Miller v Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB)

Case No HQ12X03344

[2014] EWHC 3772 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14 November 2014

Before

HIS HONOUR JUDGE CURRAN QC

(SITTING AS A JUDGE OF THE HIGH COURT)

Between

MARION MILLERClaimant

IMPERIAL COLLEGE HEALTHCAREDefendant

NHS TRUSTDefendant

Christopher Hough (instructed by Messrs Leigh Day) for Claimant

Matthew Barnes (instructed by Messrs Capsticks) for Defendant

Hearing Hearing dates: 22-25 July 2014

Judgment

His Honour Judge Curran QC :

Introduction

[1]This is an assessment of damages in an action brought by the Claimant, Mrs Marion Miller, against the defendant NHS Trust for personal injuries caused by clinical negligence in their treatment of her. Liability has been admitted. The negligent treatment resulted in her suffering injuries which eventually made it necessary for an amputation of her left leg to be performed. Two surgical operations proved to be necessary as the first, an amputation below the knee, was not successful, and a further above-knee amputation was therefore performed.

[2]Mrs Miller was born on the 3rd October 1943, and was aged 63 when her leg was amputated. She is now 70. She grew up in Greenock in Scotland and was married in 1965. She and her husband moved to London in 1973. They later separated and were divorced in 1988. Her former husband died at about the time she was admitted to hospital, and she was unable to attend his funeral.

[3]Mrs Miller has two grown-up children, a son and a daughter: Robert and Lesley. Robert has three children. He is a freelance film editor and lives with his family in Barnes. Lesley has a daughter, Lauren, and has a flat in North Acton, although she is regularly away from London for work. Mrs Miller has other members of her family who live still in Scotland.

[4]When she first attended the defendant Trust’s hospital on 28th January 2007, she had been complaining of increasing pain in her leg, which was cold, and blue and white in appearance. She lacked pulses in the ankle and foot. It is now admitted that she required urgent vascular review, administration of heparin, and surgery. In fact, Mrs Miller was discharged. By the time she returned to the hospital a few days later, her condition had deteriorated to the extent that the opportunity for successful treatment had been lost.

[5]It is admitted by the defendant Trust that the above-knee amputation and its very severe consequences could have been avoided had they offered competent care when Mrs Miller attended on the 28th January 2007. On 30 January 2007, she was urgently referred to Charing Cross Hospital where she was diagnosed with an acutely ischaemic left leg. By that point, her whole foot was blue and the pain was unbearable. The surgeons tried to save her leg by performing an embolectomy and a by-pass, but these were unsuccessful. The below-knee amputation was performed on 1 February 2007 and the above-knee amputation on 13 February 2007.

[6]The first few weeks after surgery were, she said, “a bit of a blur” as she was on so much medication, but she remembers feeling shocked and devastated about what was happening to her. Immediately after the first amputation she was kept in a recovery room for a few days as the ward was infected with MRSA. She was then moved to an acute vascular ward until her second amputation on 13 February 2007. After that operation she went back to the same ward where she stayed for about five weeks. She was, she says, “in terrible pain” during this time and suffered from bad phantom pain and stump pain. She had the benefit of a morphine pump and also had sub-cutaneous salicylate injections to help with the phantom pain. From the time she was moved to the acute vascular ward, she had regular physiotherapy and vascular review. Nevertheless, the degree of phantom pain and stump pain required the attention of the pain management team. She remembered that the stump was very swollen “... as there was lots of scar tissue and there were staples all the way around the bottom of it.”

[7]Mrs Miller was transferred to the rehabilitation ward after about 5 weeks and stayed there until her discharge on 16 April 2007. Quite early on, a trial was made of a ‘foam leg’ so that she could begin to use a prosthesis. She attended the limb fitting service regularly, and she found that she was in fact soon able to use a prosthetic leg. She was determined to get back on her feet as quickly as possible and used the amputee gym as much as she could. She found the task “really tough” and, whilst there were times when she felt as though she “wasn’t getting anywhere,” she persevered. I accept her evidence entirely (it was unchallenged on this aspect of the case) and I find as a fact that she used all the determination, both mental and physical, which is humanly possible to overcome the formidable problems so disastrous an event as an above-knee amputation involves. I have no doubt that all that took a physical and mental toll. No doubt because she was so fit a woman when the disaster occurred she was able to make a much better recovery than would otherwise have been possible. By the time Mrs Miller was discharged home she was “fairly mobile on the leg” which is in itself remarkable. She had spent about two-and-a-half months as an in-patient. GENERAL DAMAGES Principles to be followed in assessment

GENERAL DAMAGES

[8]Counsel for the Claimant, Mr Hough, relies upon the well-known dictum of Lord Blackburn in Livingstone v Reynolds Coal Company

[1890] 5 AC 25

as the relevant principle for the court to apply in assessing the quantum of damages in this case:

“Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages you should as nearly as possible get that sum of money which will put the party that has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation….”

[9]Counsel for the Claimant submits that in respect of awards of damages the provision of past and future care, and for equipment, aids and appliances, the court must apply the test of ‘reasonableness’: the Claimant is entitled to damages to meet her reasonable requirements or reasonable needs arising from her injuries. There may be a range of reasonable options to meet the Claimant’s needs, and the most reasonable option may not be the least expensive one available. It is common ground that the defendant Trust could not be required to pay for an option chosen by the Claimant if that choice was unreasonable and another less expensive solution was reasonable.

[10]A very helpful restatement of the proper approach to be taken is to be found at paragraph 94 in the judgment of Lloyd Jones J, as he then was, in A v Powys Health Board

[2007] EWHC 2996

“The basis of assessment is the test of reasonableness as stated in Rialis v Mitchell, (Court of Appeal, 6th July 1984) and Sowden v Lodge[2005] 1 WLR 2129. The Claimant is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether, objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the Claimant is reasonable it is no answer for the defendant to point to cheaper treatment which is also reasonable. Rialis and Sowden were concerned with the appropriate care regime. However, the principles stated in those cases apply equally to the assessment of damages in respect of aids and equipment. In determining what is required to meet the Claimant's reasonable needs it is necessary to make findings as to the nature and extent of the Claimant's needs and then to consider whether what is proposed by the Claimant is reasonable having regard to those needs. (Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), per Teare J. at para. 59; Taylor v Chesworth and MIB[2007] EWHC 1001 (QB), per Ramsay J. at para 84.)”

The expert witnesses

[11]The expert witnesses relied upon by each side are the medically-qualified rehabilitation experts Dr Sooriakumaran, called by the Claimant, and Prof. Hanspal, who was called by the defendant Trust. There was a significant measure of agreement between the doctors on most of the points upon which their opinions were sought. To the extent that they differed in their views, I preferred the opinion of Dr Sooriakumaran to that of Professor Hanspal. I set out my reasons for this preference in detail below, after reviewing the cross-examination of each of them. In the very briefest terms at this point I would summarise it by saying that whilst counsel for the defendant Trust made perfectly proper criticisms of Dr Sooriakumaran in respect of a discrepancy between two different reports which he had given, Dr Sooriakumaran nevertheless seemed to me to be quite uninfluenced by any motive other than to inform the court of his objective up-to-date view. Prof. Hanspal, by contrast, gave me the impression at times that he was almost arguing the case for the defendant Trust rather than giving a wholly dispassionate objective opinion. He very properly made some frank concessions during cross-examination, but the overall tenor of his view was one of faint disapproval of the Claimant’s choice of the most expensive form of prosthesis, combined with concern over the cost to the Trust. Moreover, his pessimism as to the Claimant’s future mobility, when tested in cross-examination, had no real clinical substance, as a reading of some lengthy extracts from the transcript of his evidence, set out below, will demonstrate. That was a matter which was of considerable significance when addressing one of the major heads of claim, namely the cost of future prostheses.

[12]The care experts, Ms Saltese and Ms Wright, were both entirely straightforward witnesses whose views varied only in terms of emphasis. I shall indicate my reasons for the conclusions which I have reached on such differences as arose between them, when I deal with the issues of past and future care.

[13]The Claimant also called a physiotherapist Ms Barsby, whose evidence I found helpful. Accommodation experts produced figures which were agreed by the parties for suitable accommodation in various locations for the Claimant.

Pain, suffering and loss of amenity

[14]The general aspect of the case is put by counsel for the Claimant as follows:

“Some factors are towards the top end of the bracket, others towards the lower end.”

The particular matters he relies upon are as follows. i) The initial surgery was for a below-knee amputation (on the 1st February 2007) but, as a result of a delay in wound healing, she required revision surgery amputating the leg above the knee on the 13th February 2007. Thus two major operations under general anaesthetic are factors to be borne in mind. ii) In all, the Claimant was in an in-patient for slightly more than two months. During that time she suffered very severe pain for prolonged periods. She also suffered severe psychological effects. iii) On her discharge from Hospital, in April 2007, the Claimant used a prosthesis, but she was partly dependent on crutches and wheelchair. iv) For some time, she needed help with every aspect of her life (by way of example, counsel said that her daughter and granddaughter helped her use a commode), but she has now returned to substantial, but not complete, independence of life. v) The Claimant’s mobility has improved considerably but she suffers occasional episodes of skin breakdown, which prevent her from using her prosthesis. At such times, she has and will continue to need to use a wheelchair. vi) The Claimant suffers phantom limb pain, and intermittent problems with her stump and skin problems. vii) She has had repeated falls. She suffers pain when walking any distance. After about 100 metres, she is tired. viii) She is slow in movement, which has led to urinary incontinence when she is unable to access the lavatory quickly enough. She keeps a commode in the dining room as an emergency lavatory. ix) Her pre-existing back pain has been exacerbated by the slight difference in leg length and by the limping she faces using a prosthetic leg. x) She needs some help with domestic chores, especially hoovering. xi) Despite her remarkable stoicism, determination and ability to return to her previous life, Mrs Miller has required counselling and anti-depressants. xii) The prognosis is for increasing use of crutches and a wheelchair as she gets older.

[15]The Judicial College Guidelines give a range of damages for an above-knee amputation of between £77,000 and £101,000. By the end of December 2013, this would have increased by 2.7 per cent to allow for inflation, which gives a range of £79,079-£103,727. The Guidelines list the factors which determine where a particular case should fall within this range, as follows: i) The level of the amputation: the residual limb measures 30.5cm from the greater trochanter to the terminal end with a clearance of 11cm to the knee axis. There is a 15cm scar. ii) The severity of any phantom pains. It is fair to describe the evidence as to these as neither pointing to the most severe level of pain nor to the least severe. It is certainly more than minimal. iii) Associated psychological problems. Again, despite the stoicism shown by the Claimant, these are certainly far from minimal. iv) The success of any prosthesis. The last 7 years have had a number of problems, which have lessened as the specification of the prosthesis has improved. Despite recognising the difficulty she faced with knees, there were NHS funding restraints which has prevented buying more appropriate and effective prostheses. The first prosthesis has a suspension belt which Mrs Miller “hated”. She has “lost count” of the number of sockets she has been provided with. The future is described as likely to be “difficult” with increased reliance on wheelchairs. v) Any side-effects such as backache: Dr Sooriakumaran notes that the back pain has become more frequent. Walking with a trans-femoral prosthesis is known to aggravate underlying spine pathology. vi) The risk of developing osteoarthritis in the remaining joints. Professor Hanspal considered it unlikely that Mrs Miller would develop arthritis, but she might experience pain requiring non-surgical treatment. The rehabilitation experts agree that Mrs Miller will require increasing use of a wheelchair as she gets older.

The significance of age as a factor: Nutbrown v. Sheffield Health Authority

[16]Counsel for the defendant Trust, Mr Barnes, at the forefront of his submissions took a point on the age of the Claimant. He invited my attention to the case of Nutbrown v. Sheffield Health Authority [1993] 4 Med. L.R. 187, Q.B.D. (Potts J). The principle to be derived from that case, counsel submits, is that in assessing general damages for pain, suffering, and loss of amenity the court should take as a starting point the appropriate award for a man or woman “in the prime of life” (which Potts J in that case set at the age of 30). The court should then reduce the award for any Claimant who was not in the prime of life. In Nutbrown the Claimant was aged 72 at the time of the cause of action, 76 at trial, and his life expectancy was limited to 6 years post-trial. The learned judge halved the award he would have made to someone in his prime, taking into account, inter alia, the age of the Claimant. (In another case, Laycock v Wm Morrisson [1991] CLY 1381 His Hon. Judge Cotton discounted an award to a 79-year old by one-third on account of his age).

[17]It is, however, clear from the terms of the judgment in Nutbrown that age was only one of the factors which led Potts J to reduce what would otherwise have been the appropriate sum for damages for pain, suffering, and loss of amenity. At page 188 in the report he made reference to the following matters:

“As a result of the brain damage sustained in consequence of the defendant’s negligence all aspects of Mr Nutbrown’s cognitive function have been catastrophically affected. He cannot cope with even the simplest arithmetic. He is frequently confused and disorientated. He can… just about manage to live alone near his daughter.”

The learned judge then made reference to the question of “the plaintiff’s insight” into his condition, which was limited, and which he described as “important”. He said that that was one of the matters which affected a deduction from the prime-of-life level of award. He continued, “What is the appropriate reduction? It is not an easy task that the court is called upon to carry out. Precision, in my judgment, in the nature of things, is out of the question. One must look at all the circumstances of the case and, in particular, consider the plaintiff as he was before his injury and as he has become, and, of course, have regard throughout to his age at the time of the injury, the time of the trial, and his life expectancy. In this case I place great emphasis on the extent of the plaintiff’s disability. But I do not overlook, and give full weight to, what has been said about the plaintiff’s limited insight into his condition. Against that [counsel for the plaintiff] makes the point, which, in my view, is a good point, that the court must bear in mind that at the age of 70 this man, in apparent good health, was deprived of the enjoyment of his last years. That, in my judgment, is a factor that sounds in damages and I take it into account.”

[18]The suggestion (if that is what it was) that Nutbrown is authority for a proposition that an award of damages for a 72-year old should be approaching half that which would have been appropriate for a 30-year old, does not bear detailed examination. It is perfectly clear that Potts J took into account in that case in particular the plaintiff’s limited life expectancy and his limited insight into his condition. The facts of that case were very different from the facts of the instant case.

