject to two qualifications. First, the lifting burden was more concentrated in the period starting in September 1997. Secondly, the lifting burden should not be overstated for the reasons already set out.[46]I do not accept the Claimant's case on the fourth point. Indeed she conceded in her evidence that this did not reflect the true position. She undoubtedly suffered from "whole body ache" at the end of shifts. She did not, however, develop low back pain during the year March 1997- March 1998.[47]On the fifth point, I accept that the Claimant suffered back pain after lifting patient M. I do not accept that this gave rise to persistent pain over a period of several weeks. I also accept that she was suffering from back pain before taking her bath on the 12th March 1998.[48]Each side called an expert on Orthopaedics (Mr Rushman for the Claimant and Mr Poole for the Defendant) and Neurology/Neurosurgery (Prof. Swash, a neurologist, for the Claimant; and Mr Sinar, a neurosurgeon, for the Defendant).[49]All experts were agreed that, as at March 1998, the Claimant was suffering from long standing degenerative deterioration to the lumbar spine (to both bone and disc) in the region T12/L1 and L1/L2. The origin of the disease is unclear; but is likely to have started with deterioration or damage to the discs, leading to inflammation and the development of osteosphyte formation (boney deformations) in the vertebrae.[50]. The experts disagreed, however, as to the cause of the Claimant's injuries.[51]. In summary, i) The view of the Claimant's experts was as follows: a) The Claimant's degenerative disease had been advanced by the process of lifting during employment with the Defendant; b) There had been a protrusion of the T12/L1 and Ll/L2 discs on or about 12th March, which was directly attributable to the lifting. c) This protrusion had caused damage to the conus (the base of the spinal column) and the adjacent nerve roots. d) The damage to the conus or surrounding nerves had caused the Claimant's neurological symptoms. ii) The view of the Defendant's experts was as follows. a) The degenerative changes were the cause of the Claimant's symptoms, including the neurological symptoms. b) These degenerative changes developed many years before March 1998 and were not affected by the lifting the nature of the Claimant's work. c) The Claimant's back was unstable and the slip getting out of the bath triggered the Claimant's injuries. d) There was no evidence of significant disc protrusion and no evidence of consequent injury to the conus.[52]It is convenient to start with the neurological damage. An AM scan of the Claimant's back was taken on 22nd April 1998. The Radiologist's report records:
" ... there are disc bulges seen at D12/L1, L1/L2 and L5/(S1) levels. The canal is generous in proportion and there is no evidence of any focal neural compression at any level. The Conus appears normal. No explanation for the symptoms seen."
[53]The evidence of Prof. Swash (who is Professor of Neurology and a consultant Neurologist at the Royal London Hospital) was that the neurological symptoms could only be explained by some degree of damage to the conus. His evidence was that compression of the conus, if lasting longer than 6-24 hours, would cause permanent neurological injury. Although there was no clear image of disc impingement, this could have been due to the supine position of the patient when the image was taken or to the desiccation of the protruded disc material. It was his firm view that, in the light of the symptoms and the disc pathology, the only explanation for the neurological symptoms was compression to the conus. It was suggested to him that the Claimant's neurological symptoms might have been caused by some movement of the vertebrae or boney spurs when she slipped getting out of the bath. He rejected such an explanation. In his view this could not happen.[54]I accept the evidence of Prof Swash on this point. He gave his evidence (as did Mr Rushman) in a clear and measured way and did not attempt to argue the case. As well as being particularly well qualified to give expert opinion on the point, he had carried out a full neurological examination of the Claimant. This revealed absence of anal reflex bilaterally which was only consistent with damage to the conus.[55]I accept the evidence of Mr Rushman and Prof Swash that the most likely cause of the compression of the conus was a protrusion of the adjacent discs (bulging of the posterior side of the disc annulus which impinged on the conus). I regard the Defendant's suggestion that the neurological symptoms were unrelated to the disc damage as being unlikely.[56]The Claimant's degenerative disc disease rendered her particularly vulnerable to disc prolapse. The lifting that she carried out on Beckton Ward would have significantly loaded her lumbar spine and advanced the likelihood of disc protrusion in this area. There was a degree of common ground as to the propensity of nurses to suffer disc prolapses due to the nature of their work. Prof. Swash, Mr Rushman and Mr Pooley all agreed that nurses lift in an unnatural way such as is likely to cause injury to the back; and lifting is widely regarded as a major cause of disc prolapse in nurses. As Mr Rushman put it: nurses lift differently, they have to arch their backs forward to get into position. This causes disc bulging; and damage may be caused by further loading.