Tait v Gloucestershire Hospitals NHS Foundation Trust [2015] EWHC 848 (QB)

Case No 2BM90079[2015] EWHC 848 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Venue BIRMINGHAM CIVIL JUSTICE CENTRE
33 BULL STREET
Venue BIRMINGHAM B4 6DSDate 31st March 2015
Before
HIS HONOUR JUDGE MCKENNA
Between
Mrs Heather Elizabeth TaitClaimantGloucestershire Hospitals NHS Foundation TrustDefendant
Edward Bishop QC Counsel for Claimant instructed by Shoosmiths Access Legal SolicitorsRobert Seabrook QC Counsel for Defendant instructed by DAC Beachcroft LLP SolicitorsHearing Hearing dates: 25 th, 29 th and 30 th September, 1 st and 2 nd October, 2014and 23 rd February 2015
JUDGMENTHis Honour Judge McKenna :Introduction
[1]In this action, the Claimant, Mrs Heather Elizabeth Tait, whose date of birth is 22nd February 1981 and who is therefore now 34 years of age (28 at the time of the events with which this claim is concerned) seeks damages from the Defendant, the Gloucestershire Hospitals NHS Foundation Trust, in respect of injuries caused as a result of negligently delayed spinal surgery which eventually took place in the early hours of 8th July 2009.[2]Judgment was entered for damages to be assessed on 27th November 2012 and this Court is therefore only concerned with the quantification of those damages.

Background

[3]The Claimant is married and has three children: Joshua whose date of birth is 29.9.05, James, whose date of birth is 9.3.07 and Lily whose date of birth is 17.5.13.[4]The Claimant and her husband met in the late 1990s when they were both working in media related jobs, she as a lighting technician and he as a conference organiser. After various jobs in the television and theatre world, the Claimant and her husband, Russell, worked together from about 2001 onwards as partners, organising and managing conferences for companies.[5]In 2003 they incorporated their conference organising business as Crystal Clear Productions Limited (“CCP”) with profits and drawings being shared equally.[6]Whilst still working for CCP, the Claimant started up a photographic business in March 2007, Heather Tait Photography (“HTP”) initially photographing toddler groups and nurseries and becoming the main photographer for a local magazine “Family Time.” The income from this business supplemented the family income, but as the photographic business developed, the Claimant did less for CCP.[7]The Claimant suffered from low back pain from about 2007 onwards as is apparent from, for example, the entries in her medical records for the 12th February 2007 at page 1/143, 16th February 2010 at 3/442 and 31st March 2010 at 3/456 and sought regular treatment from a chiropractor.[8]On 5th July 2009, whilst staying with her parents-in-law, the Claimant suffered an acute episode of severe low back pain and was taken by ambulance to the Cheltenham General Hospital. Despite suspicions on the part of various clinicians that she might have nerve root compression caused by disc prolapse, and a plan that she should have an MRI scan, the Claimant was in fact discharged on 6th July 2009 without an MRI scan having taken place and she returned to her home in Sutton Coldfield.[9]Her condition deteriorated over night and the following morning she called a GP by whom she was sent to Good Hope Hospital in Sutton Coldfield where she was admitted. It was suspected that she had cauda equina syndrome. An MRI scan revealed a massive prolapsed disc at L5/S1. The Claimant then underwent emergency spinal decompression surgery at the Queen Elizabeth Hospital in Birmingham in the early hours of the 8th July 2009.[10]It is the delay in diagnosis and treatment of the Claimant’s prolapsed disc that has caused the severe injuries with which this court is concerned.[11]The Defendant has admitted that the Claimant should have had an MRI scan at the Cheltenham General Hospital and that surgery should have been performed on 6th July 2009 and there is agreed evidence from the spinal surgeons (2/408) that if the Claimant had had surgery on that date then she would not have gone on to develop the severe cauda equina syndrome from which she now suffers but would have had :-(1) some mild bowel and bladder symptoms that would not have impeded her ability to work and live a relatively normal life;(2) some residual disturbance of sensation in the perineum, but not the severe loss of sensation she currently has; and(3) mechanical back pain caused by degenerative disc disease at least at the same level as she had prior to her suffering her cauda equina injury and some residual weakness in the left leg which would have prevented her doing heavy lifting and heavy manual work. It would not, however, have stopped her pursuing a career in photography or event management and / or organisation.[12]It is common ground that the Claimant now has cauda equina syndrome, is doubly incontinent, has suffered a loss of sexual sensation and some psychiatric damage and some additional leg weakness and pain beyond that which she would have experienced in any event, the exact extent of which however is not agreed.[13]A significant issue between the parties is whether the back pain of which the Claimant complains is mechanical back pain consequent on degenerative disease or neuropathic pain consequent upon the delayed surgery. This issue is important both because, to the extent that the Claimant’s physical limitations other than those attributable to her double incontinence are attributable to mechanical degenerative disease, they are not consequent upon any breach of duty on the Defendant’s behalf and so do not sound in damages and so her claim, for example, for domestic assistance and equipment would be reduced, and because of the Defendant’s reliance on the issue to suggest that the Claimant’s claim more generally has changed over time and or has been significantly exaggerated.[14]An allied issue is the extent to which the Claimant’s life and career would have been impeded by the mechanical back pain that she would have continued to suffer from even if the surgery had been performed when it should have been since, as I have already recorded, it is common ground that even if the surgery had been timely, the Claimant would have suffered some mechanical back pain and leg weakness which would have affected her ability to perform heavy manual tasks.[15]There is a useful summary of the financial consequences of the parties respective positions at 1/76 albeit that during his opening, leading counsel for the Claimant conceded that some downward revision was called for and, in the event, as it seems to me, the financial consequences of the neuropathic pain issue, if I can so describe it, are not so significant as at first appears. It can be seen that a further significant issue between the parties is loss of earnings, both past and, more particularly, future since, whilst the Claimant’s actual current and future earning capacity has been agreed, there is a substantial dispute as to the question of how, but for the negligently incurred injuries, the Claimant’s career as a photographer would have progressed.[16]In the circumstances, it seems sensible to deal with the issues raised in this claim in the following order:-(1) Does the Claimant suffer from neuropathic pain and if so to what extent?(2) How would the Claimant’s life and career have been impeded by the mechanical back pain that she would have continued to suffer from even if the surgery had been performed earlier?(3) How would the Claimant’s career have progressed and what would she have earned but for the injury caused by the negligently delayed surgery?(4) In the light of the above, what are the financial consequences in terms of the quantification of the claim?