[19]Moreover, there are some observations made by the authors of “Personal Injury Schedules” (Bloomsbury Professional) 3rd edition, at paragraphs [D104]ff. which seem to have some relevance to the point of principle for which counsel for the defendant Trust contends. Having made reference to the case of Nutbrown, it is submitted by the authors that aftercalculating the figure appropriate for a man in the prime of life, the next step is to reduce that figure in light of all the particular circumstances of the case. In particular, judges should give consideration to the state of health of the Claimant before the accident. They make reference to the case of Frank v Cox (1967) 111 Sol. Jo. 670, in which the plaintiff was a man of 77 who had suffered a hip injury. The same injury in a younger man could have been remedied by surgery. For various reasons that was not a course open to the plaintiff. Sachs LJ said, “I take the view myself that when one has a person in advancing years, in some respects impairment of movement may perhaps be more serious than it is with a younger person. It is true… that the plaintiff has not got as many years before him through which he has to live with this discomfort, pain and impairment of movement. But it is important to bear in mind that as one advances in life one’s pleasures and activities particularly do become more limited, and any substantial impairment of the limited amount of activity which a person can undertake, in my view, becomes all the more serious on that account.”

[20]The authors of Personal Injury Schedules then make the following observation at [D 107] “… this may have particular relevance where a Claimant is at or nearing retirement age at the time of injury”. They explain that the Claimant may have been specifically looking forward to “taking life easy pursuing his or her leisure interest”. For example, in Spencer v ARCO [1996] CLY 2240 the Claimant had been retired for some years, and the judge found that the last few years of his life had been considerably blighted by reason of his injuries. Further, in Sutton v Ling [1999] CLY1550 the Claimant was aged 58 at the date she suffered a road traffic accident, and 61 at the date of trial. She suffered a whiplash injury to her neck, together with scalp muscle contraction, headaches, an adjustment disorder and an acute stress reaction. Her ability to sail, to sew, to decorate, garden, and keep house had been significantly impaired. The judge consequently held that the Claimant’s quality of retirement had been adversely affected by reason of her injuries, and took this into account when assessing the appropriate award for pain, suffering, and loss of amenity.

[21]At paragraph [D108] the authors suggest that the argument concerning age is “double edged”. Young Claimants may argue that they have a greater length of time to suffer with the effects of the injury, and can also put forward their previous active lifestyle and show much how they have lost. “[A]n alternative argument” (they say) can be made by the elderly Claimant. He or she is less resilient than the young and so suffers the relevant injury for longer, or perhaps for life. Moreover, the older Claimant may have had extensive plans for retirement. (Alternatively, I would add, as in this case may have had very real plans to continue working in employment which she enjoyed, and which gave her real satisfaction and fulfilment, in agreeable West End surroundings, far beyond normal retirement age). “These valuable years have now been blighted by injury, and an award can be increased due to the Claimant’s limited prospects of any social interaction. The very fact that the Claimant had only a limited ability to perform hobbies can be very telling if even that has now been removed. Therefore, Potts J’s approach in Nutbrown v. Sheffield Health Authority of assessing a man in the prime of his life and then deducting for particular circumstances, may also apply in the opposite direction. If a circumstance means a man beyond the prime of his life suffers more, then the award should be increased.” [Ibid.]

[22]Mr Barnes then submitted that I should take account of the fact that the amputation in this case was not at so high a point that no prosthesis could possibly be fitted. Secondly, that there were no enduring psychological problems. Thirdly, that on all the evidence the most recent prosthetic aid used by the Claimant had had an excellent outcome (that is a point which has a tension of its own, since it is the defendant Trust’s case that the most recent prosthesis is unnecessarily and unreasonably expensive: I shall deal with that as a separate head of claim below). Fourthly, there was no evidence of osteoarthritis. Thus, the Claimant’s case was only aggravated (in terms of the Judicial College’s aggravating factors) by reason of backache. On that basis, he submitted, taking account of the Claimant’s age, the award for pain and suffering and loss of amenity should be discounted down to the point of £55,000, which, he submitted, was “comfortably within Nutbrown”.

[23]In attempting to draw together all the relevant threads in this assessment, I make the following findings:(1) The Claimant’s damages for pain, suffering, and loss of amenity are to be assessed having regard to her age at the date of the breach of duty, namely when she was 63, but as she said in her witness statement she “felt ten years younger”.

(2) I accept the Claimant’s evidence that she was then a fit, healthy, lively woman who enjoyed work and an active social and family life. She was physically in very good condition. She swam and visited the gym on a regular basis. Although she did not use the expression, she seems to have regarded herself, understandably, as being little past the prime of life.

(3) Mrs Miller was at all material times, and remains, a much-valued account manager by the Givenchy Perfume & Cosmetics department at John Lewis plc. She enjoys work, finds it stimulating, and regarded her ability to continue working as an important means of maintaining a reasonable income. Her employment was not pensionable. Quite remarkably, despite her disability, she continues at the age of 70, to work for 2 days a week. I am entirely satisfied that, had she not lost her leg as a result of the negligence of the defendant Trust, she would have worked for at least four days a week.

(4) The Claimant’s life expectancy is virtually unchanged.

(5) Whilst she has complete insight into her condition and has coped with the psychological effects of that admirably, her mental fortitude should not reduce the weight such effects must be given in the overall balance. From all that I saw, heard and read, I formed the clear impression that the Claimant is a lively out-going woman, who takes considerable pride in her appearance. The impact of so seriously disfiguring an injury upon her cannot be under-estimated.

(6) The injury caused by the defendant Trust has jeopardised all Mrs Miller’s plans for the future. At a critical time in her life she has been forced to suffer a massive physical and mental blow which affects her basic mobility, her independence and self-respect, her confidence, her social life and her ability to continue to work for as long as she would have wished. She will suffer the consequences of her injury for life.

(7) Whilst a younger person might have developed the physical resources to cope, even better than Mrs Miller has, with walking with a prosthesis, she was confronted with the challenge at a time in life when her physical resources were beginning to wane with age.

[24]I do not entirely accept the submissions, attractively made as they were, on behalf of the defendant Trust by Mr Barnes, in respect of discount for age on the basis of the case of Nutbrown. Quite apart from the obvious distinctions which may be drawn between that case and this case on the facts, particularly on the relevant ages and life expectancies, to make a deduction in the quantum of damages to the extent that Mr Barnes submits would be appropriate would be to pay insufficient regard to the seven particular factors mentioned in the preceding paragraph. I do not think that would be right.

[25]The court must make an award which is fair and just for a Claimant who was young for her years, fit and active, and intending to work for as long as she could. In very many respects the Claimant is quite different from the plaintiff in Nutbrown. Unlike him, the age at which she was eligible for an award of damages for pain and suffering and loss of amenity is 63. For anyone at that age to have the level of physical fitness, agility and mobility, which I find as a fact the Claimant had, was a very positive advantage, and she has been deprived of much of that as a result of the defendant’s negligence. I therefore think that the matters, other than age, which informed the decision of Potts J in Nutbrown are of very limited applicability in the instant case.

[26]Mr Hough, for the Claimant, made the valid point that the Judicial College do not suggest that there should a range of discounted awards on the basis of age. Some modification should be made of the overall award which might be applicable in the case of somebody aged 30 or so with identical injuries and consequential effects, but there is no justification for a discount here which approaches the level apparently applied in Nutbrown. What Steyn LJ (as he then was) referred to as “mechanical jurisprudence” was not to be encouraged in the field of liability in tort (see Mills v. Barnsley Metropolitan Borough Council [1992] P.I.Q.R. P291). Arithmetical jurisprudence in the assessment of quantum by the making of set discounts for age has no foundation in case law. It is inappropriate, in my view, for the reasons I have given and for those articulated by the authors of Personal Injury Schedules. Indeed, in Nutbrown itself Potts J did not give any indication that he had applied any particular percentage as a discount for age, and made it quite clear that he was taking an overall view. In fairness, nor did counsel for the defendant Trust submit that any particular percentage discount should be made.

[27]Bearing those matters in mind, and standing back and looking at the case with some experience of serious personal injury cases, I think that an award of damages for pain, suffering, and loss of amenity of only £55,000, as contended for by Mr Barnes, would be wholly unrealistic. Taking an overall view in this case, upon the basis that the case, bad though it is, does not reach the uppermost limit of the range, and making some modification for age, it seems to me that a figure of £87,500 is appropriate for general damages for pain, suffering, and loss of amenity.

Past care

[28]This is claimed at £16,182: the defendant Trust concedes £9,142 after making a 33 per cent discount. The care experts have assessed the number of hours of care provided, and have agreed a “mid-point”. The updated schedule reflects the care experts’ agreement. The only issues are(a) the appropriate rates, and

(b) the appropriate percentage discount to reflect the fact that there are no tax or national insurance liabilities, or costs such as travelling expenses, where members of the family provide care and live in the same house or very close by. The point is made by the defendant Trust that whilst the Claimant required a great deal of care and attention immediately after her discharge from hospital, “within months” she was largely coping on her own, with only limited input from her family.

[29]The evidence of what was in fact done is to be found in the witness statement of the Claimant. The Claimant has the good fortune to have a devoted family and friends. When she was in hospital her son came in to see her every day. He was only allowed to stay for about half-an-hour or so at a time when she was in recovery, but otherwise he would visit for two or three hours every day. He is a freelance film editor and was working on a project at the time. However, she said, “He had to walk away from a three-week contract so that he could look after me. He had about two weeks off work altogether and when he went back to work he would visit me in the evenings rather than during the day.”

[30]The Claimant’s daughter Lesley had left, just a few weeks before the Claimant was admitted to hospital, on a three month trip around India with a friend. Mrs Miller’s granddaughter Lauren was staying with her at the flat in Ealing. Lesley came back as soon as she could and arrived in the UK in the first week of February 2007. Lauren had to stay with Robert until Lesley got back. Lesley visited Mrs Miller in hospital every day for about three or four hours until she was discharged home. Mrs Miller said, “… she helped me out a lot, especially when I needed assistance in the bathroom. From about March 2008, she would take me out in a wheelchair on the Fulham Palace Road to cafés for about an hour or so.”

[31]Lauren also visited every few days after school for two or three hours at a time. A great friend of Mrs Miller’s, who is a nurse, also visited her most days: she said she had been “a fantastic support”. She went on to say that, “Lesley and Lauren came to live with me for around 10 days after I was discharged so that they could look after me and Robert was next door so he was able to look after me as well. For about the first two weeks I needed somebody to be there for me 24 hours a day. Lesley and Lauren did all of the cooking, cleaning, housework and helped me to get around the house. Lesley was doing a few shifts at the local theatre and Lauren was at school during the day but there was always somebody with me, and Robert would come over if both Lesley and Lauren were out.”

[32]Before her admission to hospital, Mrs Miller had done all her own housework and did not need a cleaner. The amputation obviously changed all that. Initially, the local authority agreed to fund a ‘home-help’ who came in once a week for 1½ hours and did all the housework. The home-help stayed for about two years and the council then withdrew her. Mrs Miller then had a cleaner once a week for about 1½ hours, at a cost of £20 a week. The single task Mrs Miller has found particularly difficult as a result of the amputation is hoovering. She still cannot hoover the stairs.

[33]After discharge from hospital, Mrs Miller continued to go to the amputee gym at the Charing Cross Hospital a few times a week. She knew that “… it was going to be the thing that would get me back on her feet and independent again”. She also went to various limb fitting appointments and outpatient appointments at Charing Cross Hospital. Each time, Lesley or Robert would have to drive her there and back. By June 2007, she was able to drive and this made a huge difference to her independence, both physically and psychologically. She was able to drive from the house to the gym to the limb fitting service and this made life much easier as she did not need to rely on Robert and Lesley. Later in 2007, Lesley started work on a North Sea oil-rig. She spends two weeks at sea and then comes home for two weeks. Mrs Miller said that, “When Lesley was away, Lauren would stay with me in the flat and help me out. She would cook me meals, do the housework, take me out in the wheelchair to the shops and generally keep me company. I found it very difficult being stuck at home on my own and Lauren was a brilliant support. In 2009, when Lauren turned 17, she decided to move out of my house and go and live in her mother’s flat in Acton. She still came to stay with me once a week. She is generally around and about at my house a lot.”

Aggregate Rates

[34]Counsel for the Claimant submits that in calculating the appropriate award for care provided by family and friends the test to be applied is to ask what is a “proper recompense for the services provided” by members of Mrs Miller’s family: see Evans v Pontypridd Roofing Ltd

[2003] EWCA Civ 1657

. Since care was provided as and when required, regardless of day or night and at week-ends as well as on week-days, Mr Hough contends that“aggregate rates” are appropriate. In some cases, where week-day care is provided between 9 am and 5 pm, “base rates” may be appropriate. In other cases where care is provided at weekends, on Bank Holidays, before or after work, or at other so-called “anti-social” hours, the court should apply aggregate rates. The Claimant’s children, grandchild, and friends have all provided considerable care, at all hours of the day and night, even moving in with Mrs Miller to be on hand. This, it is submitted, justifies application of aggregate rates.

[35]Evidence on this was given by Alison Saltrese, the care expert instructed on behalf of the Claimant, and by Penny Wright, the care expert instructed on behalf of the defendant Trust. To an extent they both dealt with future care needs as well as past care. In her report Alison Saltrese said at paragraph 4.10.2:

“Care rates used for gratuitous care are an aggregate rate. The aggregate is calculated to reflect gratuitous care provided throughout the week. Different rates are paid during standard and ‘antisocial hours’ representing interventions during evenings and week-ends.”

[36]At paragraph 4.11.1 she said, “Clearly the initial period following a severe injury is extremely distressing for all concerned, and it is natural that families who have a close and supportive relationship will want to spend as much time as possible with their relatives. As Mrs Miller progressed through her recovery, the intensity of the support needed from family and friends is likely to have diminished. I consider that a realistic approach would be to allow a contribution. For psychological support as well as practical support, such as informing others about the situation and bringing in items for Mrs Miller.”

[37]At paragraph 4.11.5 Ms Saltrese said:

“Mrs Miller explained that her family had identified a suitable property next door to their own home was available for rent. They negotiated on Mrs Miller’s behalf and she was subsequently discharged to her current address. The property is not ideal for somebody who has mobility impairment. Access to the house is via a substantial step, there is no ground floor lavatory…. In addition, the width of the hall and doorways on the ground floor are narrow at this makes mobilising in a wheelchair more difficult. 4.11.6 Mrs Miller confirmed that she worked exceptionally hard with her rehabilitation team…. On 16th of April 2007, she was discharged home using her artificial limb. Mrs Miller stated that on discharge to her new home, her daughter and granddaughter spent the first few weeks living with her. They provided emotional support, responded to problems and difficulties, and provided practical assistance as and when required. I consider that as Mrs Miller increased her confidence and ability, … support and assistance would have reduced. ….”

