Plampin v Havering NHS Primary Care Trust [2006] EWHC 39 (QB)

Case No HQ 0402941[2006] EWHC 39 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 th January 2006
Before
THE HONOURABLE MR JUSTICE FORBES
Between
Christine PlampinClaimantHavering NHS Primary Care TrustDefendant
Julian Matthews (instructed by Gadsby Wicks) for ClaimantAngus McCullough (instructed by Barlow Lyde & Gilbert) for DefendantHearing Hearing dates: 17 th, 18 th, 19 th, 20 th and 21 st October 2005
Judgment
[1]Introduction. On 10th September 2000, Mr George Plampin (“Mr Plampin”) fell from a ladder from which he was, or had recently been, pruning a creeper that was growing on the side of his house. As the result of the fall Mr Plampin suffered (inter alia) a severe head injury, with resulting brain damage caused by a sub-dural haematoma. This injury caused significant disability, with both physical and cognitive impairment. On 17th February 2001, some 5 months after his fall from the ladder, Mr Plampin sustained a ruptured dissecting aneurysm of the aorta from which he died. Mr Plampin was born in April 1941 and was therefore almost 60 years old. It is common ground that Mr Plampin’s death was not caused by either the fall or the brain injury and that he would have died from the ruptured aorta in any event.[2]In 1959, when he was about 18 years old, Mr Plampin was involved in a motor cycle accident, as a result of which he underwent a below-knee amputation of his right leg. Thereafter he was fitted with and used a succession of prosthetic limbs (artificial legs) and became very proficient in their use. At all material times, the Defendant has been responsible for the service that supplied and fitted Mr Plampin with his artificial legs.[3]The Claimant in these proceedings is Mrs Christine Plampin (“Mrs Plampin”), Mr Plampin’s widow and the executrix of his estate. She brings this action for the benefit of Mr Plampin’s estate under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934. It is Mrs Plampin’s case that her husband’s fall and his resulting injuries were caused by the negligence of the prosthetists/technicians (for whom the Defendant is and was at all material times responsible) who fitted Mr Plampin with his various artificial legs. In particular it is alleged:(i) that an artificial leg supplied in 1995 (“the 1995 prosthesis”) was too long, so as to create a foreseeable risk of injury to Mr Plampin and(ii) that Mr Plampin’s fall from the ladder in September 2000 was caused by the excessive length of the 1995 prosthesis and was thus due to the Defendant’s negligence. The Defendant disputes both principal allegations, although it is accepted that Mr Plampin was wearing the 1995 prosthesis when he fell from the ladder.[4]These proceedings are concerned only with the issue of liability. The two main issues of fact can be summarised as follows:(i) whether the 1995 prosthesis was too long and(ii) if it was too long, whether its excessive length did cause or contribute to Mr Plampin’s fall from the ladder.[5]As it seems to me, there are two further matters that should be mentioned at this stage of my judgment. First, I accept Mr McCullough’s submission that the essential question raised by the first issue of fact is whether the 1995 prosthesis was functionally too long so as to create a foreseeable risk of injury to Mr Plampin (i.e. the issue is not whether it was too long by reference to some predetermined or theoretical standard such as an engineering specification: see also the latter and crucial part of the second answer given by the experts at their joint meeting, quoted in paragraph 10 below). Second, it is common ground that the following two problems will result from wearing an artificial leg that is functionally too long:(i) backache (which may or may not resolve after a time) and(ii) a noticeable disturbance of the wearer’s gait (which will not resolve).[6]I therefore turn to set out the facts as I find them to be on to the evidence that I have heard and read during this trial and in the light of the detailed and helpful submissions made by Mr Matthews on behalf of the Claimant and Mr McCullough on behalf of the Defendant.[7]The Facts. Mr and Mrs Pamplin were married in 1969 and had three children (two sons and a daughter). I accept Mrs Plampin’s evidence that her husband led a very full and active life, despite the fact that he had an artificial right leg: see paragraph 16 of her witness statement dated 28th February 2005, which is in the following terms:
“I had known George for some six weeks or so before I discovered that he had suffered a leg amputation and was wearing a prosthesis. I had noticed a slight limp but had assumed that it was a temporary sports injury or something similar. Over the years he engaged in windsurfing, scuba diving, water skiing, cycling and played golf (usually in charity tournaments). He did some gardening and all the house maintenance. During our marriage we bought three period houses which he completely renovated himself. This was work that he really enjoyed because of his engineering background. He also used to hang the pub signs for Grays Breweries himself which meant climbing ladders with the signs and the tools necessary to fix them.”