[57]The Claimant had two specific bouts of backache (while lifting patient M and on 1 It' March 1998) that were, in my judgment, directly related to lifting work and were indicative of deforming changes in the structure of the spine.[58]It is impossible precisely to determine the progression of the Claimant's disc failure. However, in my view, the lifting of patients by the Claimant during the period of her employment with the Defendant is likely to have damaged the annulus of the discs posteriorily. The damage may have repaired itself; but the annulus would have been progressively weakened thereby increasing the likelihood of a disc protrusion and further injury. The disc prolapse and neural damage was the eventual result of this process.[59]It follows that, in my judgment, the Defendant's breach of duty caused (and, at the very least, materially contributed to) the Claimant's injury. Issue 3: Damages[60]The Claimant suffered serious and painful injuries: a disc prolapse at T12lL1 and Ll/L2 levels with compression/lesion of the conus. The Claimant has suffered and continues to suffer from low back pain, particularly when sitting. Her evidence before me was interrupted so as to enable her to take breaks. She also suffered from sensory disturbance in the sacral segments, loss of feeling in the vagina and loss of orgasmic sensation, bladder dysfunction causing incontinence, and anal sphincter difficulties causing some faecal incontinence.[61]. She underwent the operation in March 1999 for which she was in hospital for 10 days.[62]In about September 2000, it became apparent that the metal pins which had been inserted in the Claimant's back had fractured. As a consequence she suffered very great pain, her movement was severely limited and she was obliged to use a wheelchair. She underwent an operation to remove the metal work from her spine in December, during which she was in hospital for a fiuther 5 days. Subsequent to this operation she became ill for a month due to an infection in the wound caused by the operation. She will not benefit from any further operation. She has undertaken physiotherapy to alleviate her condition.[63]She now lives in a house in Berwick-upon-Tweed, where her family live. She is continually aware of her back and suffers from pain, and occasional painful spasms, on her left side. She has aching in the middle of her back from the early afternoon and takes painkillers and Diazepam to prevent muscle spasm. During her monthly periods she takes Dextromeramide for severe pain, is bed bound and has an in-dwelling catheter.[64]She cannot lie down flat and is unable to have children (although her desire to have children is relatively recent). She has sleeping difficulties. She also suffers from depression, although this pre-existed her injuries. Her injury has placed considerable strain on her marriage.[65]Socially she has lost confidence since her injury, finds herself bored with her life, unable to drive and incapable of cooking and other chores around the house.[66]In my view, the social aspects of her life are likely to improve with the resolution of this case. The physical debilities from which she suffers are unlikely to improve.[67]She has been registered as disabled since about September 2000 and has been assessed by the Occupational Therapy Department of Berwick Hospital. She has been advised by her GP that she would benefit from help from a specialist pain clinic and is currently attending a pain clinic.[68]The Claimant had been a nurse since the age of 18 and has suffered a loss of role and self esteem as a result of her injury. The Joint Report of the Psychiatrists in this case makes it clear this has contributed to her psychiatric symptomatology. They agree that her inability to continue nursing as a vocation represents a loss of congenial employment. I accept that evidence.[69]At the date of her injury the Claimant was employed as a Grade F junior sister earning £20,249 gross. An Employment Report on the Claimant has been prepared by Dr Allan Dodds. In his view, the Claimant would have left Newham Hospital, where she was unhappy with her work and would have sought alternative employment in a London Hospital. General Damages[70]In the light of the factors set out above and by reference to the established guidelines for this type of injury, I assess the Claimant's General Damages as follows: i) Pain, suffering and loss of amenity: £40,000. ii) Loss of congenial employment: £5,000.[71]There are two further items claimed as General Damages: a claim representing a lost chance of promotion (£9,000) and a claim for handicap on the Labour Market (£ 15,000).[72]The lost chance of promotion is calculated on the basis that the Claimant would have progressed beyond Grade G to Grade H. If she had done so, she would have been earning a further £2,250 pa. The sum of £9,000 is arrived at by applying a multiplier of 15.73 and discounting at 25% to represent the loss of a chance. In my Judgment the chance of the Claimant progressing beyond Grade G was remote. She would have had to taken a degree in Health and Social Studies in order to progress beyond Grade G, she suffered from considerable difficulties in her personal life and her attendance record was poor. In my view Grade G was the level at which she would have stayed.