[38]When she was cross-examined, the evidence was as follows:

“Q You refer to “aggregate” rates? A Yes. Q But you give no reason for applying aggregate rates? A The aggregate rate is based on when the care is provided. It is very clear in Mrs Miller’s case that her family provided care in evenings and at week-ends. Q You haven’t given that reason in your report? A I believe I have – see 4.11.6 – and in Mrs Miller’s witness statement said she needed care 24 hrs a day. I can’t agree I have not provided a reason – see the paragraph where I mention the family living in. … for example, Mrs Miller has experienced falls once she had such a bad fall that her daughter in law heard the noise from next door and was able to come to her assistance. The Claimant was unable to help herself because she was too shocked. Falls like that don’t occur just between 9 and 5, and although Mrs Miller is very, very competent as an amputee, the time and days when she needs assistance cannot be nailed down to specific times in any given week. Q Is it your approach to use the aggregate rate in all these cases? [Counsel made it clear that he was suggesting the witness used such a rate in all personal injury cases in which she reported, and not simply in amputation cases.] A No, I don’t. I don’t think it’s just risk of falls – an amputee’s confidence goes. They need fetching and carrying and ad hoc support outside normal social hours. I use the rate I think appropriate to the particular case in all personal injury cases whether I report for the Claimant or the Defendant. Here the Claimant needs help, for example, in emptying her commode. She needs emotional assistance. If she is not using her prosthesis (when the stump is inflamed for example) she needs someone to carry her, or helping with crutches. The nature of her need is not predictable. I don’t think it can be done in normal social hours. The aggregate rate is an average of all the hours over the course of a week – only 55 out of 168 hrs are ‘sociable’ [as distinct from ‘anti-social’] hours. It is when the support is delivered that matters.”

Q But you give no reason for applying aggregate rates?

Q You haven’t given that reason in your report?

[39]Ms Wright’s evidence on this issue was as follows:

“Whether aggregate rates are appropriate really depends on the number of hours’ care given and when. In this case I might have used day aggregate rate for the initial period but I think basic rate more appropriate. Q [The witness was invited to look at the Claimant’s witness statement concerning past care.] Her son gave up work to look after her, for example – wouldn’t you agree that aggregate rates are fair in those circumstances? A No she was not requiring night-time care, she was receiving evening care but only at day aggregate rate. I would give full aggregate rate where 2 or 3 or 4 or 5 periods of care during the night. Having to move in is just not enough.”

[40]On this issue I preferred the evidence of Ms Saltese, who seemed to me to take a more holistic and realistic view of the care which the family felt were required to take of Mrs Miller, given the devastating effects of her misfortune. They gave her care and attention as and when it was needed, and probably a great deal more besides. In my view Ms Wright took an unnecessarily restrictive approach. I consider aggregate rates appropriate.

Discount

[41]On this point Mr Hough conceded that a discount is usually applied for the reason that a commercial carer would pay tax and national insurance. At the sort of rates of pay involved here, however the incidence of tax and NI would be in the region of only 10 per cent or so. Whilst “family care” is often provided by someone who lives in the same house, with no travel expenses, or travelling time, in this case Mrs Miller did not live with her children. That is a fair point so far as it goes, but her son and his family lived only next door. In A & Others v National Blood Authority

[2001] 3 All ER 289

;

[2001] Lloyd's Rep Med 1872001

, it was held that the “normal” discount is now 25 per cent. The Court of Appeal in Evans v Pontypridd Roofing

[2001] EWCA Civ 1657

considered the appropriate discount. May LJ said:

“[37.] In my judgment there is no scientific basis for a strictly mathematical answer to this question. Nor is the exercise upon which the court is engaged amenable to such an answer. The assessment has to be a broad one, and what in the end is required is a single broad assessment to achieve a fair result in the particular case.… It seems to me that first instance judges should have a latitude to achieve a fair result.… Although there may well be elements such as tax and National Insurance contributions which would normally feature as to contributing to a discount, they may in particular cases the other elements which can probably be reflected by a greater or lesser discount. [38.] …. I am not persuaded that the reasons for making a discount which may be regarded as normal should result in a deduction greater than 25 per cent.”

[42]Counsel for the defendant Trust invited me to apply a discount of 33 per cent. Counsel for the Claimant submitted that no discount at all was appropriate. In this case, for a few weeks members of the family were living in the same house as the Claimant. Thereafter, whilst they were not, the Claimant’s son lived next door. In my view a modest discount is appropriate. No special elements were substantiated justifying making either no discount at all or a discount as low as 10 per cent, but nor is there in my view any justification for a discount as high as one-third. The appropriate discount in this case is 20 per cent.

Past travel costs

[43]These are agreed in the sum of £7,750.

Past loss of earnings

[44]Mrs Miller’s evidence in her witness statement was that when she first moved to London she worked as a home help for her local authority. In 1982, she started to do agency work as a cosmetics consultant in the West End and was then offered a full-time position as a cosmetics consultant with Yves Saint Laurent in John Lewis in the mid 1980s. In around 1990, she moved to Selfridges. She was an Account Manager for Kenneth Green in Dickens & Jones, and was then offered a job by Givenchy as Account Manager in John Lewis, Oxford Street, in 1995, where she has worked ever since.

[45]Before the amputation, the Claimant was working full-time and had no immediate plans to retire. She loved her work, she said, and she could see herself working for as long as she was able. She did not see it coming to an end at all. She thinks she would not have sought promotion as she liked being on the shop floor. She was earning around £21,000 a year before tax, including commissions and a basic salary. There was no company pension scheme so, she said, “I was only ever going to get a state pension and it would have made financial sense for me to carry on working.”

[46]When she had the amputation, it became clear that she was not going to be able to work for a while. Givenchy paid her full pay for three months, then half pay for three months. She was then on Statutory Sick Pay until October 2008 when she was able to return to work on a part-time basis. She now works two days a week, for a total of 16 hours. She works on Thursdays and Sunday but this can occasionally change. She now earns a basic salary of £706.39 per month before tax, plus commission of on average £10 to £15 per month.

[47]Givenchy and John Lewis have both taken a sympathetic view of her circumstances, although the Claimant says that it has been difficult because her role on the shop floor involves standing up for most of the day. She is able to stand up most of the time, but she is confident that if she needed to sit down more, she would be able to go to the medical team and her employers would accommodate her needs and make reasonable adjustments, as indeed they are required to do by statute.

[48]In her witness statement made as recently as last month, the Claimant said “I am still working two days a week at John Lewis in Oxford Circus. Usually I work Tuesdays and Sundays, but every six weeks or so I work a Saturday and a Sunday in a row. I still very much enjoy my job and I would like to work as long as I can still cope with it.”

[49]In cross-examination she said:

“I had no plans to retire. I have no plans to retire now. I enjoy my 2 days at work and while I feel able I’ll go on working. I don’t think I’ll do a third day even though more comfortable. Q Did you think that after you were 65 you might work fewer than 5 days? A. I never thought I’d cut down on my work at all it was never on my radar. I felt fine.”

[50]Counsel for the Claimant submits that it was her intention to work for as long as possible. Despite her disability, she has returned to work part-time. There is no pressure on her to leave from her employers. The claim is put forward on the basis that, without the disability, she would have continued to work full-time. Counsel submits that whilst the defendant Trust may argue that Mrs Miller would have reduced to part-time work in 2008, when she was 65, there is no evidence to support this.

[51]I found the Claimant entirely truthful and reliable in all the evidence which she gave. I accept unreservedly her evidence that she loved her work, and that she would have worked for as long as she could. As she put it, retirement was simply not on her “radar”. Some people are anxious to retire at the first possible moment, others, such as the Claimant, take the polar opposite view of retirement, and have no wish ever to retire from work they enjoy. This is entirely understandable for an energetic single person such as the Claimant who lives alone and has few interests outside her work and family. Her evidence that she felt ten years younger than her true age before the amputation is also of significance here. The fact that her work is not pensionable is another important point. It would have made sense for her financially to stay at work as long as she felt able to do so. The fact that, despite her severe disability she still manages to do 2 days’ work per week, and proposes to continue to do so, in a job involving much standing, is further evidence of the fact that, had she not been injured, she would worked full time, or almost full time, for as long as she could. It is also relevant that she was fit and healthy, with only relatively minor back problems.

[52]I have reached the conclusion that the Claimant would have been likely to have stayed at work full-time until age 72. Thereafter, I think that she would have been likely to work 4 days per week until 75, when she would probably have retired completely.

[53]I think that it is entirely possible that, given the success of the latest prosthesis, the Claimant may continue to work for at least another year. She has, however, at various stages in the litigation said that she may feel she should retire in the near future. It seems to me that whilst it is possible that the conclusion of the litigation may cause her to take the decision then, it is probable that she will continue for a year or so doing work she enjoys so much. I therefore consider that the claim should be assessed upon the basis that all earnings are likely to cease on or about 1st August 2015.

Future care

[54]With suitable accommodation and the various aids and appliances recommended, it is anticipated that Mrs Miller will be able to maintain her largely independent life. It was agreed by both the care experts that she will need some paid care in the future. They differed on the level of support worker needed, and on rates and periods of time. The original claim for future care was for £80,278. This figure was produced by adding the following three periods of care at the various rates contended for: i) to age 75: employment of a support worker for 4 hours per week at £14.50 per hour: multiplier 3.99 x multiplicand £3,106 = £12,033.84; ii) 75 to 85: employment of a support worker for 7 hours per week at £14.50 per hour: multiplier 7.99 x multiplicand £5278 = £42,171.22; iii) 85+: employment of a support worker for 14 hours per week at £14.50 per hour: multiplier 2.47 x multiplicand £10,556 = £26,073.32

[55]In answer, the defendant Trust argued that in period(1) no more than 2 hours was needed, and, as a cleaner could cope with all that the Claimant needed done, no support worker was necessary. As to

(2) and

(3) no challenge of substance was made to the hours, or rates, or amounts claimed, but the defendant Trust submitted that a discount of 50 per cent should be applied to period (3) reducing the total for that period to £13,323.18 to reflect the risk that the Claimant would have need carers by that age in any event. Mr Hough makes the point that this amounts to double-counting, as the agreed estimate of 14 hours already reflects that contingency.

[56]As to period (1) Ms. Wright was asked about this in cross-examination, “Q … you say 2 hours? A Yes. Q Have you taken into account what the joint rehabilitation report says about [recurrent stump soreness/ulceration problems and the need for care over those]? (p. 272 - answer to question 9?) A She is a very independent lady and has managed well in the past. I don’t see the need for that care until she gets a bit older. Q As to your 2 hours would you agree 3 would be a fair compromise? A I can’t disagree with 3 hours – it is reasonable, but so is 2 hours.”

Q As to your 2 hours would you agree 3 would be a fair compromise?

[57]Ms. Saltrese when cross-examined was also asked about period 1:

“Q your figure for the cost of future care at £14.50 per hour is too high just for housework? A No, because you cannot ask a domestic assistant to empty a commode.”

A No, because you cannot ask a domestic assistant to empty a commode.”

[58]I do not consider, on all the evidence, that even in period(1) a basic cleaner could offer the support the Claimant needs, nor that it would be appropriate to ask a cleaner to perform tasks such as were mentioned. I also consider that 3 hours per week should be allowed for period (1). For periods

(2) and

(3) I award the amounts as claimed. The effect of these findings upon the exact figures should be agreed by counsel. I reject the suggestion that a discount of fifty per cent should be made, or indeed that any further discount should be made, for the reason given by Mr Hough.

Prosthetics – past and future

[59]There are three separate items:(1) the “primary leg” – Genium or Orion – which is a highly controversial issue;

(2) the second leg, on which there is substantial agreement;

(3) the question of the need for a “water activity limb,” on which there was disagreement.

Primary leg

[60]The Claimant’s evidence on this was that when she was first discharged from hospital her mobility was very limited. She could only keep the first prosthesis on for short periods of time as the stump was extremely sensitive and painful. She used her crutches to get around indoors and used her wheelchair outside. At that time, she had a prosthetic leg with a ‘free knee and foot’, which is a system that relies on gravity rather than any sort of electronic system. It was heavy and clumsy. She had all sorts of problems with the socket and at times it was excruciatingly painful.

[61]The Claimant’s ‘follow up’ treatment has been at the Holderness Centre, based at the Charing Cross Hospital. When she first started using a prosthesis, she was having adjustments to her socket performed “a few times a week”. She now visits about twice a month, but “it does depend on how things are so it can be more often”. She has tried a number of different legs, and it seemed almost with each successive type that she had noticed a degree of change which was a perceptible improvement. She used various types of ‘free knee and foot’ prosthetic legs for over a year, but they were heavy and she had problems with “the knee popping out or the leg collapsing” when going up or down stairs, or when walking on uneven ground. She felt very unsteady then, and “had to think about every single step”. She was falling over approximately twice a week. She eventually settled on the SK2 leg and knee, which was the lightest and best option in terms of a free knee and foot, but she still had “all sorts of problems with it” and was very keen to try a ‘computerised’ leg (by which she meant one that incorporated a microprocessor). In the briefest terms, ‘computerised’ or ‘micro-processor’ legs incorporate computerised hardware and software which can anticipate movement or imbalance and react appropriately, to keep the user stable and safe.

[62]In 2009, the Claimant had a one-month trial of the computerised ‘C-Leg’ which she found a distinct improvement on all she had known before, in that(a) it felt lighter;

(b) she could move better;

(d) she did not have any falls. The hospital applied for funding to provide it to her, but that was refused by the Primary Care Trust (“PCT”). The cost of a C-Leg was £28,000. She therefore went back to using the SK2 free knee and foot.

[63]In early 2010, the company which supplied prosthetics to Charing Cross Hospital brought out their own version of the C-Leg, which is slightly cheaper. This is called the Orion and it couples with a self-aligning foot called the Echelon Foot. She “trialled” this combination in July 2010 for about 3½ weeks and it was “a great success”. Again, the hospital applied for funding from the PCT, but again it was refused. She appealed the refusal and they agreed to fund the Echelon foot but not the knee. For a while she used the free knee with the Echelon foot. This was “better than nothing,” but Mrs Miller still had significant problems with the knee and with the stump.