[8]Over the years Mr Plampin was supplied with and wore a number of different artificial limbs and, as I have already indicated, he became very proficient in their use. At the time of his fall from the ladder Mr Plampin possessed the following four prosthetic limbs:(i) a limb supplied in May 1986 (“the 1986 prosthesis”),(ii) a slightly more recent limb, supplied in September 1988 (“the 1988 prosthesis”),(iii) the limb that he was wearing when he fell from the ladder, supplied originally in July 1995 and refurbished in July 1998 (“the 1995 prosthesis”) and(iv) his newest limb, supplied in July/August 1998 (“the 1998 prosthesis”), returned to store in November 2000 and subsequently destroyed.[9]The standard prosthetic measurement for an artificial leg is taken from the mid patella tendon (“MPT”) to the heel. By the time Mr Plampin’s various artificial legs came to be examined in 2003 the 1998 prosthesis had been destroyed and was no longer available. However, it was possible to examine and measure the remaining limbs. The MPT to heel measurement of the 1986 prosthesis was found to be 48.5 cm, that of the 1988 prosthesis was 49 cm and the 1995 prosthesis was 48 cm. However, it is to be noted that the 1995 prosthesis had been shortened when it was adjusted in January 2001 during Mr Plampin’s treatment following his fall. I will come to the precise circumstances of that adjustment in due course later in this judgment.[10]The parties’ expert witnesses (Mr Brian Wade for the Claimant and Dr Linda Marks for the Defendant) referred to these prosthetic measurements when answering the second question posed for discussion at their joint meeting, as follows: “ 2. Was the 1995 limb manufactured to the appropriate length for Mr Pamplin? We have no stated factual evidence to directly answer this question. However we have measured the 1995 prosthesis today as 48cms … We are told that on 18/01/2001 this limb was shortened by 2.2cms … This evidence would suggest that prior to shortening the limb was 50.2cms (48+2.2). When compared to the 1986 limb which has been measured as 48.5cm this would indicate that the 1995 was 1.7cms longer (50.2-48.5). Similarly, when compared against the 1988 limb, which we have measured at 49cms, this would indicate that the 1995 was 1.2cms longer (50.2-49.0). We are of the opinion that both the 1986 and 1988 limbs are well worn indicating regular usage and therefore deemed to have been comfortable. Mr Wade would additionally comment that this also implies suitable length. Dr Marks would comment and Mr Wade agrees[original underlining] that these are static prosthetic limb lengths and the only true way of checking appropriate length for an individual is to check the person wearing the said limb, having also checked other parameters that affect functional prosthetic length such as socket fit, suspension and alignment.”[bold added][11]It is clear from the clinical records (the general accuracy of which I accept) that the 1986 prosthesis was condemned on 26th June 1987 (2/356 and 2/386).[12]In April 1991 the 1988 prosthesis was returned for a full overhaul. This included the fitting of a new foot, new ankle spring, new cuff suspension and new stockings (2/402).[13]On 10th July 1995 Mr Plampin attended the Disablement Services Centre (“the Centre”) at Harold Wood Hospital where he was seen by Dr Chakrabarty and a prosthetist, Mr Geoff Brown (“Mr Brown”). An artificial limb that had been supplied in 1983 was described as being “in a dreadful state” and was condemned (2/358). The condition of the 1988 prosthesis was also found to be very poor and Dr Chakrabarty noted as follows (2/359):
“Wearing this. Liner cracking. He has had abscess over the popliteal region … liner split, foot noisy. Adjust socket, silence foot. In terrible state – would be BER [beyond economic repair] soon”
. During the same consultation, Mr Brown also noted the badly worn state of the 1988 prosthesis and the need to replace it soon, as follows (2/359): “This limb is very worn. New Q foot – cuff. Will need replacing soon”.[14]On the same day (i.e. 10th July 1995), Mr Brown measured Mr Plampin for a new artificial leg and, having done so, ordered one for him (i.e. the 1995 prosthesis). The set-up measurement on the work sheet/order recorded an MPT to heel measurement of 52 cm. I accept Mr Brown’s evidence that this was not intended to be the final measurement, but was one that left him appropriate scope to make whatever adjustments were found to be necessary at the fitting stage.[15]On 24th July 1995 Mr Plampin attended the Centre again and was fitted with his new limb (i.e. the 1995 prosthesis). The fitting process took 20 to 35 minutes and was intended to “fine tune” the limb and carry out any necessary adjustments before its final finishing with a cosmetic foam covering designed to give it a natural appearance. Although Mr Brown had no specific memory of Mr Plampin’s attendance, I accept that the fitting proceeded in accordance with Mr Brown’s usual practice, as described in paragraphs 11 and 12 of his witness statement, as follows:
“11. …. Again, in accordance with my usual practice, I would have checked the alignment, and observed the client as he walked up and down. I would have been anxious to ensure that, firstly the fit of the socket was correct and the suspension was secure. Secondly, I would have checked that the prosthesis was aligned correctly to his footwear and the length of the leg was correct. Delivery would have only taken place if both myself and the deceased were satisfied with the limb. 12. If, at the fitting stage, the deceased had any specific concerns regarding the limb, it would have been recorded in the notes. If, however, the original length had been too long, and had been adjusted at the fitting stage, this would not have been recorded in the notes, as this formed part and parcel of the usual fitting procedure.”