Evidence

[17]The Court has heard evidence from the Claimant herself and from the following witnesses whose evidence was principally concerned with the question of the Claimant’s likely career progression as a photographer:- Phillip Bray Joanna Buick Nicola Clement Jonathan Harrison Nicola Gough Lisa-Joy Peake Katherine Pearce Julia Robinson Helen Roscoe Catherine Sealy Glenn Taylor Nathan Tromans Katherine Winner[18]So far as expert evidence is concerned the Court has read reports from the following experts whose evidence was agreed and who therefore were not required to give oral evidence:- Psychiatric Experts Dr Trevor Turner for the Claimant Dr Paul Dedman for the Defendant Colorectal Experts Miss Carolynne Vaizey for the Claimant and Professor Scholefield for the Defendant Urological Experts Mr Julian Shah for the Claimant and Mr Jonathan Ramsey for the Defendant.[19]In addition, oral evidence was heard from spinal experts; Mr James Wilson- MacDonald, Consultant Orthopaedic Surgeon for the Claimant and Mr. Paul Byrne Consultant Neurosurgeon for the Defendant; from care and occupational therapy experts Ms Emma Way (formerly Cullen) for the Claimant and Mr Albert Pace for the Defendant; from employment experts Mr Keith Carter for the Claimant and Mrs Mary Groves for the Defendant and from accommodation experts Mr. Cumbers on behalf of the Claimant and Ms Jane Bowden for the Defendant, all of whom have, of course, produced written reports and held joint meetings with a view to narrowing issues.[20]There are a number of helpful summaries of the various symptoms suffered by the Claimant in the trial bundle both in the various witness statements prepared by the Claimant herself and in the reports of the various medico- legal experts instructed by the parties. A particularly helpful description is to be found in the Condition and Prognosis Report of Miss Carolynne Vaizey dated 22January 2013 at P2/496 as follows:
“BOWELS Mrs Tait described her bowls as “vile”
. Prior to her cauda equina she said she passed a stool once a day and never thought about her bowels. Now she either has diarrhoea with incontinence or she has to digitate to pull her stools out. Before she was pregnant she was, on advice, taking Picolax once a week. This gave her loose stools and leakage for the following 48 hours. Enemas make her faint. She now takes Senna Max Strength which is not very effective and she said she suffers with stomach cramps which makes her anxious as she does not know what they are for (constipated, diarrhoea or pregnancy related.) It takes quite a while to work and when it does it often comes as hard stools to begin with which are difficult to pass so she has to manually evacuate these and then she gets quite bad diarrhoea for anything up to several days after. Because of this she has not been using it that often and has left up to two weeks in-between using it as it is just so uncomfortable and awkward to take. Several things can cause Mrs Tait to leak – it can be changing the bed, putting the children’s shoes on to go to school, squatting down to empty the washing machine or just getting in the car. She said she never knows when the leakage is coming and doesn’t know it is happening. Sometimes she does not know it is happened until she can smell it or feel it on the inside of her leg. Mrs Tait recently had a massage and this made her to empty her bowels – she was mortified. The leakage can also happen during intercourse so she said she tends to put her hand down at the anus as warning that something may have happened. She said she is constantly panicking during sex. The leakage also takes place at night. She also leaks on coughing and sneezing. Mrs Tait only knows that she has leaked when she feels stool dripping down her legs or smells faeces. If she has a bout of diarrhoea she is totally housebound. This happened recently when the boys caught a vomiting and diarrhoea infection. The Taits have toilets both upstairs and downstairs – Mrs Tait said she uses the one upstairs so she can use the shower afterwards. She said that she can leak at night so uses protective pads in bed and still sometimes uses the children’s bedtime pants to sleep in. She said:
“I don’t like Russell seeing my pad so will wear pyjamas and will often wake in the night to go to the toilet and change the pad. I find I don’t sleep very well, and feel embarrassed if Russell touches me or if the children see I am wearing a pad. I don’t like any of them knowing this.”
Mrs Tait’s incontinence score is: 17/24 The St Mark’s Score Never Rarely Sometimes Weekly Daily Incontinence for solid stool 0 1 2 3 4 Incontinence for liquid stool 0 1 2 3 4 Incontinence for gas 0 1 2 3 4 Alteration in lifestyle 0 1 2 3 4 NO YES Need to wear a pad or plug 0 2 Taking constipating medicines 0 2 Lack of ability to defer defaecation for 15 minutes 0 4 Never No episodes in the past 4 weeks Rarely 1 episode in the past 4 weeks Sometimes >1 episode in the past 4 weeks but< 1 a week Weekly 1 or more episodes a week but < 1 a day Daily 1 or more episodes a day Add one score from each row Minimum score =0 = perfect continence Maximum score =24 = totally incontinent Personal example problem: Mrs Tait has been asked about the missed appointments – she said she thought the physiotherapy department had the wrong address. BLADDER Mrs Tait has stress incontinence. She said that she leaks on coughing and sneezing. She did self-catherise but this led to recurrent urinary tract infections. Now she guesses when her bladder is a bit full and then squeezes and pushes. She does not think she empties fully. With the pregnancy she feels her bladder has been much harder to control and has started using the catheters again recently a few times a day as she has had some increased difficulty passing urine. She is seeing someone in Urogynecology at the Womens Hospital to discuss this. WALKING Mrs Tait feels a weakness of her left leg when she walks any distance. After about 100 metres she said that the leg seems to drag and she gets a limp. With the pregnancy she is also having issues with her left leg; it feels much weaker than normal and she has found that she cannot walk very far at all before she is struggling with her balance. It still feels numb in the same way but bearing her weight seems to be a bigger problem. NUMBNESS Mrs Tait said that she has saddle numbness slight worse on the left than on the right. PAIN Mrs Tait has problems standing for any length of time and she is therefore unable to queue up for anything. She also has a pulling sensation which feels as if her organs are going to fall out of her back passage. This puts her off walking even if she is having a good day. SEXUAL INTERCOURSE Mrs Tait and I had a very emotional discussion about sexual intercourse. She said she is unable to feel any sensation. She has not been able to discuss her problems in full with her husband. She said this was initially inadvertent but she now realises that she finds it easier to keep “a part of her feelings from him.” In reality she then said she knows he would be devastated if she said that she felt nothing every time they had sex. I asked her if she would prefer that I did not include this part of our conversation in the report. She said that she keeps much of her medico- legal correspondence away from her husband. Mrs Tait described her previous sexual relationship with her husband – -sex was previously a major part of their relationship - she said their relationship was “tempestuous” with many arguments which were then resolved with passionate sex Mrs Tait said that she had initially thought that “other areas would compensate for her lack of genital sensation”. This has not happened and she now feels that, to a degree there is no point in having intercourse. Additionally Mrs Tait has regular bladder leakage during intercourse. She also has bowel leakage if she has taken Picolax within the previous 3 to 4 days. She had passed some loose stools during intercourse but has also at times passed a fully formed stool. She then has to deal with the problem and her husband goes very quiet. She became very emotional and said that all of the male doctors she has seen have brushed her sexual problems off and have not had any understanding. Mrs Tait said that her lack of enjoyment of sexual intercourse has made her feel that her closeness with her husband has been jeopardised. She has tried to make up for this in other ways. Her need to have this baby may have been in part due to her feelings of inadequacy.” “I don’t like Russell seeing my pad so will wear pyjamas and will often wake in the night to go to the toilet and change the pad. I find I don’t sleep very well, and feel embarrassed if Russell touches me or if the children see I am wearing a pad. I don’t like any of them knowing this.” Never No episodes in the past 4 weeks Rarely 1 episode in the past 4 weeks Sometimes >1 episode in the past 4 weeks but< 1 a week Weekly 1 or more episodes a week but < 1 a day Daily 1 or more episodes a day Add one score from each row Minimum score =0 = perfect continence Maximum score =24 = totally incontinent Personal example problem: BLADDER WALKING NUMBNESS SEXUAL INTERCOURSE