[64]In April 2012, the hospital bought two Orion knees and gave one to her. That leg was “a huge improvement” over thefree knee/Echelon footcombination, although in her opinion it was not as good as the C-Leg. The Orion gave way occasionally. She had some falls. Of the Orion generally she said in her witness statement:

“It is not as clever as the C-Leg. However, the major on-going problem is the stump. Any small changes that happen to the stump, for example, if I get more muscle from going to the gym or lose a bit of weight, there is a massive effect on the stump and the socket starts to rub.”

She said that she gets, “ … terrible water blisters and then can’t use the leg for a few days whilst it all calms down.”

[65]When she made her first witness statement she had just been made aware that there was a more advanced leg available, called the Genium. She said she would like to try it “… as it is safer and more stable”. She had been advised that the Genium leg would provide much more stability.

[66]She had been able to mobilise quite well on the Orion leg. However, when she had the leg off, for example, first thing in the morning and last thing in the evening, or when she was having problems with the socket, she found that she still needed to use her crutches to get around inside the house. With the Orion leg she could do step-over-step when walking up and down stairs (as distinct from bringing both feet onto the step before moving to the next step), although this is notoriously very difficult. She had been working on it at the gym and she was slowly getting closer to being able to do it.

[67]In her June 2014 witness statement Mrs Miller said, “At the beginning of May I bought a Genium leg and I have been using this for the last couple of months. I am getting on very well with it. Walking with it is a lot less tiring and the knee lock has also made a big difference. Over the few weeks I have tripped a couple of times, but the Genium has stopped me from falling over as the knee automatically locks. I feel more confident and more stable than I used to with my Orion leg, when I used to fall right over on a regular basis onto the floor. This used to happen in the street but more so indoors. For the last seven years, I have used a muscle grip method to keep my prosthesis in place. This required me to wear the leg socket directly on my stump and hold it in place using the muscles in my leg. This has consistently caused me to develop blisters and breakdown of the skin on my stump. Because of the problems that I have had with blisters, I recently decided to try using a sealant which is a type of lining that goes between my stump and the inside of the socket, and is designed to hold the socket in place securely. The liner slides onto my stump and has a gripping mechanism which holds it in place within the socket. This means that I don’t have to use as much energy in holding the socket in place, as it does the gripping for me. The liner also protects my stump from rubbing against the inside of the socket. It doesn’t mean I won’t ever get blisters again, but hopefully it will reduce the number of blisters from forming. I have been using a liner for about a week and so far I am getting on very well with it. It has caused me a small amount of skin irritation, but this is now settling down. I very much hope to continue using the liner in the long term. I have been told by my prosthetist that I will need to replace the liner every 6 months. I use an off-the-shelf silicone cosmesis as I find that the custom-made cosmesis’ are too heavy for me. An off-the-shelf cosmesis lasts about 18 months before it needs to be replaced because of wear and tear. My cosmesis cost £975.” [Emphasis added.]

[68]In cross-examination she was asked a series of questions about the Orion and the Genium. “Q Was the computerised C-leg a significant improvement on what you had had before? A Yes.” The Claimant was asked to look at an Echelon Evaluation Form which she had completed, and she agreed she had ticked “v good” or “excellent”in respect of its properties. She added, “A …. I preferred the Orion to the C-leg after I had Echelon. Q Who suggested the Genium? A I’d read about it in magazines and it was mentioned to me by one of the prosthetic experts - David Hill. My view is that it is better for me. Q Look at p. 51- reference to falls with Orion leg? Do you agree that that paints a slightly different picture? A It needed a service. Q p. 56 paragraph 6: you said when referring to the Orion that you fell over regularly: was that because a service was needed? A It could have been but I was falling over often. Q These legs sense if you are going to fall? A The Genium does and it also lets you step back, which the Orion doesn’t. The Genium seems to know what I want to do and it just holds me. I feel much safer on the Genium than with any other leg. The very fact that I don’t fall over is a big plus. It is a bit heavier – the knee is, but the foot tends to balance out. They’re all heavy.” Q Who suggested the Genium?

Q These legs sense if you are going to fall?

[69]The care experts have agreed that using the Genium leg significantly improves her gait and mobility. The care experts also agree that the improved prosthesis will reduce the risk of falling, and have a positive impact on confidence.

The DVDs

[70]A few weeks before the hearing some films were made of the Claimant using both the Orion and the Genium. These were transferred to two DVDs. I was invited to view these before the oral evidence began. They showed a number of different exercises.

[71]When walking with the Orion on a flat surface in a straight line from one side of a room to another and returning, the Claimant looked relaxed and comfortable, but took short strides and had an obvious limp. She turned quite slowly, and when making a 180-degree turn at one point touched a door frame, or the wall near it, in order to steady herself. With the Genium the overall appearance of the Claimant’s gait was significantly more natural. She took longer strides, turned quickly and more confidently, did not need to steady herself at all, and her limp was much reduced in appearance: indeed had she been wearing clothing which covered the prosthesis, rather than rolled-up trousers exposing it, her limp might have been almost undetectable to the uninformed eye. These contrasts between the prostheses were more marked when walking around markers on the floor to simulate taking tight turns.

[72]When walking with the Orion up a metal ramp designed to simulate a steep slope, the Claimant needed to use the handrails on both sides when ascending, and one handrail while descending. With the Genium, she walked up and down without needing to use them, and without any apparent difficulty.

[73]One significant feature of the video was the section in which Mrs Miller attempted to stand still on the downward slope, first with the Orion and then with the Genium. When she attempted to stand still with the Orion she found that she needed to step forward, because it did not provide her with sufficient security. Whereas, when she attempted the same exercise with the Genium, she found that she had no such difficulty in standing still. Indeed she was able to raise her hands above her head to demonstrate her confidence.

[74]When walking with the Orion on matting between handrails, in a simulation of walking on rough ground, the Claimant walked very slowly, stopping at times, and she needed to use both handrails: with the Genium the handrails had been taken away, and the Claimant walked more quickly without stopping, although she needed to steady herself at one end by touching the wall.

[75]When opening heavy doors the Claimant was noticeably quicker and more confident when using the Genium, whereas with the Orion she was showing evident signs of difficulty and needed to cling onto the door handles for support. Mrs Miller demonstrated the confidence with which she was able to step backwards when using the Genium, when opening a door as if to let somebody in.

[76]When walking outdoors the difference in the appearance of her gait between sequences filmed with each limb was more noticeable than indoors. Whilst her gait was close to normal with the Genium, the limp was obvious with the Orion and the pace slower.

[77]Descending steps, the Claimant held a handrail as she did a step-over-step descent: with the Orion there was a perceptible lack of confidence, whereas when the exercise was performed wearing the Genium it was much more natural and confident in appearance.

[78]When getting into a car, Mrs Miller was noticeably more comfortable using the Genium, as she did not have to move her left limb manually as she found necessary with the Orion. Instead she was able to move the leg freely, naturally and normally.

[79]In summary, the DVD in my judgment demonstrated that in every respect in which a test was performed, the Genium was significantly more effective than the Orion in terms of restoring the mobility and confidence which Mrs Miller would have had before the accident. Neither limb, of course, is in any way a substitute for the lost leg. The level of mobility, confidence, and gait, and, most importantly, stamina in being able to walk any distance, is far reduced with both. It seemed to me that the evidence of the DVD was that the Genium is, to a significant degree, the product best suited to cater for Mrs Miller’s needs. It is nevertheless necessary to consider the medical experts’ views before reaching a conclusion.

Summary of the rehabilitation experts’ views

[80]In their joint report Dr Sooriakumaran and Prof Hanspal included the following observations. In answer to the question “… does the Genium leg offer any advantages over the Orion leg?” Dr Sooriakumaran said “The Genium is the most technically advanced microprocessor knee joint…currently available. The following advantages of the Genium over the Orion are well recognised in the field of prosthetic rehabilitation:(1) a gyroscope … provides optimised physiological gait;

(2) the real-time control provides intuitive and stable energy saving gait;

(3) the obstacle function makes it possible to simply step over obstacles;

(4) the innovative stand function enables [the user] to walk up or downstairs ‘step over step’ with a fluid gait; (4) [the manufacturer] offers a free service inspection in months 24 and 48, and a 6 year warranty.”

[81]Prof Hanspal added that he agreed with those observations by Dr Sooriakumaran, but added that the Orion or the C-leg recommended in Dr Sooriakumaran’s original report were also prostheses with highly technical microprocessor controlled knee units which provided high-quality functions of gait and stability that the Claimant was very happy with at her consultation with him. Prof Hanspal believed that the fine functional improvements in gait shown in DVD “are noted mostly by the expert eye of the professional and would be unlikely to be noted by the average person on a day-to-day basis if not pointed out by the printed commentary/text in the DVD”.

[82]In answer to the question:

“Do you consider that the decision to buy a Genium leg is reasonable?”

Dr Sooriakumaran’s answer was to the effect that the Claimant’s present mobility grade is ‘SIGAM Grade E’ i.e. she can walk 50 metres or more without walking aids, except to improve confidence in adverse terrain or weather. In the event of no budgetary restrictions the Genium would be the clinical choice. The Claimant has used the Orion for a much longer period compared to the Genium. In the DVD she had demonstrated a significant improvement in gait with the Genium. Improvement in key gait parameters such as step, stride, knee flexion, velocity and overall fluidity of gait are evident.

[83]Prof Hanspal said that the Claimant’s SIGAM mobility grade was ‘E’ even at the time of her consultation with him “… and in this outcome measure there has been NO improvement. As mentioned above the improvement in gait pattern of step, stride, knee flexion, velocity and fluidity is noted by the expert professional eye and unlikely to be noted by the average person on a day-to-day basis, if not pointed out in the text accompanying the DVD. The Claimant was extremely well rehabilitated by the team at Charing Cross hospital with an Orion knee and returned to work and leisure. I’m not convinced that the gains are proportionate to the increasing cost of double or more of the Genium and would defer the decision to the court. Dr Sooriakumaran has also noted the reservation budgetary implication in the paragraph above.”

[84]As to future prognosis: “Q Mrs Miller reports frequent episodes where she is unable to wear a prosthesis because of stump problems (particularly blistering) which prevent her using the prosthesis. Does any limb avoid such complications with the stump? A Both consultants agree that “stump soreness/ulceration is related to socket fit rather than to the rest of the prosthetic components. On average such stump problems occur 2 to 3 times a year and each episode takes about 5 to 7 days to recover. During these episodes the Claimant will rely on a wheelchair. Q Is she at risk of other stump complications? A [Both consultants answered] “on the balance of probabilities the Claimant is unlikely to suffer from any other stump complications”.

[85]The next question was:

“Q Do you think that it is likely that Mrs Miller will require the use of a wheelchair either now or at some point in the future? If yes: (a) when? A [both consultants replied] “… at present Mrs Miller will need a wheelchair intermittently if she were not able to use prosthesis due to stump soreness. She may also use a wheelchair for long distances. The need will increase beyond 75 years. She may come to need powered wheelchair/mobility scooter for long distances beyond 75 years. Q (b) will the wheelchair use be intermittent or permanent? A [Both consultants replied] “… intermittent to start with. Progress dependent on any other potential co-existing medical problem. Q Do you agree that she will require care the future? A Mrs Miller has regained independence for personal hygiene and most of daily living tasks. She will need assistance with awkward and physically intensive tasks in and around her home. This will increase beyond age 75.”

[86]On a different point, they were asked:

“Q Are her accommodation and care needs reduced or eliminated by the provision of a different prosthesis? Both consultants answered “A … provision of modern prostheses for a 70-year-old transfemoral amputee optimises gait and stability. The improvement is unlikely to be sufficient enough to reduce the level of care and assistance”

Dr Sooriakumaran’s evidence in cross-examination

[87]In cross-examination of Dr Sooriakumaran Mr Barnes began with the issue of the discrepancy between the two reports. “Q Are you an experienced expert witness? A I am. Q. Your first report [same handed in] is dated 24th April 2013, but it is not in the trial bundle: were you aware when you wrote that that a Genium knee might be suitable? A Yes. Q But look at the conclusion on p. 12 -- you rejected it? A No I hadn’t. At that stage the Claimant was progressing in her rehabilitation, and since then she has had intensive physiotherapy and has had a trial of a Genium and she has done very well. I have also seen DVDs. The C-leg is considered as next step from Orion and I felt perhaps … she could do even better with a Genium. Q The difficulty is that you don’t say that? A At that stage it was difficult to prognosticate, but in last 18 months I have seen the Claimant make so much progress I have no reluctance in proposing the Genium over the C-leg. Q At p. 68 there is the report which is relied upon, with exactly the same date as your first report, but you do recommend the Genium, why? A It followed a review of the Claimant. Q But the only new information you had was the physiotherapy report? A I had also had benefit of seeing the Claimant informally at the limb user group and I was able to see her using the Genium. Q Not in 2013? A I can’t remember exactly. Q She didn’t have the benefit of the Genium until 2014? A I can’t be sure. Q You have changed your view on the basis of physiotherapy? A Yes, but Pam Barsby [the reporting physiotherapist] has been seeing the Claimant for a long time and I put great value on her view. Q p. 127 – which passages caused you to change your view? A Although the second report is dated same day I think it was written after a report from Pam Barsby following Genium trials. I can’t say why I changed my opinion on the basis of this report. Q Look at the medical notes in Vol IV p. 192 & 194 … A She was using a basic prosthesis and had tried C leg and Orion and she had every potential for better microprocessor knee … She was forced to make a choice on limited experience. ….. C-leg has much better microprocessor effect than Orion. Q is the reason for the change between the 1st and 2nd reports that someone else pointed you in favour of a Genium? A No. Q Weight is a consideration? A To all above-knee amputees weight is a consideration. The Genium may be heavier but the functional capability makes it feel lighter, and what matters most is the socket and if the socket fits well that makes all the difference. The majority of amputees are in the age group of 70+. Q. p.72 - benefit from Genium until 75? Yes but she has progressed so well that she would continue to benefit to end of life. Locked knee lightweight £8500 and you would renew every 5-6 years. If someone uses wheelchair regularly there is less need for heavier knee joint. Heavy prosthesis can aggravate bad back. At 75 she will be assessed at to how she is doing with micro knee – if weight a problem that will inform the view. They are constantly making limbs lighter and more waterproof. C-leg was introduced 20 years ago and the Genium 4 or 5 years ago. [Table of comparative weights: Genium = 200gms] Heaviness is not perception of patient using Genium. …. Genium is a relatively new limb in NHS and I have seen patients generally improving with it. I also see that the Claimant herself is improving. Good fit of socket might result in a significant improvement. There are objective means of detecting differences between limbs. The Claimant has had observations showing objective improvement. Water knee: I do not think the VGK model (“Very Good Knee”) is described as waterproof. Not aware it can be exposed to soapy water etc. Just splashproof. Prof Hanspal says VGK is waterproof. I have looked at web site and discussed with prosthetic colleagues and my view is that it is not marketed as waterproof. VGK could get her to side of pool. Q Literature bundle: Look at p. 160 Prof Hanspal’s article 12 years ago: is your answer the same? A At the end of the day I think it is question of what the patient is comfortable with.”