[16]After the fitting process had been carried out on the 24th July 1995 and any necessary adjustments had been made, both Mr Brown and Mr Plampin were satisfied that the 1995 prosthesis fitted satisfactorily, as Mr Brown duly noted, in the following terms (2/406):
“Fitting OK. Finish off. To collect 25.7.95.”
I am satisfied that the 1995 prosthesis was duly delivered to Mr Plampin on or about 25th July 1995 and that thereafter he wore it on a regular basis without any apparent problem or cause for complaint.[17]In my view, if Mr Plampin had encountered any particular difficulty or discomfort when wearing the 1995 prosthesis, he would have expressed his dissatisfaction and taken whatever action was appropriate to address the problem. However, in the three year period that followed (i.e. until July 1998), Mr Plampin made no complaint and did nothing to suggest that he was in any way dissatisfied with the 1995 prosthesis. Despite being sent letters by the Centre in July 1996 and 1997 requesting that he attend for a review, Mr Plampin did not make contact with the Centre again until 1998.[18]In fact, Mr Plampin next went to the Centre on 14th July 1998, when he attended for a review. On this occasion, the prosthetist who saw him was Mr David Smith (“Mr Smith”). It was found that the 1988 prosthesis no longer fitted. It was therefore condemned (2/386) and Mr Plampin requested that he be supplied with a second “Otto-Bock” prosthesis (the same type as the 1995 prosthesis), following Mr Smith’s recommendation to that effect. These matters were duly noted by Mr Smith as follows:
“9/88 … No Longer Fits – Request 2nd Otto Bock”
. Mr Smith also recommended that the new limb be fitted with a total shock/torque absorber, a device that allows the wearer of an artificial leg to perform twisting movements of the body without moving the stump of his limb in the socket of the prosthesis. Mr Plampin was very enthusiastic about the total shock absorber, following a walking trial in which an evaluation unit was temporarily incorporated into his 1995 prosthesis to see how he got on with it. Accordingly, the order for the new limb (i.e. the 1998 prosthesis) included a total shock absorber as part of its specification (2/376 and 2/409).[19]As for the 1995 prosthesis, it was apparent from its condition that it had been well worn and now required some attention. I am satisfied that its condition and Mr Plampin’s attitude to it were as described in Mr Smith’s detailed notes of the consultation, as follows (2/360):
“”7/95 limb in “tatty” condition, socket loose – cuff worn. Limb pitches forward. Likes Otto Bock limb. … Limb pitches forward due to change of heel height. Leg in general poor condition.”
[20]I also accept Mr Smith’s general account of the consultation, as set out in paragraphs 10 to 12 of his witness statement, as follows:
“10. Thus, subjectively, the deceased felt that the 1995 limb was in a tatty condition. He complained that the socket was loose, and the cuff was worn, and, as a result the limb was pitching forward. My objective assessment accorded with that of the deceased. I agreed that, in general, the leg was in poor condition and noted that the limb pitched forward due to a change of the deceased’s heel height. The fact that the socket was loose implied that the lining had been compressed from its original thickness of around ¼”, to around ⅛”
. The cuff was worn, and therefore the knee was not being securely held. As for the change of heel height, this suggested that the deceased had taken to wearing a shoe with a different heel to that which had been provided when the limb was fitted. I tended to advise male amputees to wear shoes with a 1” heel height. The limb generally revealed a significant degree of wear and tear, indicating regular use. 11. On reviewing the notes, I see that the 1988 limb had been condemned in 1998. It certainly no longer fitted and thus I recommended that the deceased be provided with a second Otto Bock limb with a total torque absorber, to replace the 1988 limb. The total torque absorber feature would maximise movement at the socket and would be suitable for somebody such as the deceased, who was a golfer and who need to pivot easily. 12. During the consultation, I would have fitted the Total Shock Evaluation Unit into the existing 1995 limb, and given the deceased an opportunity to carry out a walking trial. This entailed a 20 minute walk around the hospital grounds, testing the limb over as much rough terrain as possible. The notes confirm that the deceased was happy with the Unit and accordingly, I submitted a request for a new limb to include a Total Shock Absorber having obtained the deceased’s measurements.”[21]As well as using it to carry out the walking trial in order to try out the total shock absorber, the necessary repairs and adjustments to the 1995 prosthesis were carried out there and then during the same consultation (2/407). Mr Smith did not alter the pitch of the shin tube, but he did adjust the angle of the foot to deal with the heel height problem. It is important to note that the original shin tube of the 1995 prosthesis was retained and that its length was not altered in any way: see paragraph 14 of Mr Smith’s witness statement, as follows:
“Once the Evaluation Unit had been removed from the existing 1995 limb, it was re-aligned to its original modification, with new lining, a new cuff and new stockings. None of these would have affected the limb length.”