Mrs Tait described her previous sexual relationship with her husband –

[21]So far as the Claimant’s psychiatric injury is concerned, in their Joint Psychiatric Report 2/462 which followed a telephone discussion on the 4th April 2014, Dr Turner and Dr Dedman agreed that in the aftermath of the index event of 2009 the Claimant developed psychiatric symptoms consistent with an adjustment disorder, as outlined in section F43.2 of the International Classification of Diseases (ICD-10) and that this consisted of predominantly depressive symptoms within the broader categorisation of Adjustment Disorders.[22]They also agreed that the consequences of the Claimant’s physical limitations that persist have been the development of a marked lack of social confidence, a degree of social withdrawal thereby, a psychological fixation (when going out) to have ready access to a toilet (because of fears of leakage), alterations in her working and social activities, ready tearfulness, and a reduced sense of her own competence.[23]They also agreed that the Claimant might develop psychological reactions from time to time secondary to her ongoing physical status and limitations (e.g. depressive feelings or anxiety attacks) and would be more vulnerable to any kind of any further injury to herself or her children but that her current psychological state was not such as, in itself, to impair her ability to work.[24]Finally they also concluded that at present the Claimant’s mental state was not reflective of a significant psychological disorder although Dr Turner considered that her pattern of intermittent anxiety and depressive symptoms was not inconsistent with a Mixed Anxiety and Depressive Disorder F31.2 ICD-10, but fluctuated depending on her physical and social situation.[25]There is a good deal of evidence from the parties’ respective spinal experts and that evidence has, as it were, developed over time.[26]Mr Wilson-MacDonald for the Claimant in his Condition and Prognosis Report following an examination on 6 July 2012, 2/255, under the heading “Present Symptoms” records as follows “49. After the surgery initially she did not experience the back pain. However she has had pain now in the back and radiating to both hips, more on the left than on the right radiating down as far as the left knee. Most days the pain scored 7-8 out of 10. At worst 8 out of 10, at best 4 out of 10. She cannot take strong painkillers because this makes her feel sluggish. Her current medication includes Codeine and Nurofen. She does not take sleeping tablets. The pain tends to be worse at night and she wakes 3-4 times a night. She is able to sleep for about 6 hours. 50. She has a numb left leg and a numb left foot mainly in the great toe and the lateral three toes. The sacral area is completely numb. She has numbness over the buttocks, worse on the left than the right. 51.The left leg is weak. She limps and has a foot drop and can only walk a 100 yards. She can only stop for two minutes. She can only sit for 30 minutes and fidgets. She is better slouching on a soft chair than sitting on a hard chair. She can manage a short flight of stairs. She does not wear any orthosis.”[27]Later he continues as follows under the heading “Examination” 2/269. 61. On examination she had complete perineal numbness. I did not do a rectal or vaginal examination but she tells she has no anal tone . (I gather a neurologist has carried out a rectal examination as part of one of the medico-legal examinations). She had very markedly reduced sensation over the left posterior thigh and over the lateral and posterior aspect of the left lower leg. She had similar but less marked numbness on the right. In other words she had moderate sensory disturbance in L5 and severe sensory disturbance in S1-S4 worse on the left than the right. Sensation over the anterior thighs was normal. 62.The right knee reflex was normal, the left reflex marginally reduced, the ankle reflexes absent. There was no proprioception in the left foot. 63.On assessment of motor power the right side was much better than the left all muscles groups were grade 4 plus in the right lower limb apart from hip extension, adduction and abduction which were grade 4. On the left she was much more weak. Gluteal muscles were grade 2, abduction and adduction grade 3, quads grade 4, hamstrings grade 3. Below the knee all muscle groups were grade2. 64.On examination of the spine she could flex to touch toes, hyper extension was uncomfortable as was lateral flexion, there was a well healed 5 centimetres scar with tenderness at the lower end of the scar over the paraspinal region.”[28]Mr Byrne for the Defendant in his Condition and Prognosis Report dated 23rd September 2013 following examination on 29th May 2012, 2/323, recorded as follows under the heading “Present Problems” “3.1 Mrs Tait told me that she has some back pain and stiffness with her low back which fluctuates but this has not been a major problem to her for some time and not really been very bad since December 2011. 3.2 She told me that she had pain in her left leg which she described as “shooting” into the left thigh. The pain is worse on weight bearing. She says that she has no pain the right leg. She did not describe the pain in the left leg as neuropathic pain, with no features of burning or use of words such as “unpleasant”. 3.3 She told me she had weakness of the left leg. She told me she dragged her foot when she was walking. She said she didn’t like to weight bear on her left foot. She said she did not feel stable and that when she walked she thought she was pulling to the left. She told me she could not stand for a long time. She cannot run. She is worse on uneven ground. She trips frequently. 3.4 She told me that she had lost all feeling in the left leg apart from some preserved but reduced feeling in the left index toe. 3.5 She told me that she had decreased sensation in all of her saddle area with numbness perianally and around the inner part of her buttocks and in her perineum extending up to her bikini line. She told me that she had no sensation during sexual intercourse.”[29]Under the heading “Examination” he recorded the following:- “4.2. On examination she appeared straight forward, she became clearly emotional on several occasions during the interview and on occasions cried when she talked about her present problems. 4.3 Her gait was slightly slow and she appeared to be limping slightly on the left and at one stage held onto her husband for support. 4.4 She had a well heeled mid line lumbar scar. She had modest reduction in normal lumbar lordosis. She was tender just touching the skin. There were slight paravertebral muscle spasms. Lumbar spinal movements were reduced to about one third of normal in all directions limited by pain. 4.5 Straight leg raised was 80% and the right with negative sciatic stretch test and 60% on the left with positive sciatic stretch test. 4.6 She had reduced power of dorsiflexion and plantar flexion of the left big toe of 4/5 but otherwise normal power in the left limb and she was able to stand on her tip toes and on her heels. 4.7 She had an absent left ankle reflex, reduced but reproducible right ankle reflex and in tact knee reflexes. Plantar reflexes were. downgoing. 4.8 She had decreased sensation to pin prick and soft touch in all of the left leg compared with the right leg. All of the left foot was very numb but there was some limited sensation to pin prick and soft touch in the left index toe. Joint position sense was absent in the left big toe and apparently in the left ankle. 4.9 She had decreased perianal sensation over the S2 to S5 dermatomes. She had reduced anal tone and rectal examination and was unable to squeeze down.”[30]Mr Byrne in his Opinion section concluded as follows:- “12.1 Mrs Tait clearly developed caudia equina syndrome in July 2009. 12.2 Caudia equina syndrome is caused by compression of the lumbosacral nerve roots, the cauda equina, in the lumbosacral spinal canal and is usually caused by an acutely prolapsed lumbar disc. Most lumbar discs, when they prolapse, move laterally within the spinal canal and compress one or more nerve roots but not all the cauda equina and sciatica, that is pain in the leg, develops. Uncommonly a disc prolapse moves centrally within the spinal canal and then compresses multiple nerve roots causing bilateral sciatica, that is pain in both legs, and also causing compression of sacral nerves which supply the bladder and bowel causing loss of bladder and bowel function. This is unfortunately what happened with Mrs Tait. 12.4 Unfortunately Mrs Tait has been left with very unpleasant sequelae of cauda equina syndrome. 12.5 Mrs Tait has low back pain and stiffness which fluctuates but this has not been a major problem to her for some time. 12.6 Back pain and stiffness are likely to continue to be an intermittent problem but are not likely to worsen if she concentrates on posture and looking after her back. 12.7 She has “shooting” into the left thigh, worse on weight bearing, without a description of typical neuropathic pain with no features such as burning sensation. She said she has no pain in the right leg. She has lost all feeling in the left leg apart from the left index toe. 12.8 She told me she had weakness of the left leg and dragged her foot which she thought she was pulling to the left and didn’t like to weight bear on her left foot. She feels unstable, cannot stand for a long time and says she cannot run. 12.9 Her pain and sensory loss and any weakness in her lower limb are likely to be permanent. I would not expect these symptoms to worsen in the future.”