[88]When he was re-examined he said:

“In 5 years I would anticipate the Claimant would continue to progress the rehabilitation as she has to date. She might regress through age but I think probably she is likely to continue with the Genium. At 82, [when the Claimant would next be considering renewal] if she has no medical complications, age is not considered an exclusion factor, and if she were able to continue with it then I think she has potential to be using it to end of life. The facts that she still works, goes to gym, swims and so on are very much factors for an optimistic prognosis. Her optimal BMI [body mass index] and the fact that she has no cardiovascular problems are also relevant. Therefore in best motivated form. Q Tab 8 yellow p. 147 - physiotherapist’s report - this is what I was referring to when I said I had seen Pam Barsby’s report.”

[89]Amongst the specific criticisms which Mr Barnes made of Dr Sooriakumaran was an assertion that he had failed to make comparisons between proper alternatives. In particular, he had failed to analyse why the Claimant had been doing so well with the Orion initially and then in the later stages doing so badly. The Orion and the Echelon foot had been performing “very well: indeed better than the C leg contrary in fact the experts’ views”. There were, Mr Barnes submitted, two reasons for that(1) the Orion needed to be serviced: it was not performing well for essentially mechanical reasons which could be remedied by servicing;

(2) the socket-fit was unsuitable or became unsuitable in use. Each of those problems should have been solved before any comparison could properly be made between the Orion and the Genium. The physiotherapist had said in evidence that without the solution of those problems it would not have been a fair test between the two.

[90]Mr Barnes submitted that the starting point for a critical evaluation of the evidence relied on by the Claimant was to consider what reasons Dr Sooriakumaran had given for departing from his original view. It seemed that it was simply that the Claimant had done well, or so it appeared, in her trial and use of the Genium limb. Against that, Mr Barnes pointed to a number of factors which he submitted counter-balanced that reason to a significant degree. First was the unquestioned issue of the weight of the Genium. Then there were the factors of increasing wheelchair use with time, the Claimant’s back problems and the general degenerative effects of the process of ageing. Prof. Hanspal had pointed to other factors as well: in particular, changes which occur in the condition of the stump and the difficulty of sitting with a Genium knee in situ because of its tendency to dig into the groin: thus with greater wheelchair use the Claimant would be unlikely to use the Genium. Dr Sooriakumaran’s original opinion, which Mr Barnes submitted should be regarded as his true and correct view before his recent change of mind, was that the lighter limb with the lockable knee was the prosthesis which the Claimant would require at age 75. He pointed to Mrs Miller’s own evidence the weight of the Genium.

Prof. Hanspal’s evidence in cross-examination

[91]The evidence of Prof. Hanspal was relied upon by the defendant Trust as the more reliable view. As the result of an unexpected event, a transcript of his cross-examination has been made available. I shall cite from it extensively so that my conclusions as to the witness’s evidence maybe fully understood. I have attempted to divide it into discrete sections as headlined below. On the Genium and the Orion generally “MR HOUGH. You will see in paragraph 6, page 56, that [the Claimant in a recent witness statement] says that she gets on very well with the Genium leg that she has bought. She finds it a lot less tiring, and although she has tripped, it has stopped her falling over because it locks. Is that a recognised advantage of the Genium leg, that it stops you from falling over? A. It is, but it is also something that is recognised in most of the microprocessor knees – perhaps better [in the] Genium, but certainly recognised in all of them. Q. Do you accept Mrs Miller’s evidence that she finds it a lot less tiring to use a Genium leg? A. It is a subjective feeling and I cannot challenge it. If she feels it, I have to accept it, and I will accept it. Q. She also says, “I feel more confident and stable than I used to with my Orion leg”, and she said that fell over on a regular basis. That is a subjective--- A. Yes, and she also mentioned it yesterday when on the stand. Q. You also heard yesterday that she said that one particular advantage is that when she steps backwards – she gave an example of when she opens the door to let someone in – that she finds that the Genium leg stabilises her. Do you recall that evidence? A. Yes. Q. Is that a recognised advantage of the Genium leg? A. Yes. They say that the Genium allows you, as they say, to walk backwards. When they say it allows you to walk backwards, one of the first questions you could ask in reverse is how many people actually walk backwards on a daily basis? And the answer is very, very few. There are just occasional circumstances. … The picture given is perhaps of somebody negotiating the Underground in a crowded area and suddenly … needs to turn back because of some obstruction. That is the functional advantage of this … that you can move backwards. And hence they are recommended for somebody who is going to face that sort of environmental obstacle on a regular basis. That is the way I interpret it, yes. Q. Would you think then that that applies to somebody who is working on a shop floor in a busy department store, for example, such as John Lewis? I do not know if you have been there. …. A. I don’t know. It depends on the environment of the shop. Q. What about the example that she gave of opening a door and letting someone in? That is the sort of example, is it not, where people step backwards in the ordinary course of life? A. Sometimes, or step sideways – not necessarily backwards. But that again is an example that she’s given. I accept that there are ways. She managed that. That wasn’t a problem presented when she was walking most successfully with an Orion. Q. Except she fell, did she not? A. Not when she was doing very well. She fell in the latter stages after having had a trial, and that--- Q. No, she fell more in the latter stages. A. Yes, okay, she fell more in the latter stages. She reported the same … evidence to Dr Sooriakumaran and to me. She didn’t mention that she actually fell, but there was a greater tendency to [fall] maybe, but she was doing exceptionally well, most admirably well. Q. The description that she gives, that it [the Genium] saves her energy, that she finds it easier, appears to accord with your own agreement with Dr Sooriakumaran, that there are tangible benefits which the experts recognised. Do you agree … that her own subjective assessment … accords with your expert opinion that this leg brings improvements. …[and] … with the joint statement [with] Dr Sooriakumaran that there are improvements in using the Genium leg over the Orion? A. I would not challenge a patient’s subjective experience. After all, that is a symptom. What we would try and do is try and analyse as clinicians what the underlying reasons may be and the extent to which it impacts. There was also a time, and Mrs Miller mentioned it yesterday, that the Orion knee was probably in need of service, and that the socket fit was poor. These are both factors that could have been responsible for the increase, otherwise unexplainable increase in the symptoms as presented at that later time. If the socket doesn’t fit well, and it is the only interface that controls the artificial leg that one has got used to, then the control of the artificial leg is also impaired simply because of the poor socket fit. The first stage on a clinical basis at that time would be to improve the socket fit, and hopefully control of the knee would be regained to the very good experience that she had certainly when she came to see me. On the DVDs [JUDGE] Have you seen the DVDs? A. I have seen the DVDs. [JUDGE] So far as the Orion is concerned, which she was using in the DVDs, is there any suggestion that there was impaired fit for the socket when she was using it for the DVD? A. You can’t, just by observing from a distance, check the socket fit. [JUDGE] No, I appreciate that. What I mean is, is there any evidence that [the socket when the DVD was made] was in the state in which the one she complained about had been, in terms of fit? A. I don’t know the answer to that, because it is all a question of timing. Symptoms of socket-fit also are presented by the patient subjectively to start with. I know that when she came to see me she said that she has problems, but she’s doing very, very well. I am looking at trying to answer the question: why, from the period when she was doing exceptionally well and was happy, she comes to say in recent statements that she’s had many, many falls. I am trying to analyse that. And the second, of course, was the fact that the knee needed service, according to her. So those are the two things that should have been addressed at the time. [JUDGE] Mrs Miller was not asked any questions about the DVDs, or about the Orion which she was using in the DVDs, was she? So there is no evidence about that? MR HOUGH: There could be, because (inaudible) who took the DVD would be able to address that. [JUDGE] …. The impression I got from watching the DVDs was that, as you say, Mrs Miller was doing exceptionally well with the Orion, and she certainly was not … in any way attempting to demonstrate that it was awkward or anything like that. She seemed to be walking naturally very well. But with the Genium it was noticeably better. THE WITNESS: It was generally better, if you talk to a professional looking into it, but on a day-to-day basis, if you think in terms of what the observer on the road, or, can I use the word, what a lay person would see, they would see something is wrong, the person is limping, that is the impression they would get – the subtleties would not. On the other hand, it is a subjective reading that is important. And I think I mentioned that in my statement, in the joint statement. [JUDGE] Taking your general point about the observer, it seemed to me … as I was watching it, that with the Orion, while she is walking very well, an observer would notice that she was limping, whereas with the Genium an observer might very well not notice any limp? A. I thought they would notice her limping. [JUDGE] You did, but if you were a casual observer, I was trying to visualise myself whether you would actually notice the limp …. A. I think the subtext was very useful to understand. [JUDGE] Yes. A. I am talking about without the subtext. [JUDGE] Without looking at … the commentary? A. If the third person saw it without the subtext, then. [JUDGE] Yes. Very good. I am very sorry to have interrupted your cross-examination. …. MR HOUGH: Mrs Miller herself notices the benefits, and the question I was asking you was that there appears to be a remarkable correlation between the benefits that she notices in using the Genium leg with your own expert opinion in these things? I have not doubted that. The objective “Tug” tests to measure gains (These tests are “ …quantitative and standardised measures of most of the manoeuvres required for basic mobility. The subject is timed as they stand up from a chair, walk 3 metres, turn and return to the chair. The score is the time taken to complete the circuit.”) Q. …. You have seen the Tug results, I think. Have you seen those? A. Yes. Q. They are in tab 8, page 150 of the bundle. I assume you are familiar with the Tug test. A. Yes. Q. One can see here that it takes 9.22 seconds to stand up from a chair using a Genium, and 15.5 using an Orion. The next one is that walking 3 metres takes 9.28 seconds with the Genium, and 14.85 with the Orion. The last one is returning to the chair, which takes 9 seconds, and just over 15.3 seconds with the Orion. Those appear to be reasonably significant benefits – subjective significant benefits. Would you agree with that? A. Until you came to the (inaudible) I think the others, yes, I would agree. [JUDGE] Until what? A. Counsel mentioned various tests, various findings, and the last one he came to was “stand up and go”, when asking me the question. Am I right? Have I misunderstood? You were talking about the fluidity of all the stuff in--- MR HOUGH: The question I asked you--- [JUDGE] Can I just have a moment to try and follow the document, because we did not go into this in any detail….. So you have three circuits, do you – 1, 2 and 3 – which are instances of standing up, walking 3 metres and sitting down again. So 1, 2 and 3 are all exactly the same things? MR HOUGH: Exactly. It is a direct comparison, doing the same thing, using the different (inaudible). A. Could I hear the question again? MR HOUGH: Let me remind you of the question that I was asking. The question I asked about these tests is: are these differences of time taken, are they significant in your expert view? A. Actually in my expert view, while the Tug test is recorded, I do not believe it is that significant in the functional sphere. …. While I know that it is a recognised functional outcome measure used in prosthetics, recommended, even recommended by me when I give my lectures on functional outcome measures, the significance is less than figures here show. …. It will matter if it is going to be translated into a functional benefit somewhere, because that is the aim of rehabilitation. Rehabilitation isn’t a question of getting graphs and figures showing X seconds’ improvement. It is a question of getting the person to function in a better environment more successfully. And if we take that into consideration, then I think a 7 second improvement in walking time is not that significant. MR HOUGH: But if it is multiplied by hundreds of incidents of sitting down, standing up, walking 3 metres, surely it becomes significant in the course of the day. My opinion is the opposite. I think it should still be measured, but if somebody can show it is translated into a functional benefit, then the answer is yes. That is more important. On the Claimant’s own views Q. Looking down the page, you will see there are some quotes from Mrs Miller. Have you seen those? A. Yes. Q. She says that the Genium frees her mind up? A. Yes. I don’t disagree with that, though there is a test which, if done, would have been more concrete evidence, and that is called the Stroop test. You get somebody to do two tasks at the same time. They are walking on a treadmill with the prosthesis, and a bit like I suppose some sort of driving test in a simulator, and then there are distractions. And to see their walking with slight distraction. And if that objectively is shown, then that would have been support to this. But I don’t disagree with what she has said. I expect it is likely to happen. I have never--- Q. So when you say you expect it is likely, you expect it is likely that the Genium…? A. Yes, but what we don’t have here is how much--- She said that Genium frees her, but what we don’t have for comparison are the answers to these questions and the comments when she was walking on her own account so successfully with the Orion. Q. But what we do have, because she is a lay person, she describes things in the way lay people do. A. Yes. Q. She says that it is better having the Genium as she feels safer and more confident. A. Yes. Q. And she gives specific examples of why it is better? A. Yes. Okay. Q. I am just wondering, do you agree that she acted reasonably in buying the Genium? A. I think there are certain things that should have been tried before, as I said. The sequence, the way I see it, she was doing very, very well with the Orion, and then she went and bought the Genium. …. At that time, there were an increasing number of falls, and the socket wasn’t a good fit. As a normal practising clinician, at that stage I would look to see how she’s done so well until now, what has gone wrong – address those two things, and then see. I think that would have been a reasonable course of action at that stage. Secondly, if the socket doesn’t fit right, and the socket is improved, at the same time we are often being taught for generations not to make 2 or 3 changes in the prosthesis at the same time. If you do make a second change, like change the knee, or change the ankle, then it is very difficult to pinpoint what the cause was – whether it is the socket that has improved. And if at that stage you give the person a much better socket, then a lot of the benefit, perceived benefit, could even have been accounted for by the change in the socket. And this is what in our field we would probably think of in terms of a placebo effect. I am not denying that the Genium is a much better knee. I am not denying that. .… Q. Professor Hanspal, you have just said that you think the Genium leg is a much better leg? A. I have not denied it. Q. And we know that Mrs Miller was told about this by a prosthetist at some point, and she wanted to have a look at it, and so she had a trial, and the trial has been very successful. Do you agree? A. Yes. Q. But more than a trial – the purchase and subsequent use has been very successful, and even more successful than the previous legs? A. It is reported that way and I don’t disagree with it. Q. It sounds to me as though you would agree that that probably would be expected if someone got a much better leg, that one would expect to have improvements? A. It is a question of how that much translates into a daily functional benefit. Not to disagree with the perceived benefit that a person presents, but we just look at some of the other factors. By and large she still walks with a limp and with a stick. In that grading, [JUDGE] Well, not on the DVD. MR HOUGH: That is right. [JUDGE] Yes, she walks with a stick when out in the street to … provide some sort of signal to other people and some protection for herself. A. Yes. That is E grade. That is the point I was actually referring to. It was (inaudible) with the previous and (inaudible) now. [JUDGE] I see. MR HOUGH: (.Inaudible.) is a pretty blunt instrument, is it not? A. It is a very blunt instrument. …. Q. I asked whether you thought it was reasonable for Mrs Miller to have bought the Genium leg, and you said that there was another course that she could have taken. A. Yes. Q. Obviously I accept that. A. Or the clinicians she saw should have taken. Q. Should have, or could have? A. Could have. I would have. Q. I understand. You would have given different advice. I completely understand that. But the advice that in fact she was given by the prosthetist was that she should try a Genium leg. A. Yes, the prosthetic works--- Q. And that has been successful. A. The prosthetic works for her to walk. …. On why the Claimant should have kept to the Orion MR HOUGH: … One of the reasons you were against changing from the Orion leg was that she had got used to it and was walking around on the Orion leg. Have I understood that correctly? A. It is one of the reasons, but the fact that she was doing very, very well, and when she saw me there were no complaints and no symptoms recorded. Q. But you specifically refer in your report, and I can take you to it, that she is used to it, and one should be cautious about changing the manufacturer of a limb? Q. So now that she is with the Genium limb, does it follow from that that now she is on the Genium path, that she should stick with the Genium path if she stays with the microprocessor knee in the future? A. I think that is a question for the court to answer. Q. But your clinical view was that in relation to--- A. My clinical view as a practising principle remains that if somebody is doing… Well, sometimes you say, “If it’s not broke, don’t mend it”, especially if the person is doing very, very well. …. Q. I understand that that is what your rationale is behind that – if it is working, do not change it – and you say that as a clinician. But the point I am making is that, as a clinician, that same maxim would apply to the Genium leg, would it not, and that if in 6 years time when she comes to replace it, if it is working, do not change it. That maxim would apply to the Genium, would it not? A. The maxim would apply, but if you look at it for 6 years from now, I think the scenario would be different, because you might need to make a change, because the patient’s own body and physiology has changed, and you would need to respond to that. On the effects of ageing and future replacements Q….. In your report you considered that Mrs Miller’s needs would be met by having a microprocessor knee through to the end of her life? I didn’t specifically say that. In fact I’m quite sure I didn’t say until when. I generally don’t. But I do say that at the age of 75 she is likely to require wheelchair dependence and so on. So just out of extrapolation, but I don’t say she (inaudible) have a leg at 60, or 70 or 80. …. [JUDGE] Is there any reason why you think she would not be using it? Yes, because age creeps us on all of us, I am afraid. We get medical problems. We get general weakness. [JUDGE] But assume that she stays fit and active. We have heard how she has basically got a good body mass index, that she is a lifelong non-smoker, and has no cardiovascular--- But on the other hand we have also agreed that round about the age of 75 she is going to become dependent on a wheelchair. MR HOUGH: Not dependent. A. Not dependent, but she is going to rely increasingly on a wheelchair, and by about 80 she will be dependent on a wheelchair. [JUDGE] But why would that… contra-indicate the Genium? A. They wouldn’t be using it if there is so much… Well, two reasons. It goes back to the reasons I’ve just mentioned. One, if they are going to be in a wheelchair for longer, for a period of time during the day, that means they will be using the prosthesis less and less. It is the corollary to that. Another factor why people tend to use it even less than you would expect once they start increasing the use of the wheelchair, because it involves sitting for a long period of time in the wheelchair …. People don’t sit all day, because sockets are designed for standing and walking, not for sitting. And therefore that socket digs into the groin right up here, and people find it (inaudible) balance which people create. So round about that time the use decreases (inaudible). MR HOUGH: Do you agree with Dr Soorikumaran that we have here a woman who is very determined, she is fit, she goes to the gym 3 times a week, she swims, she is still working, …. If anyone is going to make it through to more Genium legs it is her. Do you agree? A. I think it is 50/50, in my clinical experience. Q. How much is that? That only came in 4 years ago, did it not? Have you actually replaced the--- A. No, we are talking about general health, mobility, etc, etc, of a patient. Q. So there is a very good chance that she would have a Genium in the next round, but if her health goes against her, she might not? A. If her health goes against her (.inaudible.). The question is whether her health goes against her, and that is--- Q. What aspects of her health now would you say are likely to make it less likely that she is going to require a Genium? A. Age is the only thing I can think of immediately, but mobility to some extent, because even though she is extremely mobile, she is not as mobile as a person of another age, … it is the complications of immobility, whether it is chest infection, DVT, or the other things that are more common. Q. So improvements in her mobility, which you recall as an expert, using the Genium leg, would that have the impact of prolonging her life, do you think? A. I can’t answer that. I don’t know. [JUDGE] By the same process of reasoning it would, would it not? If she keeps active and keeps swimming and so on, the sort of synergy which results from that creates a better life expectancy and a lower risk of her wanting to sit in a wheelchair all the time. A. Yes, but the question I understand relates to the Genium as opposed to all other limbs. Some would argue that--- [JUDGE] I see. We have to deal with the Genium, because that is the thing she has--- I think the answer is that irrespective of which one it is, one would recommend keeping them on--- [JUDGE] So if she keeps on an active lifestyle, that is good news so far as her general health is concerned? Yes, but that is irrespective of which prosthesis, and irrespective of (inaudible.). …. On replacement at age 75/76 Q. Do you agree with Dr Sooriakumaran’s evidence this morning that it is probable that Mrs Miller, because of her good health and fitness, will require a microprocessor knee at 75? A. No, I’m not sure of that. At 75 I’m not sure. That’s my impression. I think … in about 6 years’ time or so likely to present with some increasing problems, and the whole thing will have to be reviewed. Q. I completely understand. Dr Sooriakumaran agreed with that. So we are looking at a review in 6 years’ time, which is very difficult to predict. I completely accept that. …. A. On a balance of probabilities, I think it is more likely, and we have got to think of the weight and all that of the Genium, we probably need to make a change. Q. How far do Mrs Miller’s views come into this? Do you ask the patient what she wants to do? A. We would certainly ask the patient. I always ask the patient. In fact, if I may add, in my clinics I think I spend more time trying to explain things to patients to see reason. …. What I am saying is that it has increased, because all these notes from elsewhere, all the rest of the team, they come to me to do what I say is a nasty job. [JUDGE] Let us just look at this realistically. If at the review in 6 years’ time you were to say, “I think, on the balance of probabilities, you would do better with a locked knee and don’t have another Genium”, and Mrs Miller says, “Thank you very much for your advice, but I would like another Genium”--- A. I would try and explain and show, I often demonstrate things and show--- [JUDGE] But if you are talking about privately paying--- A. In private people can go and get what they want. [JUDGE] She will be the one who decides. That is the world we live in. [JUDGE] Yes. MR HOUGH: Thank you very much, Professor Hanspal. In re-examination MR BARNES: Just a couple of points, please. Just to go back to this question of changing the Genium knee to a lightweight locking knee. When you are giving your advice to an individual as to why they should make that change, what sort of information would you give them in respect of the benefits and potential safety issues? I would expect that by that time the weight factors which Mrs Miller had articulated quite well, has pointed out, the fact that you can have a lighter limb, the fact that socket comfort and socket fit is the most important, the fact that one’s own body and the stump skin etc itself will change and have less flesh and more skin on it – all these sort of problems – and I would expect by the time of the consultation she would be already exhibiting a few symptoms that would have been presented. [JUDGE] Of what? Of difficulty of some sort or the other. Of course, it may well be, and this is purely hypothetical of course, that she may have had a few chest infections, been a bit more short of breath, these general medical conditions that creep up on all of us with increasing age. I like to explain to patients the impact that would have and how some of that can be relieved. At the end of the day, what I believe and what I try and convey to most of the patients who I have to give what may often be considered bad news, is that what is important is quality of life and doing some functional things, and that the fact that you stand and walk is not the be-all and end-all …. [Emphasis added] MR BARNES: It is difficult, of course, to peer into the future and work out when this is going to happen? A. Yes. Q. But just so that the learned judge has your opinion as to when you think, on the balance of probabilities, Mrs Miller is likely to reach the tipping point, can you say when you think that would be on the balance of probabilities? A. I think in these circumstances one tries to think in terms of what one has, and the scale of time when the change may take place. If she has a Genium, then the discussion of this sort would have to take place 6 years from now when she will be 76, approaching 77. And that is probably round about the time when I think the question will come up. If she has a leg that needs a replacement at 5 years, then--- [JUDGE] That is not really a practical possibility, is it? I don’t know when that was [JUDGE] We are dealing with the situation which we have, which is a Genium. MR BARNES: My Lord, that may well be right. Perhaps the sensible thing is to allow this witness to give his answer on the basis of 5 years, just in case there is any need to… Obviously there is a different cycle in respect of both limbs. [JUDGE] Yes. I have got that. But what you are asking him is what, in his opinion, will be the age … at which it is going to tip from the advantages of a Genium to the disadvantages? MR BARNES: Yes, my Lord. [JUDGE] That is really what you are asking. MR BARNES: It is exactly what I am asking, my Lord, yes. THE WITNESS: I think at 6 years the chance of having to move is higher than if she was on a 5-year cycle, because that is just round about the time when it is tipping. If it is 60/40 in one, it is probably 40/60 for the other. MR BARNES: So the tipping point is somewhere between the fifth and the sixth year. A. In my personal opinion. Q. No further questions. Thank you. On the Genium and the Orion generally Q. Is that a recognised advantage of the Genium leg? Q. Except she fell, did she not? On the DVDs [JUDGE] Have you seen the DVDs? [JUDGE] Without looking at … the commentary? The objective “Tug” tests to measure gains Q. …. You have seen the Tug results, I think. Have you seen those? [JUDGE] Until what? MR HOUGH: The question I asked you--- A. Could I hear the question again? On the Claimant’s own views Q. She says that the Genium frees her mind up? Q. And she gives specific examples of why it is better? MR HOUGH: (.Inaudible.) is a pretty blunt instrument, is it not? Q. Should have, or could have? A. Yes, the prosthetic works--- On why the Claimant should have kept to the Orion Q. But your clinical view was that in relation to--- On the effects of ageing and future replacements [JUDGE] Is there any reason why you think she would not be using it? [JUDGE] But why would that… contra-indicate the Genium? On replacement at age 75/76 A. I would try and explain and show, I often demonstrate things and show--- [JUDGE] But if you are talking about privately paying--- In re-examination [JUDGE] Of what? [JUDGE] That is not really a practical possibility, is it? I don’t know when that was