[22]I accept that, during the July 1998 consultation, Mr Smith also carried out a full dynamic assessment of Mr Plampin whilst he was wearing the refurbished 1995 prosthesis and that it was entirely satisfactory. In my judgment, if the 1995 prosthesis had been functionally too long, this would have been revealed by disturbance of Mr Plampin’s gait and this would have been observed and acted upon by both Mr Plampin and Mr Smith. I also accept Mr Smith’s evidence that, so far as concerns the proposed new artificial limb (i.e. the 1998 prosthesis), essentially his aim was to reproduce the satisfactory 1995 prosthesis, but with a total shock absorber incorporated into it. It should also be noted that the 1998 prosthesis differed from the 1995 prosthesis in that it was to incorporate “supracondylar suspension”, whereas the 1995 one had cuff suspension (i.e. whereby the limb is secured to the thigh with a strap).[23]For the purpose of providing the necessary measurements for the 1998 prosthesis, Mr Smith used the 1995 prosthesis, as set up by Mr Brown in 1995, in order to obtain the appropriate length of the shin tube. In my judgment, Mr Smith would not have adopted such an approach if his own dynamic assessment of Mr Plampin or any complaint or observation by Mr Plampin himself had suggested that the 1995 prosthesis was functionally too long.[24]On 18th August 1998 the 1998 prosthesis was delivered and fitted and Mr Plampin attended at the Centre for that purpose. At no stage during this consultation did he make reference to any problem or dissatisfaction with the 1995 prosthesis. So far as concerns the 1998 prosthesis, the only concern expressed by Mr Plampin was that the foot felt strange. This problem was successfully overcome by changing the foot supplied for a different type, as recorded in the following note by Mr Smith (2/360):
“Socket comfortable. Foot action felt strange. Likes shock absorber. Heel wedge on dynamic foot too soft causing poor gait. All other aspects OK. Foot changed from Bock Dynamic to Quantum Truestep. Then all OK.”
[25]I accept Mr Smith’s account of this consultation and the three monthly review that followed, as set out in paragraphs 15 to 17 of his witness statement, as follows: “15. The deceased attended for fitting and delivery of the new limb on 18th August 1998. The only concern expressed by the deceased was that the foot “felt strange”, which was met by switching the foot from “dynamic” to quantum model.16. As the total shock unit had only been in issue to patients for a short time, each patient using one had, at the insistence of the Rehabilitation Engineers, to complete a Risk Assessment Form. This requirement was discontinued once the units were in common use. The Risk Assessment Form [2/411-413] confirms the detail of the prosthesis; an Otto Bock shin tube with a polypropylene socket and a pelite liner with a total shock torque absorber in situ and a quantum foot. The justification for requisitioning this limb was the fact that the deceased was a golfer who experienced problems when following through his swing which would be best met by this new prosthesis with its improved rotation at socket level. I recommended that the limb undergo three monthly reviews, which was agreed by the deceased, who countersigned the risk assessment.17. The deceased did return in November 1998, and the 1998 limb was reviewed. The deceased was broadly happy with the limb but did note some pressure over the interosseous space which suggested that the socket needed adjusting as confirmed by work sheet Job No. 38266. The appointment concluded with a planned three month review. No concerns were raised at that stage with the deceased’s longstanding 1995 limb.[26]However, Mr Plampin did not attend for his next review in either February or March 1999. In June 1999, the Rehabilitation Engineering Services manager wrote to Mr Plampin and invited him to attend the Centre because he had not been seen since November 1998. A further letter was sent to Mr Plampin in March 2000 and he eventually did attend at the Centre on 13th April 2000. As can be seen from the note of his attendance (see below), the supracondylar suspension of the 1998 prosthesis did not feel secure to Mr Plampin. There was an unfortunate incident at the Royal Opera House when the 1998 prosthesis had come off and Mr Plampin had fallen as a result. Although Mrs Plampin put the occurrence of this incident towards the end of May 2000, it could have occurred somewhat earlier, possibly before the April 2000 attendance.[27]By the date Mr Plampin attended the Centre in April 2000, some 20 months had elapsed since he had been supplied and fitted with the 1998 prosthesis and 17 months had passed since it had been reviewed and its socket adjusted to relieve pressure. During that time, Mr Plampin had made no complaint about the 1995 prosthesis, although it is clear from its condition in April 2000 that he had been using it with reasonable regularity because it required minor repairs, including the replacement of the cuff, stockings and juzo (2/362 and 416).[28]However, according to Mrs Plampin, although her husband had worn the 1995 prosthesis regularly without any particular problem until 1998, he had ceased to wear it after its refurbishment in July 1998, because he had then found it to be uncomfortable. It was Mrs Plampin’s recollection that the 1995 prosthesis was thereafter left unused in the corner of their bedroom and that Mr Plampin resumed using his 1988 prosthesis (as well as the new 1998 prosthesis), only reverting to the 1995 prosthesis shortly before his accident: see paragraph 52 of Mrs Plampin’s witness statement.