[31]In their first Joint Statement in April 2014 at 2/406, the experts agreed the back pain and sciatica “has not been influenced by any delay in dealing with the cauda equina compression but instead has occurred as a result of constitutional disc change (see answer to 1.4 at 2/408); that there was no indication that the Claimant was exaggerating her symptoms or effects on her (see answer to question 7 at 2/409;) and in respect of neuropathic pain:- “We note that this is Mrs Tait’s account of her symptoms which will be a factual matter for the Court but this appears to be what she has reported. These symptoms are subjective so therefore are a matter to be determined as fact by the Court. We would note, however, that neuropathetic pain is a common complication of cauda equina syndrome and so these symptoms are consistent with her developing a severe cauda equina syndrome.” (Answer to 8.1 – 8.7 at 2/409).[32]Finally, the experts accepted at 2/414 in answer to question 22 that the Claimant did have neuropathic pain.[33]The issue was then revisited by Mr Byrne in his letter dated 17th June 2014 (2/378) where at page 379 he said as follows:- “In my answer to question 22, my simple answer to “does the Claimant have neuropathic pain” of “yes” is misleading. My answer is yes if the Court accepts the description of the pain at paragraph 8.1 in the Agenda, but my answer is no if the Court accepts the account given to me when I examined the Claimant in 2012.”[34]In his Updated Neurosurgical Report on Condition and Prognosis dated 30th September 2014 at 2/381, prepared after an examination of the Claimant on 28th July 2014 and after reviewing her statements of 26th September 2013 and of 19th June 2014 Mr. Byrne expressed the following in his opinion section:- “6.3 Her statement of 19th June 2014 has been helpful in delineating the different types of pain that she now describes. Referring to her numbering; it is clear that “pain 2” is mechanical back pain; pain “4” is probably also a combination of referred pain from her back and possible radiculopathy as a result of degenerative disc disease;pains “1”,”3” and “5”are all consistent with neuropathic pain as a result of her cauda equina syndrome and both from reading her witness statements and talking to her it seems clear that these pains are the major problem in terms of pain now. 6.4 When I saw Mrs Tait on 29th May 2012 she did not give me the history that she is now giving. In addition I did not see such symptoms as she now describes in her medical records, with the medical records suggesting that she had problems as a result of mechanical pain from a constitutional degenerative disc disease. Mrs Tait explained to me that she is now better at describing her symptoms. On the balance of the history in 2012 I do not think there were significant symptoms of neuropathic pain, but there are symptoms now which are consistent with neuropathic pain. 6.5 I do not think Mrs Tait will deteriorate in the future but additionally I do not think that she likely to improve now. Mechanical back pain is likely to stay as it is now and whilst it might limit her to some extent it does not seem that it will be what is restricting her in activities such as being able to work and in her domestic activities, which are limited because of her incontinence and to some extent neuropathic pain.”[35]In their second Joint Report following a telephone discussion on the 14th August 2014 (2/418) Mr. Wilson-MacDonald and Mr. Byrne dealt with a number of questions as follows:- “1. Does the Claimant have neuropathic back pain as a result of her severe Cauda Equina Syndrome? We agree that the Claimant did not report a history of neuropathic pain when she first came to see us; and the contemporaneous records do not contain reference to symptoms of neuropathic pain. If the Court accepts her present description of her symptoms, however, then these are consistent with neuropathic pain as a result of her cauda equina syndrome. 2. If the Claimant has neuropathic back pain, what do her symptoms consist of? We agree she describes pain and discomfort between her buttocks, in her saddle area and in her hips, pains 1, 3 and 5 in the diagram attached to her witness statement of 19 June 2014 and these symptoms are consistent with neuropathic pain. 3. Does the Claimant have mechanical back pain? We agree yes. 4. If the Claimant has mechanical back pain, what do her symptoms consist of? We agree she describes back pain and shooting pain down her leg, pains 2 and 4 in the diagram attached to her witness statement of 19 June 2014 and these symptoms are consistent with her constitutional degenerative disc disease. 7. Have the Claimant’s symptoms of back pain deteriorated since you last saw her in 2012? If so, to what extent? We agree that her description of her symptoms has changed. She now says that when referring to back pain she meant pain in the back but in addition she included what she now describes, such as pain in the perineal region, and what describes as feelings such as if she is sitting on “rocks” or as if “something is pulling out of me”. 8. Without her severe Cauda Equina Syndrome symptoms attributable to delayed surgery would her lumbar back pain limit the Claimant to the extent of preventing her from doing a)physical work, while allowing her to do reasonable lifting and physical activities and b)routine domestic work and activities (as to which please give examples)? We agree that she would be limited in heavy manual work and heavy domestic duties because of mechanical back pain irrespective of any delay in dealing with her cauda equina syndrome. In our previous Joint Statement we took the view that worsening back pain was mechanical in nature and would limit her in terms of needing assistance with heavy manual tasks, assistance with tasks that involve lifting and bending, assistance with completing tasks at low level, such as emptying a washing machine or unloading a dishwasher, need for gardening help and decorating help, and that there was a non-material contribution to these needs as a result of the cauda equina syndrome and any delay in its treatment. If the Court accepts that the worsening symptoms she now complains of, with the description she gives now, however, then she has neuropathic pain and by her account mechanical back pain has not worsened, so her needs are due to the neuropathic pain. 9. Are the majority of symptoms of discomfort and pain she experiences now due to the Cauda Equina injury and nerve damage rather than the pre-existing musculoskeletal abnormalities in her lumbar spine? We agree that in our first Joint Statement we were of the opinion that her symptoms as reported to us and in the medical records, mechanical back pain, represented the majority of her pain and discomfort, and this was not due to cauda equina nerve damage, but if the Court accepts her current description of her symptoms then the majority of her symptoms of pain and discomfort are due to cauda equina nerve injury.” We agree that the Claimant did not report a history of neuropathic pain when she first came to see us; and the contemporaneous records do not contain reference to symptoms of neuropathic pain. If the Court accepts her present description of her symptoms, however, then these are consistent with neuropathic pain as a result of her cauda equina syndrome. We agree she describes pain and discomfort between her buttocks, in her saddle area and in her hips, pains 1, 3 and 5 in the diagram attached to her witness statement of 19 June 2014 and these symptoms are consistent with neuropathic pain. We agree yes. We agree she describes back pain and shooting pain down her leg, pains 2 and 4 in the diagram attached to her witness statement of 19 June 2014 and these symptoms are consistent with her constitutional degenerative disc disease. We agree that her description of her symptoms has changed. She now says that when referring to back pain she meant pain in the back but in addition she included what she now describes, such as pain in the perineal region, and what describes as feelings such as if she is sitting on “rocks” or as if “something is pulling out of me”. We agree that she would be limited in heavy manual work and heavy domestic duties because of mechanical back pain irrespective of any delay in dealing with her cauda equina syndrome. In our previous Joint Statement we took the view that worsening back pain was mechanical in nature and would limit her in terms of needing assistance with heavy manual tasks, assistance with tasks that involve lifting and bending, assistance with completing tasks at low level, such as emptying a washing machine or unloading a dishwasher, need for gardening help and decorating help, and that there was a non-material contribution to these needs as a result of the cauda equina syndrome and any delay in its treatment. If the Court accepts that the worsening symptoms she now complains of, with the description she gives now, however, then she has neuropathic pain and by her account mechanical back pain has not worsened, so her needs are due to the neuropathic pain. We agree that in our first Joint Statement we were of the opinion that her symptoms as reported to us and in the medical records, mechanical back pain, represented the majority of her pain and discomfort, and this was not due to cauda equina nerve damage, but if the Court accepts her current description of her symptoms then the majority of her symptoms of pain and discomfort are due to cauda equina nerve injury.”[36]There is therefore a large measure of agreement between the spinal experts. Their starting point is that they believe what patients tell them and they accept that what the Claimant described latterly is not only consistent with neuropathic pain but is indeed a classic example of neuropathic pain but that this later description did not accord with what she had described during the preceding four year period and frankly they struggled to offer any explanation for the difference. They do however accept that if this Court accepts the Claimant’s current description of her symptoms, then the majority of such symptoms of pain and discomfort are due to cauda quina injury.