Conclusions in respect of Prof Hanspal’s evidence

[92]I have quoted at such length from the transcript because it is very difficult to summarise the various qualifications which the Professor made in his evidence on discrete subjects. The conclusions which I have reached, as follows, are based upon both the overall impression which I received of the witness in the witness box, and the detail of the answers to questions set out above. There are five particular observations which I would make as examples of the reasons for not finding his evidence as reliable as that of Dr Sooriakumaran.

[93]First, in my view Prof Hanspal was wrong, as a matter of fact, when he said that improvements in the Claimant’s gait would not be noticed by the non-expert eye. I reviewed the DVDs repeatedly to test this. Having done so, I disagree with him.

[94]Next, the professor questioned whether the gains from use of the Genium were proportionate to the cost, which was more than double the cost of the Orion. His disapproval was clear. I understand that for a consultant operating within the National Health Service it may be a relevant matter when deciding upon the apportionment of scarce resources. He was asked his view as to the reasonableness of the choice of the Genium, and he was of course entitled to his opinion and to answer as he did. I do not criticise him for not appreciating that in the assessment of damages, proportionality has a very small part to play (see Rialis). It is correct that if no measurable and significant gain could be shown to accrue from the use of a particular prosthesis, it might well not be reasonable for it to be chosen. However, here, both measurable and visible significant gains accrue from the Genium. Prof Hanspal did not in my judgment demonstrate real objectivity in considering the measurable gains, and his answers to counsel’s questions regarding the “Tug” tests, for example, were in my view unrealistic, unreasonable, and unreliable. In particular, in support of his view, Prof Hanspal was unable to show that the improvements which he conceded could be seen when the Genium was in use were so slight as to make the Claimant’s choice unreasonable.

[95]Thirdly, it seemed to me that the professor was unduly pessimistic in predicting a decline in the Claimant’s health with age, for which, with all respect, he gave no sound clinical reason.

[96]Fourthly, one example of a lack of balance in the professor’s evidence was to be found, in my view, in his quickness to belittle the point made by the Claimant in respect of the Genium, when she said that it gave her confidence by allowing her to step backwards when opening the door to let somebody in. He dealt with this by asking the rhetorical question “how many people walk backwards?” and thus attempting to disparage a point made by the Claimant in oral evidence which in my view had real validity, as demonstrated on the DVD.

[97]Lastly, in the course of re-examination he stated that at the time of replacement of the prosthesis he would expect the Claimant to be “exhibiting a few symptoms” which would be significant in considering the choice of replacement. When I asked him to specify the “symptoms” he was referring to, he gave a vague and, in my view, quite unsatisfactory answer: see the underlined section of re-examination above. Findings in respect of the Claimant’s needs, and the extent to which Genium is a reasonable choice to satisfy those needs

[98]The test which I have to apply is this: having made findings as to the nature and extent of the Claimant’s needs, I must then consider whether what is proposed by the Claimant is reasonable having regard to those needs. In my judgment the Claimant’s ‘needs’ in respect of an appropriate prosthesis may be summarised as follows: she requires a prosthesis which puts her as closely in the same position as she would have been if she had not suffered the amputation. It must therefore be one which:-- i) enables her to have the most natural and comfortable means of walking and normality of gait; ii) is the least tiring of the options for her in daily use; iii) is the safest in preventing loss of balance and in preventing falls following tripping; iv) gives her confidence in standing and walking; v) provides such facilities as the computerised control which allows her to step backwards when opening the door to let someone in.