[29]In my judgment, Mrs Plampin cannot be right about this aspect of the matter and I do not accept that her recollection is accurate. The records quite clearly show that Mr Plampin last used the 1988 limb regularly in 1995, when it was associated with abscess formation (2/359). By July 1998, the 1988 limb no longer fitted Mr Plampin and was condemned (2/360 and 386). After its condemnation in 1998, there is no further mention of the 1988 prosthesis in any of the records. Furthermore, the only two limbs that were the subject of review in April 2000 (and therefore the only ones brought to the Centre by Mr Plampin for that purpose) were the 1998 and 1995 prostheses, i.e. the two limbs that Mr Plampin was using regularly at the time. In my view, the suggestion that Mr Plampin effectively abandoned his refurbished 1995 prosthesis and resumed the use of his non-fitting 1988 one, whilst making no complaint about the unsatisfactory nature of the 1995 prosthesis (despite having it available for inspection and dynamic assessment at the April 2000 review) does not make any sort of sense.[30]Furthermore, as I have already indicated (see paragraph 27 above), when the 1995 prosthesis was examined in April 2000, its condition showed that Mr Plampin had been wearing it with reasonable regularity and he appears to have made no complaint about its functionality, although it did require some minor repairs. I am therefore satisfied that Mrs Plampin is mistaken in her recollection and that Mr Plampin did continue to wear the 1995 prosthesis without any particular problem after its refurbishment in July 1998. With regard to the accuracy of Mrs Plampin’s evidence, I accept the force of the various points made by Mr McCullough in paragraph 9 of his written closing submissions.[31]As for the 1998 prosthesis, Mr Plampin expressed concern about the suspension’s lack of “security” and appropriate steps were taken to rectify the problem by measuring him for a new socket to provide greater security, as recorded in the following note (2/361-2):
“Patient attended … Unable to wear supracondylar [1998] limb. The fit of this limb is good but he does not like the “insecurity” of the supracondylar suspension. Cast + measured today for Iceross skt. Minor repairs to ’95 limb.”
[32]On 20th April 2000, Mr Plampin attended the Centre again – this time for “fitting of diagnostic socket … some adjustment required.” An appointment was then made for 2nd May 2000 for fitting and delivery of the 1998 prosthesis with its new socket and suspension, on which date it was found to fit well and to be comfortable to wear, as recorded in the following note (2/363):
“…Fitted well. Trimlines adjusted. Patient found this comfortable to wear. Walking well. Del. Satisfactory.”
[33]Although it was Mrs Plampin’s evidence that Mr Plampin did not use the 1998 prosthesis again after the incident at the Royal Opera House, that she never saw that particular limb again and that she did not know what had happened to it, I have come to the conclusion that this simply cannot be right. In my view, it is significant that Mrs Plampin did not know that the 1998 prosthesis had been fitted with a new socket in April/May 2000 that was very different in appearance and intended to deal with the lack of security of the original supracondylar suspension. Nor did she know that, at the same time, the 1995 prosthesis had been fitted with a new stocking, giving it a new appearance. Furthermore, it is clear that the 1998 prosthesis was still in Mr Plampin’s possession at the time of his accident and that Mrs Plampin had been present when it was subsequently returned to the Centre on 20th November 2000, as recorded in the note made by Mr Simon McPherson (“Mr McPherson”), the prosthestist who saw Mr Plampin on this occasion (2/364), as follows: “Patient attended as exp(erienced) pros(thesis user) Patient has fallen from a ladder & is in hospital with serious head injuries. Attended with escort (wife & daughter) … 7/98 limb: Patient does not know where Iceross Sleeve is & is unable to wear this limb at present (therefore) limb placed in … store …”.[34]On 31st August 2000, Mr and Mrs Pamplin went on holiday to Italy. According to Mrs Plampin, Mr Plampin said that he would take his “refurbished” limb in order to try it out and ascertain exactly what the difficulties with it were and why it was causing his back to ache (as it apparently had been and continued to do whilst on holiday): see paragraph 20 of her witness statement. In her evidence, Lorna Plampin (Mr and Mrs Plampin’s daughter) said that when she met her parents just before they went on holiday her father had described the limb in question as his “new leg”. In paragraph 5 of her witness statement, Lorna Plampin described the conversation with her father as follows:
“… I remember on one evening walking back with them from the theatre to their hotel. This is approximately a five-minute walk but I noticed that my father seemed uncomfortable. He commented that his back and hips were aching and when I asked him why he said that he was trying to wear in a new prosthesis. I encouraged him to continue wearing the new leg if he could, believing his backache to be a teething problem with the new prosthesis, which would hopefully resolve during his holiday.”