The Claimant’s Evidence

[37]As is not unusual in such cases, the Claimant has, during the course of this claim, produced a number of witness statements dealing with aspects of her claim. They are dated respectively, 18th April 2013 which deals with the cause of action (1/78,) 11th August 2012 which deals with the Claimant’s education and the development of her photographic business and the effects of her condition on that business (1/88,) 18th April 2013 which, among other things, deals in some detail with the consequences of the surgery in terms of how it has left the Claimant (1/100,) 26th September 2013 which responds to various observations made by the Defendant’s care expert Mr Pace (1/127) and 19th June 2014 which deals specifically with the Claimant’s ongoing back pain (1/131). In addition, during the course of the trial, an earlier draft of a statement which became the 18th April 2013 statement was produced which was signed on 20th November 2009 (“the 2009 statement”).[38]It was the Claimant’s evidence that she was born on 22nd February 1981, got married on 25th June 2004 and has three children, Joshua Anthony born on 29th September 2005, James Michael (“Jamie”) born on 9th March 2007 and Lily born on 17th May 2013.[39]So far as back pain is concerned she had been seeing a chiropractor since before the birth of her children. She had always had what she described as a bit of a twinge in her lower back and when she was pregnant with Jamie she had had a lower limb loss of sensation. She noticed a loss of power as well as sensation and couldn’t really feel the muscle. Matters had improved after the birth although she still had a bit of a bad back and would go to the chiropractor from time to time. She described having back pain periodically but it was neither severe nor constant until shortly before the spinal surgery in July 2009.[40]In her 2009 statement, at paragraph 5, she included a description of pain in similar terms to the way in which I have paraphrased her evidence above and continued as follows:
“37. I am perfectly fine doing day to day things about the house, getting myself up and so on. My problems concern taking the children out, looking after them and carrying anything. 38. I can’t run or walk long distances as my left leg feels weak. I have a slight loss of power in my left leg. My right is ok. I am only aware of it when I have to apply pressure to my leg, for example on walking. 39. I think that presently as I try to do more I am becoming more aware of the limitations I have. Control that I thought I had before now seems to have gone. 40. I have pain occasionally and then suddenly it will become overwhelming and knock me sideways. Loss of feeling is the problem. The pain from my back is now not so bad. 41. By October it feels as though it is getting worse. For 3 days a week I am horribly uncomfortable. I feel a pulling sensation when walking from the area where I have no sensation. The lack of feeling makes me more aware of the area. In everyday life you are not aware of having sensation in every part of your body all the time. I am aware though continuously of not having sensation in my saddle area. I am also reminded of the lack of sensation when for example I sit, lean against something or play with the kids. It doesn’t feel natural. A massive part of me is missing. It feels as though my insides are coming out from an intimate area. In some ways it is like the feeling in your face after a local dental anaesthetic. Having no feeling feels odd and uncomfortable. I now can’t feel anything during intercourse.”
[41]In her statement of the 18th April 2013 (1/100) she describes the back pain as follows:
“4. If I had exerted myself the pain in my lower back would start to develop from an ache to severe pain. It became a hot searing pain which spread downwards to my coccyx, left hip and down my left leg and was accompanied by a feeling of numbness. This pain and loss of sensation then would worsen to the extent that I would find it almost impossible to use my left leg at all and it would restrict my mobility. The pain would continue until I took codeine. After a good night’s sleep it would feel a lot better the next day. However on a couple of occasions the pain was so bad that I had to go to hospital and had a morphine injection, even before the pregnancy. They did contemplate giving me oramorph for breakthrough pain but I wasn’t keen on this. 5. The back pain meant that I had and still have difficulty standing up straight. I get a pulling sensation and it feels as though my internal organs are being pulled out between my legs. As a result of this I generally not to stand for even short periods of time and either perch or sit down. I think this sensation is caused by weight bearing so I can still have it to some extent even if I am leaning on something. I have had to adapt activities as a result of this. For example, when I go to pick up the children from school I wait until the very last minute to get out of the car. I don’t stand around chatting in the playground like the other Mums because this would involve standing up for a few minutes. Although I park in the disabled bay, by the time I walk from the car to pick up the children and then back to the car I was exhausted. 7. I also have strange sensations where there is a loss of feeling. This happened prior to and during pregnancy. It is hard to explain but feels like my bones are rubbing against my skin. If I touch the area I can’t feel it, but I can feel internal sensations. When I sit for a long time it feels like I am sitting on raw bone because I can’t feel the tissue in between. 8. I also have random itching sensations in the places which are numb. I understand this is related to the nerve damage. I find this peculiar because I can’t feel these areas but still have sensations. I will try and scratch the itch but this doesn’t help either because I can’t feel the scratching. I can’t do anything to alleviate these sensations.”
[42]In her statement of 19th June 2014 the Claimant elaborated on the nature and extent of her back pain. This statement was prompted by service of the Defendant’s Counter Schedule which, whilst accepting that the Claimant would have had less weakness in her leg but for the surgery, asserted that she would have suffered the same degree of back pain, it being the Defendant’s case that the shooting pain down her left leg was not neuropathic pain consequent on the surgery but in large part referred pain from the Claimant’s lower back which she would have suffered from in any event.[43]It was the Claimant’s evidence that until service of the Counter Schedule, she had not appreciated that there was a distinction between mechanical and neuropathic pain and she had, when referring to her back pain, used that expression as an umbrella term to include pain she said she experienced and the operation scar in her spine and the pain in her buttocks and around her coccyx and going down into her leg.[44]At paragraph 3 she exhibited a description of all the pain sensations she was experiencing together with an explanatory diagram as follows:- “1. Pain in between my buttocks where I am unable to feel the tissue around the area if touched. This is around my Coccyx area. This is where I feel the most uncomfortable all the time. The sensation when sitting is like I am sat on a pile of rocks. It feels almost as though something is pushing up into me. I tend to shift my weight when possible to one side until that side feels numb and then shift over to my other side. I feel most comfortable lying down on my side. When standing it feels like something is pulling out of me with force and gets worse as I walk and continues until I stop and sit down and then after a short time is replaced by the other pain. This pain often gets so bad that I fantasize about scratching it away with a spoon. It feels like it should feel hot to touch. I do not get pain relief from this pain with the Pain killers I have they tend to just make me feel a bit better about it. 2. Back Pain, around where my scar is. It is tender to touch and aches most days and after long periods of heavy lifting and bending will hurt a lot more until very uncomfortable. Not really any more painful than the Back ache I had for several months leading up to the operation, possibly better. I will get stiff in this area. The Pain here will be relieved with mild pain relief so no longer there. 3. Saddle area. Similar to pain number 1. when sitting for long periods can feel like, when standing it feels like pulling. Can hurt during intercourse. 4. Shooting pain down my leg. Doesn’t happen too often, mainly in the night or after long periods of being still. I generally will have a dull ache in this area as well as the back of my knee and gets worse when walking. I often get a shooting pain in my back when I walk too much on my leg or stand with my weight on it. There is a point on my left thigh that starts to hurt while sitting and seems to radiate outwards and will cause me to rub it now without thinking. 5. Hips. It can ache across my hips and down my bum and down to my legs. Often in the evening and at night. Will feel like they should feel hot to touch. In parenthesis, it is common ground that what is described at paragraphs 1, 3 and 5 is neuropathic pain as appears from the Second Joint Report of the spinal surgeons at 2/418.[45]At paragraph 7 of her statement the Claimant explained that immediately after the surgery, the mechanical back pain disappeared completely until about December 2009 when it came back and was exactly the same as it had been prior to the surgery, save that she did not have the “stuck” feeling. The mechanical back pain has remained the same ever since.[46]The only other change in her symptoms was in September/October 2013 when she started to notice heaviness in her right leg with stumbling and twitching in her right big toe. This was, however, a short term problem and ceased shortly after she changed the side of the bed in which she slept which gave her more room in which to move around.[47]The Claimant was cross examined in some detail as to the nature and extent of her symptoms by reference to a significant number of her medical records. The import of the cross examination was to demonstrate that what she had been describing to the various doctors and other health care professionals was mechanical back pain consequent upon degenerative disease rather than neuropathic pain whereas it was the Claimant’s evidence that she had excruciating symptoms from the outset and that she had been regularly reporting the same to the various health care professionals with whom she came into contact.[48]The Claimant places reliance on what she reported to her care expert, Ms Emma Way (formerly Cullen,) in an early draft of her Rehabilitation Cost Report, prepared following an assessment on 11th July 2012, which is dated 22nd August 2012 and which included the following passages:- “Pain: Mrs Tait described various areas of pain: Lower back Mrs Tait informed me that she experiences a “constant ache” in her lower back which worsens throughout the day until by the evening “I could claw at my back with a spoon. The pain is unbelievably vile”. This pain is exacerbated by sitting on a harder, level surface, completing tasks at a low level, such as emptying or loading the dishwasher, and walking, standing or sitting for any period of time. Lying on her side or sitting tilted to one side reduces the pain. Mrs Tait described the relief she experiences when she is in a swimming pool. “I feel weightless. I am pain free”[49]In Ms Way’s 10th February 2014 Report (3/574) prepared following a telephone update on 7th February 2014, under the heading Physical/Psychological Restrictions, she reports as follows:
“Pain (updated): Mrs Tait described various areas of pain: Below the Coccyx Mrs Tait informed me that she experiences a “constant burning or shooting” at the very base of her spine, between her buttocks which worsens throughout the day until by the evening “I could claw at my back with a spoon. The pain is unbelievably vile”
. Mrs Tait believes that this pain has increased over time and is all consuming. It is not alleviated with medication. This pain is exacerbated by sitting on a harder, level surface, completing tasks at a low level, such as emptying or loading the dishwasher, and walking, standing or sitting for any period of time. Lying on her side or sitting tilted to one side reduces the pain. Mrs Tait described the relief she experiences when she is in the swimming pool. “I feel weightless. I am pain free”…. Internally Mrs Tait described a constant, painful sensation as if “a bolder or a rock” was being pulled out of her insides. This pain has increased over time and can become excruciating. For her final 3 months of pregnancy she stated that it felt like a “bowling ball” was being pulled out and that it was agony.” Does the Claimant suffer from neuropathic pain and , if so, to what extent?[50]What is said on behalf of the Defendant is that neuropathic pain is constant the onset of which would have been within weeks or at worst a few months of the index event yet there is no reference to such symptoms in the medical records until January 2014. Furthermore, what those records contain is a clear and consistent picture of physical limitations accounted for by the Claimant’s continuing mechanical back pain and limitations of movement attributable to degenerative disease as identified in the reports of Mr. Wilson-MacDonald and Mr Byrne to which I have referred and which is echoed in the report of Ms Way and that this picture is consistent with what the Claimant is recorded as saying to her GPs and others in the medical records.[51]In this regard the Defendant placed reliance on a number of references in the Claimant’s medical records as follows:- “15.4.10(3/444)- ongoing lower back pain – worse after going shooting 9.6.11(3/481)- she notices an increase in lower back pain and weakness of left leg which she describes as lazy 9.6.11(3/584)- severe left leg pain – resolved – continues to have dragging pain in her left leg walking – spasm in left leg. Also dull ache in back, which can become severe at times. 26.9.12(1/18@120)-Hamid QE2- occasional back pain- radiation into left leg- particularly after exertion. 26.12.12(1/181@124)- West Midland rehabilitation – worried that she has back pain. 4.4.13(1/181@131)- West Midlands- pain and altered sensation round her lower back – tolerates. 20.9.13(1/181@138)- Spasms of discomforts – increased numbness. 2.10.13(1/181@139)- Dr Saif-Stoke Mandeville- in addition left sciatic pain. 7.10.13- following road accident. 3/164-complaint of painful back due to recent RTA – increased lower back pain and right leg weakness. 3/666- lower back pain – GP 20.11.13(1/181@145)- Triage- thoracic pain (3/666)-acute back pain thoracic upper backache in midline between scapula 44d- had twinges here before – fleeting pain down arms- tender over thoracic vertebrae.”[52]Moreover it is said that the Claimant’s GP records and associated correspondence are particularly telling in that the Claimant was seeing her GPs regularly and it is simply not credible that they would not have noted the Claimant’s references to excruciating neuropathic symptoms which she maintains she had and described to them. Taken together the medical records are compelling and it is submitted that it is implausible to suggest that all the professionals concerned laboured under a misunderstanding or simply failed to record what the Claimant was saying to them. For that to be right, they would have had to omit the detail of what was being said either because they did not appreciate what was said or because they simply did not want to record it or because, as other problems settled, a particular problem might have become more prominent.[53]On behalf of the Claimant it was submitted that I should treat with great caution the allegation of exaggeration; an allegation of which the Claimant, it was said, did not have proper notice. Such allegations are all too easy to make, as are assumptions about inconsistencies in medical records when the makers of the records are not called, the context in which they are made is not examined in detail and the notes themselves were made a long time ago. By way of example, it was pointed out that Mr Wilson-MacDonald gave evidence that he thought he had erroneously assumed that the back pain he was told about was mechanical rather than neuropathic and it was submitted that others might have made similar assumptions. Equally the symptoms described by Mr Wilson-MacDonald at paragraphs 49-51 in his Report at 2/255, to which I have referred above, were according to him, neuropathic symptoms. There are other references in the material before the Court to neuropathic symptoms for example in the report of Mr Pace at 3/656 and Miss Vaizey at 2/498 and 2/506.[54]It is to be noted that the Defendant’s Counter Schedule, whilst calling into question the extent of attributable symptoms, did not assert that the Claimant was deliberately exaggerating her symptoms and the assertion of exaggeration, either conscious or unconscious, was not specifically pleaded. Nor was it supported by any evidence from the Defendant’s experts save in the sense that they acknowledged that what had been described in the early years did not accord with the Claimant’s later description of her symptoms.[55]Thus, the Claimant, it was said, had no reason to suspect that this issue would be controversial until receipt of Mr Byrne’s first Report in October 2013 yet, by then, she had reported some symptoms of neuropathic pain to a number of people including, as I have recorded, Ms Way and of course had prepared and signed her April 2013 statement as well as the 2009 statement.[56]Whilst Counsel for the Defendant sought to persuade me that the description in paragraphs 37-41 of the 2009 statement did not include symptoms of constant neuropathic pain of the type now described and that the description to which I have referred in the early version of Ms Way’s report was not descriptive of excruciating pain emanating between the buttocks, I accept the force of the submissions made on the Claimant’s behalf and I also take cognizance of the difficulties that the Claimant would have had in explaining and describing pain in an area which is numb as well as the Claimant’s own understandable reluctance to discuss symptoms relating to intimate areas of her body exemplified by her attitude to her husband in this regard and that plainly, over time, her focus would inevitably have changed.[57]I note that the spinal surgeons have agreed that the Claimant gave no indication that she was exaggerating (2/409) and that neither expert had any difficulty in concluding that what she described in 2014 were classic symptoms of neuropathic pain and also that such pain was likely to occur with cauda equina syndrome and that the more severe the lesion, as here, the more likely it would be that neuropathic pain would occur. It is also of significance that there are in fact a number of references to referrals to a pain clinic in the Claimant’s medical notes which would only be appropriate if neuropathic pain was being experienced as Mr. Byrne pointed out in his letter dated 23rd September 2013 (2/358).[58]Moreover I have to ask myself whether the Claimant is someone who would seek to exaggerate her symptoms for profit. My conclusion, having considered the totality of the evidence including her demeanour, is that she is not. To the contrary, all the evidence suggests that she is a high achiever who has worked extremely hard throughout her life. She left school at seventeen with 10 GCSEs to pursue a career in theatre lighting and media and she is, plainly, a capable, driven and ambitious woman, with proven business skills and is a talented photographer who has been the driving force behind the success of CCP, the turnover of which increased from £286,417 in 2002 to £602,645 in the 18 months to 31st March 2004 (although that turnover subsequently decreased following the birth of her first child) as appears from the figures exhibited to the statement of Catherine Sealy at 2/200 at page 205. If further evidence of her drive and ambition were required, it is to be found in the early success of the Claimant’s photographic business, HTP, set up in 2007 whilst she was still working for CCP and looking after two small children and which is again highlighted in the figures exhibited to Ms Sealy’s statement at page 208.[59]In addition and notwithstanding the effect of the negligently delayed surgery, the Claimant managed to complete the first year of her Master’s Course at Birmingham City University and attempted to continue her photographic business. It is also to be noted that the Claimant has readily accepted that she had a residual earning capacity, notwithstanding the expert medical evidence that it would be unlikely that she would be able to return to a useful occupation.[60]To my mind these are not the character traits or indeed the actions of a malingerer or someone who is out to exaggerate her claim for financial gain. This view is reinforced by the evidence from the various lay witnesses called on the Claimant’s behalf. Further if the Claimant were really attempting, deliberately, to exaggerate her symptoms of neuropathic pain, surely she would have given a history reflecting that neuropathic pain to the medico- legal experts when first examined and, am I really to conclude that she has actively sought to research typical examples of neuropathic symptoms and adopted them as her own?[61]On the balance of probabilities, therefore, I conclude that the Claimant has suffered and continues to suffer from neuropathic pain in the way she described in her witness statement of 19th June 2014 and that such symptoms are attributable to the negligently delayed surgery. How would the Claimant’s life and career have been impeded by the mechanical back pain that she would have continued to suffer from even if the surgery had been performed earlier?