[99]There is, in my judgment, an unquestionable advantage to the Claimant in overcoming her disability by the provision of the Genium. The only argument against the Genium leg, (subject to a point raised by Mr Barnes in cross-examination of the Claimant’s rehabilitation expert as to whether he genuinely regarded the Genium as the proper option for the Claimant when he first applied his mind to the problem), is cost. It is more expensive than the Orion leg.

[100]Mr Barnes put the case for the Defendant as resourcefully as it could possibly be put, dealing separately with the cost of the Genium purchased in May and with any replacement. On the former, he pointed to how well the Claimant had done with the Orion, and asked rhetorically whether it was reasonable in the light of that for her to have gone to the expense of purchasing a prosthesis which the literature describes as “very heavy” for what he characterised as a marginal advantage in mobility, stability and comfort.

[101]I have no doubt that, applying the relevant principles, the Claimant acted reasonably in choosing the Genium, and she was justified in making the purchase and in seeking to recover its cost. The difference in performance of the Genium over the Orion is neither marginal, nor simply subjective: it is quite clear to me that it gives a very perceptible degree of reassurance to the Claimant in walking confidently with it, and in preventing her from falling. It passes each of the five tests in respect of her needs which I have set out above. It gives her a significant improvement in the quality of her life. Her enthusiasm for it was in my view entirely based upon the very real difference she considered that it made, and the objective evidence confirmed that. I have no hesitation in holding that the cost paid for the purchase of the Genium this year is recoverable in full.

Replacement

[102]One then comes to the more contentious question of whether replacement costs of a Genium are recoverable at all, and, if so, for what period? Mr Barnes submitted that the evidence given on behalf of the Claimant was not satisfactory. In particular, Dr Sooriakumaran(a) had prepared another version of his report in which he had not made reference to a Genium knee at all as being of benefit to the Claimant; and

(b) had stated in the second version of the report which was relied upon by the Claimant, and which was the basis of the pleading of the Claimant’s case in respect of future costs of prostheses, that the Claimant from the age of 75 onwards would not require a costly micro-processor prosthesis, but instead a lightweight prosthesis which had the option to lock the knee. The cost of such a prosthesis is very much less than the cost of the micro-processor prosthesis.

Submissions on behalf of the defendant Trust on replacements

[103]So far as the evidence as to the likely deterioration in the Claimant’s condition, counsel for the defendant Trust made reference to Dr Sooriakumaran’s report in the trial bundle at p. 72 paragraph 13.02. “Ability: Mrs Miller’s present mobility is SIGAM Grade E. She has potential to maintain this until 75. From 75 to 80 she is likely to maintain grade D/b. Beyond 80 until death she is likely to make a great C/a. She will supplement walking with crutches and wheelchair as and when needed. Beyond 75 years she will benefit from powered wheelchair/scooter for outdoor mobility”. That evidence, counsel submitted was “supplemented by the way in which the case is pleaded” in terms of the claimed increased need for care and attention from the age of 75. He urged the court not to “take it too far: the Claimant is not immune from ageing processes”. Moreover, it was submitted that the heavy prosthesis will aggravate Mrs Miller’s constitutional back problems. In the available literature, whilst the Orion, for example, is described as “heavy” the Genium is said to be “very heavy.”

[104]The “obvious answer here” counsel said, was that Mrs Miller will be offered a different prosthesis at75. Prof. Hanspal gave very compelling evidence on this point. By comparison, Dr Sooriakumaran’s suggestion she could use the Genium to “end of life” was just unrealistic. Prof. Hanspal recognised it would be a question of clinical evaluation but thought the prospect of use of any microprocessor prosthesis would be no better than 40/60 at

76. If the court considered that it was a reasonable prospect that a replacement Genium knee would be required at 76 that should be reflected in making an award which took account of the degree of probability of that contingency. If, on the evidence, it is considered likely that, e.g., there is a 40 per cent chance, then an award should be made on that basis, although it might follow that there was a 60 per cent chance of a lighter prosthesis. After 81 the evidence of the position was so vague that no further award for a replacement could be made.

[105]Counsel then made the point that the court may not speculate about the effect of future developments:

“you are required by the law to decide the case on the basis of the current state of technology”

. Dr Sooriakumaran’s forecast in evidence that developments might lead to lighter microprocessor prostheses by the time any replacement might be needed did not stand up to scrutiny: the Genium is the latest development and it is heavier than the older models.

[106]Finally, counsel submitted that the suggestion made that Mrs Miller’s likely response to a lighter limb would be to reject it was wholly contrary to all that had been shown in evidence about Mrs Miller. She is a sensible level-headed woman who accepts advice with a responsible and positive attitude.

Conclusions on replacement

[107]Dr Sooriakumaran did appear uncertain over some matters which one might have an experienced expert to have dealt with more confidently. The issue of the two reports, of identical date but expressed in different terms, was never satisfactorily resolved in evidence. It seems quite clear that one was not simply an early draft of the other. The Claimant definitely had not used a Genium knee in 2013, and Dr Sooriakumaran must be mistaken about having seen her using one before writing the second report. I dismiss entirely any suspicion that Dr Sooriakumaran had altered his view as the result of any form of improper pressure or undue influence. I found him to be a conscientious witness who may have been honestly mistaken over exactly when he had changed that view, and what he may or may not have read before doing so. He was in my judgment transparently honest in stating that it was Mrs Miller’s remarkable reaction to the conversion to the Genium and the progress which she made with it that caused him to change his view. I accept his evidence that the circumstances are such that a replacement Genium knee may well be required at age 76.

[108]It is obviously correct that the Genium is a heavier prosthesis than, for example, the Orion. Mrs Miller spoke of the weight as “a dead weight” at one point, but that was in the context of evidence as to the Genium which was overwhelmingly positive in terms of its advantages. It is possible that with continuous use its weight may aggravate Mrs Miller’s constitutional back problems.

[109]It is also correct that the Claimant has a history of mild to moderate back problems. She is, of course, “not immune to the effects of age” any more than anyone else who is as fit as she was pre-amputation. It is however, self-evident in my view that very fit people like her, who keep taking exercise and remain active, are obviously better able to resist the degenerative effects of the ageing process than those who are not. She may find it necessary to use a wheelchair more frequently in the future, but from all that I saw and heard from her, I am firmly of the view that she will resist using a wheelchair whilst she has any ability to walk. The Genium knee has transformed her life both physically and mentally. She delights in her newly regained mobility and will, I am sure use it for as long as she is physically able.

[110]There is a possibility that changes will occur in the condition of the stump which from time to time they make it difficult to use a Genium, though there was no evidence that it is probable that at any particular point changes in the condition of the stump will occur which would make such use impossible permanently. I take the point that there is some difficulty in sitting with a Genium knee in situ because of its tendency to dig into the groin (although little if anything was made of this cross-examination of the Claimant).

[111]It is perfectly correct that Dr Sooriakumaran’s original opinion was that the lighter limb with the lockable knee was the prosthesis which the Claimant would require at age 75. However, that was a view which he formed before he had any knowledge of the Claimant’s actual use of the Genium. In my view his surprise at her remarkable progress in the few months during which she has been able to use the Genium was entirely genuine. It was on this recently-acquired knowledge, I am satisfied, that Dr Sooriakumaran based his revised opinion and prognosis.

[112]I also take account of the evidence as to the possible deterioration in the Claimant’s condition and take note of the claimed increased need for care and attention from the age of 75 in that context. However, as I have already indicated, I found that Prof Hanspal’s pessimistic prognosis lacking in substance. There is no more evidence that the Claimant in this case is likely to suffer any significant deterioration in her health than there is in the case of any fit and healthy woman of her age. Prof Hanspal was quite unable to point to anything specific when asked to do so in this context. The increased need for care and attention from the age of 75 is entirely comprehensible as a result of the amputation. It may very well be that the Claimant will not find it possible to stand up and walk as much as she would wish. I think however that she would profoundly disagree with Prof Hanspal’s view that standing and walking are not the “be-all and end-all”. There was no opportunity for her to deal with this in evidence, but I am entirely confident that she would emphatically have demurred.

[113]No sufficient regard was given by Prof Hanspal in my view to the very determined nature of the Claimant, to her remarkable persistence in achieving mobility, and to her complete disdain for anything which limits her independence. Character has an importance of its own in this context. The evidence of past determination is, it seems to me, the best evidence of future determination.

[114]There is a possibility, that whatever Mrs Miller’s own view may be, that she will be recommended a different prosthesis at 76. I take account of Prof. Hanspal’s evidence on this point. Dr Sooriakumaran’s suggestion she could use the Genium for life may indeed be optimistic, but it seems to me that it is wrong to characterise it simply as unrealistic. If the Claimant remains active and fit, and remains of the very positive state of mind she has towards the Genium prosthesis, it may indeed be a possibility, even if it may, on Prof. Hanspal’s evidence, be a faint one.

[115]Prof. Hanspal’s evaluation of the prospects of use of a microprocessor prosthesis would be no better than 40/60 at 76 was not put to Dr Sooriakumaran, as Prof. Hanspal gave it for the first time when he was cross-examined. Dr Sooriakumaran’s evidence was significantly more positive. On the whole of the evidence, I do consider that there is a more than reasonable prospect that a replacement Genium knee may be required at 76. The more I examined Prof. Hanspal’s reasons for pessimism over the possibility that a Genium knee would be of value to her at 76, the less convincing I found them. It will, of course, be the decision of the Claimant as to whether or not she follows advice on this. Upon the basis that she maintains her current level of good health, and there is very little if any evidence which makes that improbable, I think she is entirely likely to be fit and active at 76. If so, I am firmly of the view, having heard her and seen her, that she will not wish to use a wheelchair any more than is absolutely necessary, but will indeed wish to have a new Genium. In such circumstances it seems to me that the very limited reasons advanced on behalf of the defendant Trust for regarding such a decision as unreasonable (and in fact Prof. Hanspal did not go so far as to suggest that it would unreasonable) do not stand up to scrutiny. The Claimant is entitled to be in a position as close to that she had before the defendant’s tortious conduct rendered her disabled. That meant that at 75 she would be able to walk on both legs and not need to use a wheelchair. Apart from the fact of her amputation, there is no reason to believe she would have needed a wheelchair at all at 75. As matters stand, the most that can be forecast is that she may need increased use of a wheelchair as the result of the combination of her age and her injury.

[116]Whilst I also have to take account of the evidence that, instead of a Genium, a lighter leg may be required, I must have regard to what I think her own wishes will probably be in six years’ time and whether those wishes will be regarded as reasonable or unreasonable. I therefore have to make an award which takes account of the degree of probability of the relevant contingencies. Doing the best I can it seems to me that the prospects are clear: at 76, absent unforeseeable events resulting in a dramatic deterioration in her health, the Claimant will undoubtedly wish to have a replacement Genium knee. It may be that her clinical advisers will disagree with her choice, but, if the Claimant finds it her preferred option, it cannot possibly be said to be “unreasonable”: as it most closely approximates to her pre-accident condition. I therefore allow the full cost of a replacement Genium knee at that stage.

[117]After the age of 82, however, I agree with counsel for the defendant that the evidence of the position is less clear. The weakness of the defendant Trust’s position is that the reasons given for pessimism by Prof Hanspal were so vague and insubstantial. They rely essentially on the fact that in the joint statement Dr Sooriakumaran made certain concessions on increased need for wheelchair use. That has, however, been overtaken by his oral evidence. It is very much to be hoped that Dr Sooriakumaran’s optimistic view proves correct, but I have to make a decision based on the whole of the evidence, and the reservations previously expressed. I also entirely accept the point that the court may not speculate about the effect of future developments. In the circumstances, it seems to me that the best that can be done is to award 60 per cent of the cost of another Genium and 40 per cent of the cost of the lighter leg with a lockable knee joint. Thereafter, whilst I cannot discount the further replacement of a Genium altogether, I think the balance must tip to no more than a 20% possibility with a provision for 80% of the cost of the lighter leg. I should add that the different five- and six-year cycles for replacement of the different limbs cannot be accommodated by any adjustment of the figures, and it was not suggested at trial that they could be.

The ‘Second leg’

[118]This aspect of the claim has been agreed. As I understand it the revised figure is £66,846.

The ‘water limb’

[119]Counsel for the Claimant has confirmed in his Note of his closing address that the claim for this item is withdrawn. Had it not been withdrawn, I would have disallowed it for the reason that the evidence given by the defendant Trust’s rehabilitation expert on this issue was not convincingly contradicted.

Future aids

[120]These items are agreed in the sum of £14, 639, with the exception of a claim for four instalments of a deposit of £1,899 for a Mini Countryman car. The Claimant’s case is put as follows “the Claimant has recently purchased a Mini Countryman under the Motability scheme. She will continue to use the scheme, as long as it remains available. The cost of the deposit is claimed, no further costs. It is accepted that the mobility allowance foregone is broadly equivalent of transport costs in any event. … The claim for a car under the Motability scheme is not allowed on the basis that Mrs Miller would have had a car in any event, and would have incurred some motoring costs. Both these propositions are agreed, but the Schedule recognised the ‘in any event’ costs, but suggests that these would have been broadly equivalent to the mobility allowance foregone (the mobility benefits are in excess of £2500 pa)”.

[121]The problem is that the arithmetical basis of the claim is simply not made clear. There is an obvious personal benefit to the Claimant in the simple fact of having a motor vehicle. The Claimant has had the benefit of the Motability scheme which has allowed her to obtain a motor vehicle at a fraction of the cost which she would otherwise have been obliged to pay. Counsel for the defendant Trust submitted that it was highly likely that the Claimant would have had to have spent a figure approaching that claimed on a car in any event. Whilst it is true that she has had to forfeit the benefit of the mobility allowance, as she would otherwise not be entitled to participate in the scheme, counsel for the Claimant simply did not explain convincingly how any net loss could be shown. On that basis this item cannot be allowed.

Past accommodation

[122]Until the time of her admission into hospital in 2007, Mrs Miller had lived in a small flat in Ealing which she was privately renting from her daughter-in-law. It was reached by climbing two flights of stairs. After her leg was amputated, the flat was unsuitable, and she moved to her present rented accommodation in Barnes. This item is now agreed at £10,000.

Future housing

[123]Before her discharge from hospital, Mrs Miller told the accommodation experts that she paid £375 per month for the flat in Ealing: no doubt that was a preferential rent for family reasons. The flat was reached by two flights of stairs separated by a landing. Inside the flat, there was a kitchen, sitting room, a single bedroom and a bathroom. After her discharge from hospital she was unable to return to the flat as she could not manage the stairs and needed to be near her family for support. She was discharged on 16th April 2007 and moved into the house next door to her son in Barnes, where she still lives. The house is on two floors. On the ground floor there is a sitting room, dining room, and kitchen. On the first floor there are two bedrooms and a bathroom. She pays £1,250 a month, although the rent will be increasing to £1,425 from 1st October 2013.