[35]Although Mrs Plampin and Lorna Pamplin were both adamant that it was the 1995 prosthesis that Mr Plampin wore whilst on holiday in Italy, I am satisfied that they were both mistaken about this aspect of the matter. As Mr McCullough observed in paragraph 11 of his written closing submissions, the 1995 prosthesis was not Mr Plampin’s “new prosthesis” nor would he have needed to wear it in. I also accept that if Mr Plampin had been keen to get to grips with a problematic 1995 prosthesis, the fact that he did not raise any problems with regard to it when attending the Centre is totally inexplicable (particularly in April 2000). It is also very difficult to understand why he should have continued to wear the problematic limb after his return home. The fact is that the 1995 prosthesis was, and had always been, entirely satisfactory – apart from the effect of normal wear and tear and the slight problem with forward pitching that had been successfully addressed by Mr Smith in July 1998.[36]I accept Mr McCullough’s submission that the probabilities are that it was the 1998 prosthesis that Mr Plampin took to Italy in order to try and “wear it in”. As Mr McCullough observed in paragraph 12 of his written closing submissions:
“- it explains why he referred to it as his “new” limb: it was; - there would have been a need to wear it in; - it is consistent with notes of difficulties with the 1998 limb; - it explains why he wanted to persist with it, because it was the latest technology, and he had been excited by its feel when first trying it; - the 1998 limb had a feature (Total Shock absorber), which was liable to be associated with backache, according to Mr Wade; - following return home, he returned to wearing the 1995 limb, with which he was comfortable and familiar.”
[37]Mr and Mrs Plampin returned to England on Wednesday 6th September 2000. On the following Sunday morning (10th September), Mr Plampin did a few jobs about the house and then he and Mrs Plampin went for a stroll around the garden. They noticed that a creeper was growing over the frame of one of their son’s bedroom windows. After lunch, Mr Plampin decided to trim back the creeper, a job that he had done many times before. As I have already indicated, it is common ground that Mr Plampin was wearing his 1995 prosthesis at the time. I accept that Mrs Plampin’s general account of what then happened, as set out in paragraphs 24 to 26 of her witness statement, is correct, as follows:
“24. … We had an extending aluminium ladder which he carried to the front of the house. The ladder had a bar at the bottom to stabilise it. He was wearing trainers, which enabled him to secure his feet on the rungs of the ladder. 25. There are three windows on the wall and the creeper was growing from the left hand side when facing it. It was a creeping hydrangea and it had grown across the left hand window and on to the wall beyond. It had not extended as far as the middle window. George began by placing the ladder to remove the creeper from the wall between the left hand and middle windows. He did this by placing the ladder immediately to the right of the French windows on the ground floor. I watched him cut back the shrub from the guttering and down by about three courses of bricks using a pair of secateurs. This took about 10 minutes and after he had done that he came down the ladder, moved it across to the left and then went up again to remove the creeper from the left hand window where it had been growing across the glass and around the window frame. He placed the ladder immediately to the left of the French windows. He then spent another ten minutes removing the creeper from around the window and from across the glass. After he had removed most of it, he spoke to me from the top of the ladder and we discussed whether or not we should remove it altogether. However we decided to have a cup of tea. He said that he would only be a couple of minutes or so more and therefore I went into the house to put the kettle on. This was about 16.00. 26. Within a couple of minutes I realised that it seemed very quiet outside. I went out again and called but there was no answer. As I went around the house I saw him lying with his left arm straight out and his face straight down on the ground immediately to the left of the French windows. In fact he was lying where the foot of the ladder had been. His amputated leg was bent at the knee at right angles. His left leg was straight. His right hand was flat on the ground. The ladder was lying across his lower back. I cannot remember what part of the ladder. I thought he was dead. I ran to him and could see no sign of life. I then ran indoors and dialled 999. The emergency services called their air support and George was taken to Colchester General Hospital.”