[62]I now turn to the second main issue of the nature and extent of the mechanical back pain which can be dealt with quite shortly. I have already referred to the physical limitations identified by the experts. It has been conceded on behalf of the Claimant that she would have required some domestic assistance and some assistance at work and that there would be some activities of a heavy nature which would have been beyond her.[63]As it seems to me, the starting point for consideration of the issue of what the Claimant could, but for the negligently delayed surgery, do is to be found in the evidence of what she was in fact doing prior to the index event to which I have already referred in this judgment. In short, she was looking after her family undertaking housework and working for CCP whilst building a photographic business from scratch.[64]I accept the submissions made on the Claimant’s behalf in this regard and conclude, on the balance of probabilities, that whilst the Claimant would have had to avoid heavy lifting and heavy manual work, she would have been able to carry on with the vast majority of her activities both domestic and work related notwithstanding her mechanical back pain. How would the Claimant’s career have progressed and what would she have earned but for the injury caused by the negligently delayed surgery?[65]The Court has heard a great deal of evidence from the Claimant herself and from a number of lay witnesses as to the Claimant’s work history, her character, drive and talent as a photographer and of her ambitions and motivation to make a success of a career as a photographer as well as from two employment experts. In addition the Court has had the opportunity of considering the Claimant’s portfolio of work and a number of editions of a magazine called “Family Time” of which the Claimant was a contributor.[66]The Claimant’s aspirations as a photographer were to build up to earnings of at least £50,000 - £60,000 net. If she had to go back to working in the conferencing field she estimated that her earnings would be in the region of £40,000-£50,000. It was her evidence that if she were to have been unsuccessful in her photographic business that is what she would have done, or alternatively she would have gone into logistics or event management.[67]It is common ground that the Claimant is a talented photographer and the lay evidence is littered with testimonials from various clients, all of whom speak of her talent and their willingness to recommend the Claimant to others. She plainly has energy, enthusiasm, drive, ambition and talent as well as being good with people and possesses acute customer service skills and has developed a good reputation. Moreover she had plainly done exceptionally well in her first full year of trading, particularly having regard to the family commitments and her health issues. Her personal tutor on the Masters Course at Birmingham City University, Mr Tromans, commented that the Claimant was different to other students because she already had a commercial practice and was already a competent photographer. She already had a client base and was attempting to broaden her horizons. She was efficient and competent and with a track record of delivering results which in was what clients wanted.[68]Glen Taylor, who had over 30 years of experience of photography and videography, was very impressed with the Claimant’s work which he considered was exceptional, whilst Helen Roscoe, a freelance photographer, was particularly complimentary about the Claimant’s family photography which she described as being fantastic such that she had recommended her to a number of people for weddings and family portraits.[69]Nicola Clement a Marketing Manager for a partnership called Elysia which is the UK Distributor of Dr Hauschka skin care products gave evidence to the effect that her organisation had used the Claimant for staff portraits and to take pictures of models at a Dr Hauschka casting session. She felt that the Claimant’s photographs were of commercial quality and impressive, that she had a great eye for a picture and also a way with people. She was good at catching people in photographs and making them look their best. She also had a commercial edge, lacking in other photographers. She felt that, had the Claimant continued working, her business would have continued to thrive, not only as a result of a steady stream of income from portrait work, but also as a result of her having developed relationships with magazines and having developed her reputation as a creative, yet commercially minded, photographer. She had no doubt but that the Claimant would have been successful. To my mind, and on the balance of probabilities, but for the negligently performed surgery the Claimant would have made a success of HTP.[70]The lay witnesses also gave some evidence as to likely earnings so that, for example, Mr Taylor suggested figures of £350 - £450 per day and that an adequate photographer could probably earn between £45,000-£50,000 per annum gross although he has known other photographers that have earned substantial six figure sums . Miss Clement suggested a going rate of £400- £500 per day with a maximum for a local photographer of £600 per day whilst Miss Roscoe suggested that she was charging £1700 for two photographers for weddings and that if she was on her own she would charge £1200 per day with the going rate for weddings being between £1300 and £1800 with high end photography being over £2000 per day although she conceded that some photographers would charge less than £1000 although she wouldn’t put the Claimant in that bracket.[71]It is plain from a consideration of the evidence of the respective employment experts that there is little solid evidence from external sources to assist the Court as to the Claimant’s likely income and her career prospects. Indeed the experts agree as such at paragraph 9 of their Joint Statement at 3/851 and 852. Ms Groves, for her part, identified an industry survey undertaken by the British Photographic Council whilst Mr Carter relied on the National Union of Journalists recommended minimum rates for photographers and a study conducted by the Association of Photographers. Both have commented on the lay evidence.[72]Mr Carter came up with the following conclusions in his Report dated 27th September 2013 at 3/755:
“Table 9 Summary of possible earnings Year Gross Profit Net Profit* 2008/09 £17,184 £10,287 2009/10 £27,926 - £29,281 £23,039 - £24,157 2010/11 £38,668-£41,378 £31,901 - £34,137 2011/12 £49,410 - £53,475 £40,763 - £44,117 2012/13 £60,152 - £65,572 £49,625 - £54,097 2013/14 £70,893 - £77,670 £58,487 - £64,078 *Assuming 17.5% deduction for expenses.”
[73]In arriving at his conclusions, Mr Carter relies heavily on the evidence of the lay witnesses and the figures are, in my judgment, highly speculative.[74]Ms Groves, in her Report dated 23rd December 2013 which begins at 3/762 at 3/775 under the heading “Summary and Conclusions” opines as follows:- “34 Mrs Tait had begun a business as a photographer when in March sustained cauda equina syndrome as a result of a delay in treatment at an NHS hospital in July 2009. 35 Mrs Tait had very creative ideas and good contacts within the industry. She comes across as a person who was dedicated to her work and had high standards. She had potential to develop her business. 36 Her accounts show that in the year preceding the injury she had received a profit of £10,287 after costs. This equates to the median for surveyed female freelance photographers. She had undertaken some unpaid shoots to promote herself which is common in the industry due to the large number of would-be photographers. 37 In his report Mr Keith Carter has predicted rapid growth for the photographic business and earnings at the very highest end for photographers. He has not provided any comment on the statistical likelihood of achieving very high earnings or the number of hours work necessary to achieve this. 38 The physical strain of taking and editing photographs for long hours would need to be taken into account. This is a medical issue in regard to Mrs Tait’s pre-existing spinal problems. 39 Mrs Tait had two children at the time of the injury and she has had a third child this year. It would be necessary to take into account the need for reliable childcare arrangements for a person working long and unpredictable hours as a high earning photographer. 40 The following table shows the result of the British Photographic Council’s Industry Survey for Photographers 2010, relating to 1,698 photographers: Average mean freelance profit £18,821 19% of freelancers £30,000+ 29% of freelancers £1 - £10,000 Median turnover/profit female photographers £25,000/£10,000 Median turnover/profit male photographers £39,471/£15,000 41 The majority of photographers earn modest incomes and many supplement this with alternative work. The extent to which Mrs Tait would have been able to succeed at the very top of the profession as indicated by Mr Carter will be a matter for the Court.”[75]In my judgment, the extent to which the employment experts can assist the Court in this case is limited. Photography is plainly an uncertain profession and earnings are erratic and often modest as is apparent from the British Photographic Council’s Industry Survey for Photographers 2010. True it is that the Claimant has real talent but there are many talented photographers and the industry is very competitive. On the other hand, the Claimant had clearly made a very good start to her photographic career as is apparent from the figures to which I have already referred and I remind myself of the Claimant’s contribution to the early success of CCP in terms of increased turnover and income as further evidence of the Claimant’s competence and her successful track record. It is also fair to record, as counsel for the Claimant submits, that the agreed residual earning capacity is at a level higher than the average annual female income recorded in Ms Grove’s survey. I have also taken into account the evidence from the various lay witnesses as to possible future earnings and their consistent evidence as to the Claimant’s talent, ability and commitment.[76]However, taking all matters into account and doing the best I can, I conclude that the figure contended for by the Claimant is extremely optimistic whilst that contended for by the Defendant is in all probability unduly pessimistic.[77]I am urged by counsel for the Claimant to adopt a broad brush approach to the question of the calculation of future loss of income and to fix a net overall figure. I accept the thrust of that submission as to the appropriate approach in the circumstances of this case.[78]It is common ground that the Claimant would have income from three sources, CCP salary, CCP dividend and HTP. For the purposes of the calculation of past and future loss of earnings, the parties have agreed a common approach to CCP salary and CCP dividend but in broad terms where they are at odds is as to the appropriate figure for earnings from HTP.[79]To my mind, having regard to the totality of the evidence and bearing in mind the many and varied imponderables, I conclude that an appropriate net overall annual figure is £45,000 i.e. inclusive of CCP salary and dividend but net of child care.