[73]The claim for loss of earning capacity by reason of Claimant's disability is based on 18 months earnings. I have to decide whether there is a substantial or real risk that at some point in the Claimant's working life she will find herself on the labour market for some reason; and, if so, whether her disability will place her at a disadvantage by comparison with an able-bodied contemporary. The Defendant submits that the Claimant will not be at a disadvantage due to the effect of the Disability Discrimination Act 1995. There is no evidence as to the practical protection that the Act would provide to someone in the Claimant's position. However, I am not persuaded that there is a substantial risk that the Claimant will be disadvantaged in the market by reason of her disability. In my view the Claimant is likely to be employed in the public sector where she will not be at a disadvantage by reason of her injury. If the Claimant was awarded damages both for future loss of earnings and under this head, there is a significant risk that she will be overcompensated. Special Damages.[74]Many of the items which were initially in dispute are now agreed. The following matters are not agreed. i) The cost of a personal carer. The evidence of need is slight. In my view claim for the cost of a personal carer is not made out on the facts of this case. ii) Future transport expenditure. The sum originally claimed was £53,170. This head of damage was advanced on the basis of the care expert's recommendation for a car with automatic transmission and power assisted steering; and proceeds on the basis that such a car has to be replaced every 5 years. Mr McCaul did not seek to support such a claim; and I find it surprising that it was ever advanced. The claim is now advanced on the basis of the price of a new car less the trade-in price of the Claimant's present car: £8,845. However, in my view, such an award would significantly over compensate the Claimant. She does not require a new car as a consequence of her injuries, she requires a car with specific (but not uncommon) characteristics. I assess the extra costs of purchasing a car with automatic transmission at £500, and I award this sum under this head. iii) Past expenditure The Claimant claims £1,100 being reimbursement of the cost of a Lap top computer. This head of damage is not recoverable. It is a common item and the need for it does not arise from the injury. iv) Equipment recommended now This covers: i) Equipment to minimise mobility difficulties, ii) Equipment to maximise independence in personal care, and iii) Equipment to encourage good posture, see Care Assistance Report (D p.124-5). The Defendant did not question the witness about the need for these items and I am satisfied that they are necessary. However, in my view the continuing costs are likely to have been overstated and consequently I propose to allow the claim in the sum of £11,000. v) Past expenditure on purchase of reading material. £4,284 is claimed, on the basis that the Claimant has occupied her mind since March 1998 by reading books which she has purchased. In my judgment the Claimant has made a personal decision to buy books. The cost of purchasing books is both too remote and unjustifiable in amount. vi) A sum of £3,906 to represent future housing needs This is calculated on the basis of a cost of £5,000 in 10 years, discounted for early payment. I am not persuaded of the need to move in 10 years time and consequently disallow this head of damage. vii) Increased cost of electricity past and future (£1,626) This claim is based on the fact that the Claimant has spent, and will spend more time at home, and this leads to an increase in electricity costs. I accept that this head of damage is recoverable; but allow the sum of £750 to cover increased electricity costs. The deduction takes into account the likelihood of the Claimant staying at home even if her injury had not occurred as well as savings in travel to work. viii) Past and Future earnings a) Is indicated above, the resolution of this case is likely to have a beneficial effect on the Claimant's self-esteem and motivation in finding employment. b) The Claimant intends to qualify as a counsellor. When trained and accredited, the Claimant will be well suited and qualified for this occupation. c) In my view she will be physically able to and will actually gain employment 6 months from the date of this judgment. d) I have also concluded that some of the estimates of the Claimant's likely remuneration are too pessimistic and do not take sufficiently into account the Claimant's determination and ambition to succeed in her new career: i) For the first 2 years I would expect the Claimant to work part time and earn a gross average remuneration of £7,500. ii) Thereafter I would expect the Claimant to work longer hours and earn a gross average remuneration over the remaining years of her working life equivalent to £15,000 pa. ix) Loss of fringe benefits (£5,040) This sum represents the benefit of a subsidised canteen. I accept that this item is recoverable. But, again, in my view the loss has been overstated in view of the Claimant's past attendance record and the possibility of alternative fringe benefits in future employment. I propose to allow the claim in the sum of £4,250.[75]I should finally mention the question of contributory negligence. Although this was pleaded in the Defence, it was not (quite rightly, in my view) advanced in argument in the Defendant's closing submissions. It is therefore unnecessary to say anything further about it. Conclusion.[76]For the above reasons there will be judgment for the Claimant with damages to be calculated in accordance with this judgment.

Cited in 1 later judgment