[38]Nobody actually saw Mr Plampin fall and, in my view, it is not possible to say precisely what happened. All that can be said with confidence is that the relative positions of Mr Plampin and the ladder after the fall indicate that:(i) the ladder did not slide outwards away from the wall with Mr Plampin at the top of the ladder; and(ii) the ladder did not move sideways with Mr Plampin falling with it. The most likely explanation is that Mr Plampin simply missed his footing as he descended the ladder, although the possibility of his having lost balance as a result of overreaching cannot be excluded and I accept the evidence of Mr Andrew Muston to that effect.[39]Mr Plampin was initially taken to Colchester General Hospital, before being transferred to Oldchurch Hospital later the same day. After investigation and treatment at Oldchurch, Mr Plampin was sent back to Colchester on 15th September where he recovered consciousness about 2 weeks later. On 9th November he was transferred to Broomfield Hospital, apparently because that hospital had a new neurological ward with better rehabilitation facilities.[40]By mid- November 2000, Mr Plampin had recovered sufficiently to begin to learn to walk again and arrangements were made for him to attend the Centre on 20th November because his artificial limb (i.e. the 1995 prosthesis) appeared to be too big. At the time this was attributed to the fact that Mr Plampin had lost a lot of weight, as recorded in the following note of his attendance (2/364):
“7/95 limb… wearing 2 socks Patient lost weight (Therefore) line socket for 1 sock & set upright in shoe.”
[41]On 18th December 2000, Mr Plampin was transferred to the Regional Neurological Rehabilitation Unit at Homerton Hospital, where he received considerable rehabilitation therapy, including physiotherapy, occupational therapy and speech therapy, together with lessons in other appropriate skills. As a result, he began to make rapid progress.[42]I accept that, as Mr Plampin began to walk again, it became more and more apparent from his gait that something appeared to be wrong with the 1995 prosthesis and, as a result, on 16th January 2001 Mrs Plampin made a further appointment for Mr Plampin to attend the Centre on 2nd February. As it happened, on the following day (17th January), the physiotherapist at Homerton Hospital telephoned Mrs Plampin and told her that he was very unhappy with the way that Mr Plampin had been walking. He went on to say that they had carried out some measurements and believed that Mr Plampin’s artificial leg was 3½ inches too long. At the suggestion of the physiotherapist, Mrs Plampin telephoned the Centre and was able to rearrange her husband’s appointment for the following day (18th January).[43]On 18th January 2001, Mr Plampin attended at the Centre, accompanied by Mrs Plampin, where he was again seen by Mr McPherson. Mr McPherson agreed that the 1995 prosthesis gave the appearance of being too long, but he emphatically rejected the suggestion that the 1995 prosthesis could be as much as 3½ inches too long (he was plainly right about that). He then proceeded to adjust the 1995 prosthesis by (inter alia) shortening it by a total of 2.2cms. In the course of his evidence, Mr McPherson accepted that Mrs Plampin’s recollection of what occurred, as set out in paragraph 42 of her witness statement, appeared to be correct, as follows:
“I took George to the appointment and we saw the fitter who we had seen on the previous occasion. He said that he remembered the previous visit and after watching George walk up and down he said that he thought he had made progress. I said that I was concerned about George’s walking and I told him that his physiotherapist thought that the prosthesis was 3½ inches too long. He replied “That’s nonsense. If that was the case he would not be able to walk at all”
. However, he then commented that he did think it looked a bit long and he therefore took the prosthesis away for about 30 minutes or so before bringing it back. He then said that it had been too long but I cannot remember by how much he said he had shortened it. He then got George to try it again. As George walked away from us between the parallel bars the fitter asked my opinion as to whether I thought it now looked alright. I said I thought it still looked too long. He therefore fitted a special shoe to George’s left leg and then said that he needed to take a little bit more off the length of the prosthesis. He then took it away for a further 15 minutes or so. George then tried it again and the fitter then said that he thought it was fine. I certainly thought that George looked a lot “easier” when he walked.”[44]Mr McPherson’s initial assessment had been that the 1995 prosthesis needed to be shortened by 3cms: see his note of the attendance (2/364), which is in the following terms:
“… Physio phoned & said that limb was 3.5 inches long. C/E after standing on limb (wearing) slipper it was decided to shorten limb 3cm. Adjust cuff sus(pension).”