[124]Just before her discharge, the Occupational Therapist from Richmond Council came to assess the house. She arranged for various types of equipment to be installed, such as a shower seat and handrails to be put into the flat and also supplied a commode as there was no lavatory downstairs.

[125]When she first moved in, Mrs Miller’s son turned the dining room into a bedroom by putting in a single bed. She stayed on the ground floor for about five weeks or so until she could get up and down the stairs. The only problem that she had was that there was a big step into the house which was very difficult for her. She has not had any other adaptations made to the house.

[126]Mrs Miller’s son is intending to move to Tunbridge Wells in the near future. She says that she intends to continue living in London, and would prefer to stay in Barnes, where she has made friends and feels at home, and where she appreciates the proximity of Richmond Park and the river, and the generally pleasant ambience. She recognizes that she does need to find a property which is more suitable for her and which will enable her to live more independently. She would consider moving closer to her son in Tunbridge Wells when she is older and requires more emotional support from them. It is impossible to be sure but she thinks she will move in about 5 years’ time.

[127]In cross-examination she said that it had been in 1993 that she had moved into the flat in Ealing which belongs to her daughter-in-law. “A. I moved to Barnes because my son lives there, which is handy for me. Q The reality is that it is nicer to live in Barnes than in Ealing and Acton? A Yes, it’s a nice place. I like it. I have lived there 7 years. It is not ideal – I only have a loo upstairs, and going up and down the stairs is very unsafe. But it’s very reasonable [in terms of cost] for Barnes. I would not swap it for a purpose-built place in, say, Acton. By the end of the year I’d like to move because the rent is going up and my son and family are moving. I do want to stay in Barnes, though, I really like it there.”

[128]It is agreed by the parties that Mrs Miller’s present accommodation is unsuitable for her needs. It is difficult to use a wheelchair as the doors are too narrow. The bedroom, bathroom and lavatory are upstairs. The staircase is too narrow for a stair-lift to be fitted. The property is difficult to access by car, as there is no covered parking space, and also by foot as there are steps. The bathroom and kitchen are also unsuitable for wheelchair use.

[129]Mrs Miller wishes to stay in London until she is about 75, but then wishes to join her son and grandchildren in Tunbridge Wells. The parties adopt very different solutions to providing suitable accommodation in London and Tunbridge Wells respectively. Mrs Miller puts forward her claim on the basis of renting a suitable flat, initially in Barnes, but then moving to Tunbridge Wells. The point is made on her behalf that Mrs Miller would have stayed in rented accommodation had she not suffered this injury. She does not seek the capital cost of an appropriate property, because of the short-fall which would arise from any conventional calculation of such cost following the case of Roberts v Johnstone. This would calculate the purchase of accommodation by reference to the loss of use of capital, taken as 2.5 per cent of the capital value multiplied by the lifetime multiplier. In cases such as this, where there would be a relatively low multiplier, the calculation would inevitably lead to so significant a short-fall that Mrs Miller would need to make use of the damages awarded to her in respect of other heads of claim in order to subsidise the purchase of property. Thus the bulk of the total award would be tied up in the capital value of the property, with only a fraction available for care, aids, and other things, provision for which is made necessary by her disability.

[130]Despite this, the defendant Trust proposes that damages should be awarded on the basis of the purchase of property. The problem is that, for the reason I have just given, the Roberts v Johnstone calculation would not provide enough money. Indeed, on the Defendant’s case, Mrs Miller would have to use the whole of her damages to buy and adapt a house (purchase of a house for £660,000 with adaptations of £120,538.37, before she attempts the move to Tunbridge Wells). Nothing would then be left, for example, for a suitable prosthesis.

[131]Mr Barnes very responsibly conceded, however, that if I were to conclude (as he agreed I was entitled to on the evidence) that on the balance of probabilities Mrs Miller will continue to rent a property, and were I to conclude that that choice was a reasonable one, then that would be an appropriate way to calculate her loss.

Conclusion as to the basis for the calculation

[132]Having regard to the evidence agreed between the parties from the experts on each side as to the prohibitive cost of purchase of suitable alternative accommodation, but more particularly to the fact that there is absolutely no reason to suppose that Mrs Miller would not wish to continue to rent, I have reached the firm conclusion that future housing costs must be calculated upon rental basis, and not outright purchase, and that such a basis is entirely reasonable. By contrast, outright purchase would not be a reasonable solution to the problem.

Assessment of the increased cost of renting appropriate accommodation

[133]In that case, in reality, counsel submitted, it was likely to be agreed on both sides that the issue is the increased cost. To determine the “base figure” I have to decide what would have been spent in any event, that is by reference to the rent of a one-bedroomed flat in the Ealing area: that would have been, Mr Barnes submitted, £900-£1,100 per calendar month. Counsel did not accept that the sum of £375 per month, which the Claimant was paying at the time of her amputation, was an appropriate figure to take as a base figure. He observed that there was in fact no evidence of the amount of rent, and of the daughter-in-law’s ownership, in any of the Claimant’s witness statements (although it is referred to on a hearsay basis, in, for example, the reports of Ms Barsby and of the accommodation experts). It was all “vague and uncertain”. I should find either the market rent now for such a flat as a base figure, or “a point between the £375 per month seven years ago and the market rent now”.

[134]So far as the base figure is concerned I have no hesitation at all in taking as a starting point the figure of £375 per month, and find as fact that that was the cost to the Claimant of accommodation immediately before the incident which led to the amputation. The Claimant was a transparently honest and truthful witness, and the fact that the evidence of the amount was to be found in what she said to the experts (e.g. at p. 29 of the defendant Trust’s bundle in the report of Mr Stephen Fisher RIBA) rather than in her witness statement in no way renders the evidence vague or uncertain. Mrs Miller was able to give the address to Mr Fisher (52 Waldegrave Road, Ealing) and he was at liberty to ask her any questions about it he wished, had he been in any doubt about the reliability of what she said to him, or to have made his own enquiries as to rental values in Ealing in 2007. Mrs Miller was not cross-examined in any detail about this, and her assertions to the experts about the Ealing flat were not challenged.

[135]Had the Claimant not been injured, I have no reason to believe she would have moved from that flat until at least the age of 75 or so. Would that rent have increased? The evidence we have about the flat at the moment came from the Claimant: she said that her daughter-in-law still owned it, and that it was let, but nothing was said about the present rent. Even bearing in mind that it was owned by a member of the family, and the fact that there is no evidence of the tenancy agreement and of any provisions for rent reviews, it seems to me that some allowance should be made to reflect the probability that by now there would have been a modest agreed increase. The only evidence about increases in rent given at the trial was about the rent for the house in Barnes. That is due to increase in October this year from the figure of £1275 per month, at which it has been set since the date of the amputation, to £1425 (see Fisher, ibid). Thus the increase will be of £150 or just under 12 per cent. Given that the Ealing flat is still owned by the Claimant’s daughter-in-law, I think that an increase of 10 per cent would be the most to allow for, giving a base figure of £412.50.

Future moves: Barnes and Tunbridge Wells

[136]The next point for decision is at what point the Claimant is likely to move. The probability, it is submitted for the defendant, is that she will stay in the house at Barnes, inconvenient for her in terms of proper accommodation as it is, despite the rent increase and even after her son and his family move to Tunbridge Wells, as it is anticipated they will, later this year. No doubt, it is submitted, the Claimant would move forthwith to another property in Barnes which offered accommodation appropriate to her disabilities, but that would be an unjustifiable bonus to her, as, it is suggested, Barnes is a more desirable area in which to live than Ealing.

[137]It seems to me that the events of the coming autumn – the conclusion of this litigation, Mrs Miller’s son’s move, and the increase in the rent of her house in Barnes – are likely to result in a decision being taken by the Claimant by the end of the year at the latest, to move to more suitable accommodation. I have no doubt that she will seek to find such accommodation within her present neighbourhood in Barnes if at all possible. Whether it is objectively a more desirable place to live than Ealing is, it seems to me on the evidence, neither here nor there: Mrs Miller has put down roots in the neighbourhood as a consequence of having to move there as a result of the negligence of the defendant Trust. Whilst that might not entirely dispose of a “betterment” argument on the part of the defendants, much more significantly, the agreed expert evidence is that rental values are little different in Ealing and Barnes.

[138]Mr Fisher dealt with the kind of accommodation which will be suitable for the Claimant in her disabled state at paragraph 5 of his report (p.32). “5.5 … I would advise that Mrs Miller relocates to a three-bedroom bungalow where the rooms can be allocated to provide her with a bedroom and with the spare bedrooms being converted to provide storage space and an accessible bathroom. It is also likely that a minimum of a three-bedroom bungalow would be required to provide suitable circulation space.”

[139]It is my understanding that the experts and the parties agree that a ground floor flat would be just as suitable as a bungalow. Indeed, agreed figures have been produced by the experts which reflect the comparative costs of three-bedroom flats in Ealing or Acton and Barnes. Essentially the range is between £2,700-£3,000 per calendar month in Ealing, for example, and £2,800-£3,100 for a three-bedroom flat in Barnes. The distinction is therefore one without a great deal of difference. Inevitably settling upon an exact figure is quite impossible, and the reality, as so often, is that the Claimant will either be slightly under-compensated or slightly over-compensated by the final figure. However, I do not think any injustice will be done to either side by taking £2900 as the monthly cost of the Claimant’s needs for alternative accommodation until age 75 or thereabouts. Thus the increased cost which results from the negligence of the defendant Trust is £2,900 minus £412.50 = £2,487.50.

[140]The issue then arises as to what the situation will be from age 75. Whilst it is impossible, again, to be exact, the probability is that the Claimant at that age will move to live close to her son and his family in Tunbridge Wells. If she had not been injured, the likelihood is that she would have remained in Ealing. After all, her daughter and granddaughter lived, and still live nearby, in Acton. It was never suggested that, had she not suffered the amputation and remained fit and active, that she would have moved permanently to Tunbridge Wells. Thus the base figure to take is again £412.50. In order to accommodate her needs, a suitable three-bedroomed flat in Tunbridge Wells would be available for £1,800-£2,000. Thus, it seems to me, the fairest figure to allow is £1,900 minus £412.50 = £1,487.50 from age 75.

Therapies in future

[141]Dr Sooriakumaran and Prof Hanspal agreed in their first joint statement (section 10) that it was recognised that in above-knee amputees there is a higher incidence of musculoskeletal changes in lower spine and major lower limb joints.Pam Barsby also referred to the increased incidence of wear and tear to joints in people using artificial limbs which may lead to back pain or joint and muscle pain, saying that the Claimant will require regular access to physiotherapy.

[142]The particular heads of claim may be summarised as follows.(1) The cost of future physiotherapy made necessary by the amputation. Ms Barsby’s report divides this into five discrete matters. (a) An intensive course of advanced rehabilitation to improve the Claimant’s ability to walk over rough ground and uneven surfaces. (b) Rehabilitation following change of prosthesis. (c) Initial motivational fitness training with quarterly reviews. (d) Musculoskeletal physiotherapy. (e) Physiotherapy in respect of major joint replacement in the event of major degenerative changes in a joint.

(2) Podiatry.

(3) “Alexander technique” training

[143]The way these claims are put on behalf of the Claimant is this. It is vital for the Claimant to maintain her strength, fitness and mobility to make sure that she remains fit and strong enough to keep using the Genium leg. The rehabilitation experts agreed in their joint statement that there is a risk of musculo-skeletal damage and therefore physiotherapy is needed. The podiatry claim was essentially agreed by the care experts: the “tenor of the joint statement is that agreement was in favour” of this head. Ms Saltrese had said that the Alexander technique was helpful. There was a paper from Southampton University explaining it.

[144]On behalf of the defendants Mr Barnes submits that in respect of heads 1(a) and 1(b) if it is held that provision of the Genium is recoverable, then “advanced rehabilitation” will be subsumed in the claim for rehabilitation following the change in prosthesis. £4,000 should be allowed and no more.

[145]In respect of Claim 1(c) as to motivational fitness training: it is submitted that this was quite unnecessary as the Claimant says she already goes to the gym three times a week and also goes swimming she can hardly be said to require any motivation.

[146]In respect of Claim 1(d): musculoskeletal physiotherapy: it is submitted that this would very probably have been required to some extent in any event, given the Claimant’s pre-existing back problems. The claim should be discounted by half to reflect this.

[147]In respect of Claim 1(e) it is submitted that there is no evidence of the need for physiotherapy following major joint replacement.

[148]As to claim 2, for podiatry, Mr Barnes said that there was no real evidence of current foot problems, and the claim was too vague.

[149]In respect of claim 3, for the Alexander Technique, Mr Barnes made the point that it was extraordinary that this was a claim not suggested by the physiotherapist instructed on behalf of the Claimant, but by the care expert. It was all too vague and speculative.

[150]Having considered the evidence and the points made on each side, I consider that, as to heads 1(a) and 1(b) above, for the reasons given Mr Barnes, only £4,000 should be allowed. 1(c) should be disallowed for the reasons given by Mr Barnes. As to 1(d) the claim for musculoskeletal physiotherapy must be discounted by 25 per cent to allow for the probability that in the future a limited degree of such treatment would have been necessary to deal with the pre-existing back problems. As to 1(e) I do not consider that this claim is sufficiently substantiated by the evidence.

[151]On the issue of podiatry the joint statement of the experts (at p. 265) makes it quite clear that they agree on the need for this. Despite this, in the counter-schedule it was said on behalf of the defendant Trust that “the claim is denied in circumstances where the Claimant did not describe any pain in her right foot when asked about pain by Ms Wright”. The claim is for a modest amount in respect of foreseeable future problems. It is allowed.

[152]As to the Alexander Technique, the evidence was that of Ms Saltrese at p. 119, i.e. that it:

“… has been identified as a valuable approach in the management of back problems. For this reason I recommend that Mrs Miller is provided with funding to undertake an introductory lesson. If she finds this useful, further lessons may be arranged.”

[153]This was very vague. There is simply no evidence that this is needed in respect of such additional back problems as the Claimant may suffer beyond her pre-existing condition. I did not consider that this head was sufficiently substantiated by the evidence. It is disallowed.