However, I accept Mr McPherson’s evidence that, in the event, the limb was shortened by a total of 2.2cms, as recorded in the worksheet (2/424). I reject the suggestion that he shortened it by 3cms. I also accept his evidence that the reason that the limb appeared to be too long was essentially a neurological result of Mr Plampin’s brain injury: see paragraphs 10 and 11 of his witness statement, as follows:
“10. When I reviewed the deceased, I agreed that the limb should be shortened by 3 cms, but I see from the worksheet that it was actually adjusted by 2.2 cms. The fact that this adjustment was indicated does not mean that the limb was too long, but simply reflects the fact that, as a result of sustaining damage, the deceased’s brain could not send appropriate signals to the nerve impulses that govern walking, and so the deceased dragged rather than bent his knee when walking. He could not lift his leg to clear the ground. It is fairly routine practice to shorten the limb during the rehabilitation process so that the client can swing the leg through when walking, rather than raising and bending it in the normal manner. The limb was not too long in any absolute sense. 11. As far as I was concerned, this adjustment had satisfactorily dealt with the issue. However, I saw the deceased again on 2nd February 2001 together with the physiotherapist from DSC, Ann Roberts, and a physiotherapist from the Homerton Hospital. Again the physiotherapist was concerned by the leg length. At that appointment, I did not make any adjustments to the limb length, as I did not consider any further adjustment was required.”
[45]As I have already indicated, on 17th February 2001, 15 days after his last attendance at the Centre, Mr Plampin died at home as the result of a ruptured aorta.[46]Conclusions on Liability. Since the 1995 prosthesis was shortened by a total of 2.2cms when Mr McPherson carried out his adjustments to it in January 2001, it follows that it was 50.2cms long when fitted and delivered in 1995. In the course of his final submissions, Mr Matthews relied heavily on the difference in length between the 1995 prosthesis and the 1986 and 1988 prostheses (differences of 1.7cms and 1.2cms respectively) in support of his submission that the 1995 prosthesis was too long. However, I am wholly unpersuaded that it was too long in fact. In my judgment, in the light of my findings of fact, it is perfectly clear that the 1995 prosthesis was not too long and that its length was entirely appropriate at all times up until Mr Plampin resumed walking again after having suffered the injuries caused by his fall from the ladder.[47]For the reasons already given, I am satisfied that the 1995 prosthesis was, at all material times, functionally entirely satisfactory when judged by what the experts agreed was the only true way of checking the appropriate length for an individual, namely “to check the person wearing the limb, having checked other parameters that affect functional prosthetic length such as socket fit, suspension and alignment” (see paragraph 10 above).[48]I accept Mr McCullough’s submission that the records are decisive. As he observed, it is simply impossible to regard the records as consistent with the 1995 prosthesis being functionally too long so as to regard it as causing a foreseeable risk of injury. Not only did Mr Plampin (who was a very experienced prosthesis user) never make any complaint of consequence about the functionality of the 1995 prosthesis, despite wearing it regularly from July 1995 onwards, but he underwent at least two sessions of dynamic assessment whilst wearing it, carried out by experienced prosthetists in 1995 and 1998. On each occasion, the 1995 prosthesis was found to be entirely satisfactory and therefore of an appropriate length for Mr Plampin at the time. It is important to bear in mind that the assessment of leg length is a dynamic and interactive process between patient and prosthetist: see Dr Marks’ description at paragraph 58 of her report, as follows:
“… the patient will be asked to stand and the static length and alignment of the limb will be checked. This is usually done by a combination of feel and observation, although some prosthetists will use tape measures or rarely a spirit level. At this point the patient is asked to walk between the parallel bars and asked how the limb feels. The prosthetist will also be checking for movement within the socket and dynamic alignment of the limb as well as assessing the person’s gait. Adjustments may or may not be required on the basis of feedback and comments from the amputee and findings of the prosthetist. This process will continue until both amputee and prosthetist are satisfied.”
[49]As Mr McCullough observed, if both the prosthetist and the patient are happy with the artificial leg after completion of the process of dynamic assessment, then the leg is the correct length for the patient and such was the position in this case. Any significant discrepancy will be readily apparent to the prosthetist and will also become apparent to the patient very soon after the appointment in the unlikely event that he/she has become confused in some way by the fitting process. I also accept Mr McCullough’s submission that there are also minor variables that are relevant to a discrepancy of the range indicated by the measurements in this case, i.e. the number of socks that are used and the tightness of the cuff suspension.[50]Of course, my finding of fact that the 1995 prosthesis was not too long is fatal to this claim, which must therefore fail. In those circumstances, it is not necessary for me to go on and consider the circumstances and cause of Mr Plampin’s fall from the ladder in any detail, even if that were possible. Suffice it to say that I agree with Mr McCullough’s submission that it is impossible to draw any reliable conclusion as to how the accident occurred for the reasons given in paragraph 27 of his written closing submissions.[51]Conclusion. For all the foregoing reasons, I have come to the firm conclusion that this action must be and is hereby dismissed.