Financial Consequences

[80]I turn now to a consideration of the various heads of loss by reference to the very helpful attachments to counsel for the Claimant’s written closing submissions and trust that counsel will be able to incorporate the following figures into the various attachments to arrive at the total figure for special damages

Past Loss of Earnings - (Attachment One)

[81]As it seems to me, in order to calculate past loss of earnings, the Court should adopt a straight line progression of the income of HTP from the figure of £10,287 in the year 2008/9 to £29,535 (net of child minding fees) by the date of trial. (£45,000 minus CPP salary and dividend).

Past Care – (Attachment Two)

[82]I can deal with this aspect shortly. The Claimant relies on the report of Ms Way whilst the Defendant relies on the report of Mr Pace. The differences between the parties are accounted for by the Defendant’s contention that the Claimant would have required assistance with childcare and housework in any event due to her mechanical back pain and a reduction in the hours for gratuitous care. In the light of my conclusions as to the nature and extent of attributable neuropathic pain and the effect of mechanical back pain, the sum sought in attachment two in respect of cleaning and child care including the au pair are properly recoverable whilst I would reduce the sum claimed in respect of gratuitous care to 30 hours per week at £8 per hour discounted by 25% (namely £1207.80) preferring as I do the evidence of Mr Pace.

Past Equipment – (Attachment Three)

[83]In my judgment, save for those items to which I will refer specifically below, the Claimant is plainly entitled to recover the sums claimed in respect of past equipment, the Defendant’s opposition being based in large measure on the contention that the neuropathic pain is not attributable.[84]It was conceded by counsel for the Claimant in closing argument that there is no medical evidence to support a claim for acupuncture and I would disallow this aspect of the claim. Nor am I satisfied that the cost of beds and mattresses for Joshua and James are properly attributable.[85]There remain however the issues as to the quantification of sums due in respect of incontinence products, additional bedding and leggings. So far as incontinence pads are concerned, the Defendant relies on the evidence of Mr Pace whose suggested figures are based on those advised to him as having been incurred to date whilst Ms Way, for the Claimant, suggests a higher figure based on the cost of what she considers more appropriate and expensive products than those in fact used. To my mind, the figures relied upon by Mr Pace are to be preferred since they compensate the Claimant for the actual costs expended. So far as bedding and leggings are concerned, both experts agree the need but differ as to quantum. I would adopt the itemised approach advocated by Ms Way.

Future Loss of Earnings

[86]I have already dealt with the question of future earnings generally.[87]There is an issue between the parties as to the Claimant’s likely retirement date with the competing submissions being 68 on behalf of the Claimant and 65 for the Defendant. The former being the official government retirement date and there appearing to me to be no good reason to depart from that date, I conclude that the appropriate date for calculation of loss is 68.[88]There remains however the claim for loss of a chance of higher earnings claimed in the sum of £164,876.20, adopting a calculation used in Langford – v – Hebran [2001] EWCA Civ 361. In that case, the trial judge awarded damages for future loss of earnings based on basic income plus the lost chance of higher earnings calculated by reference to the percentage chance of attaining the higher level of success. The Claimant claims for a 50% chance adopting the mid point of the gross figure set out in Mr Carter’s report with appropriate deductions for childminding and tax. In principle this approach seems to me to be appropriate save that it does not seem appropriate to include in this calculation any sum in respect of CCP salary or dividend since, in order to have any prospect of earning the higher photographic earnings figure, the Claimant would have had to devote the whole of her time and effort to that aspect of the business. I would therefore award such sum as is calculated using the methodology set out in the Schedule of Loss save for the exclusion of CCP salary and dividend. Adopting that methodology, the relevant figure for highest achievable net annual income excluding CCP salary as set out in the Schedule of Loss is just under £85,000 which the Claimant has adjusted downwards in submissions to £72,080. Adopting a multiplier to age 68 of 19.3, the relevant figure, before deduction of the base level of future net income, is £1,391,260 and net of that base level is therefore £522,760. Given that what is being considered is, as I have found, a 50% loss of a chance of earning that level of income the relevant figure under this head of loss is £261,380

Future Care and Case Management – (Attachment Five)

[89]So far as future care is concerned, I would adopt the child care calculations put forward by counsel for the Claimant in attachment five to the written closing submissions since I can see no proper basis for reducing child care costs when Lily attains 3 as opposed to 5 years of age and I accept the argument put forward by Ms Way that until Lily attains the age of 5 there should be a full time Nanny.[90]Once Lily has attained the age of 5, I accept the recommendation of Ms Way that two hours per day is required for child care but only one hour for domestic support at £10 per hour, the former only being until Lily attains the age of, say, 14, adopting the substance of Mr Pace’s arguments on this aspect. Thereafter, as it seems to me, the requirement for child care will end. I can see no justification for the appointment of a personal assistant in the circumstances of this case.[91]So far as case management is concerned, I understand that past case management is agreed at £5701.06.[92]So far as future case management is concerned the Claimant seeks case management for life. In my judgment, there is no justification for any such award save in respect of the next three years until May 2018 to enable implementation of the various recommendations which have been made to take place and in particular to take the Claimant through any proposed move to a new home, accepting as I do the evidence of Mr Pace on this issue. The Claimant is an intelligent and articulate woman who is, in my judgment, more than capable of finding the necessary information to assist her. I would therefore allow a total of 100 hours at £98 per hour plus travel and mileage under this head.

Motorhome

[93]The Claimant pursues a claim for the hire of a motorhome in the sum of £847. To my mind that claim is unanswerable.

Future OT related claims – (Attachment Six)

[94]As I understand it items 1-3 inclusive in attachment six are agreed. As to item 4, breakdown cover, to my mind the Claimant would have had to have such cover in any event and the item is not properly recoverable in whole or in part.[95]I understand that item 5 is not pursued.[96]So far as showering and assorted items are concerned (item 6) need is agreed but cost is in issue. I accept the evidence of Mr Pace that there is no justification for two additional shower facilities in addition to whatever bathroom facilities a family of five would have had in any event. I would allow £2,500 for one shower with a 10 year replacement and £345 for a shower seat with 5 year replacement and grab rails at £100 and 10 year replacement together with a sum of £1,000 for installation.[97]So far as the swim spa is concerned (item 7), I am not persuaded that the medical evidence justifies this claim, the high point of which would appear to be Mr Byrne’s comment at 2/358 that a swim spa “would be to help with back pain”. The inclusion of such an item is, therefore, in my judgment, neither reasonable nor proportionate, but I will include an element in the figure for general damages to reflect loss of amenity in this regard that, being the Claimant’s alternative submission.[98]So far as items 8, 10, 11, 12, 13 and 15 are concerned, they are recommended by Ms Way but opposed by Mr Pace on the basis that they would have been required in any event due to the Claimant’s pre-existing mechanical back pain. In my judgment the need arises from neuropathic pain and or incontinence and they are therefore costs which are properly recoverable in the sums claimed.[99]I understand that items 9, 14 and 18 are agreed.[100]I turn now to occupational therapy (item 16) and physiotherapy (item 17). So far as the former is concerned, it does not seem to me that there is any established need for occupational therapy intervention at all. I have no doubt that the Claimant is more than capable of researching and acquiring for herself suitable equipment and I am wholly unimpressed with Ms Way’s argument to the contrary (3/719). So far as the latter is concerned, it is fair to say that there is no expert evidence to support such a claim but it was submitted on behalf of the Claimant that it was doubtful whether the obtaining of such a report would have been proportionate in the circumstances of this case. Having regard to the totality of the medical and other evidence it is probable that the Claimant would benefit from the provision of physiotherapy and the extent and costings for such therapy suggested by Ms Way would appear to me to be reasonable (3/720).[101]So far as those items in item 19 which are not agreed are concerned I conclude as follows:- Additional clothing and bedding Plainly a sum is justified. The question is what sum. Doing the best I can in the light of the evidence of Ms Way and Mr Pace I would award £450 per annum Prescriptions I would allow £104 per annum to the age of 60. Incontinence products I would allow £600 per annum Acupuncture I accept the evidence of Mr Pace that to the extent that such an intervention is required, it is as a result of mechanical back pain and therefore not properly recoverable. My conclusions are the same so far as the claim for heat pads are concerned.[102]So far as holidays are concerned (item 20), in the light of the concession made during the course of the trial that acquisition of a caravan for holidays is reasonable, I conclude both that the claim is justified in principle and that the various sums claimed are reasonable and proportionate. So far as any deduction for the cost of holidays in any event is concerned, notwithstanding the evidence of the Claimant, I conclude that Mr Pace’s suggested figure of £1500 is, on the balance of probabilities, a more reasonable and accurate assessment.[103]Turning now to heating and laundry, I understand that laundry at £2,131.01 is agreed (see Defendant’s closing argument paragraph 51). What is not clear to me is whether this agreement includes the cost of an additional washing machine, the need for which is agreed by the care experts. If not covered, then I would allow £150 per annum under this head.[104]So far as heating is concerned, the consensus of opinion of Ms Way and Mr Pace is that both whilst Lily is at home and after retirement, no additional heating costs will be incurred. I accept the thrust of that evidence and would limit the claim to £250 per annum from the age of 37 to the age of 60.[105]So far as home maintenance and gardening are concerned, it is plain in my judgment on the evidence that the Claimant’s mechanical back pain would increasingly limit the Claimant’s ability to undertake these activities, which historically, I accept have been undertaken by the Claimant. Doing the best I can I would award £1,000 per annum to the age of 60.

Accommodation – (Attachments Seven and Eight)

[106]The parties rely on the evidence of their respective experts, Mr Cumbers for the Claimant and Ms Bowden for the Defendant whose Reports are at 3/867 and 3/924 and whose Joint Report is at 3/973.[107]The main issue between the parties is whether or not the Claimant requires single level accommodation. What is said on behalf of the Defendant is that the Claimant has been managing stairs for the past 5 years and in all the circumstances of the case it would be reasonable for the Court to conclude that accommodation which is predominantly at ground level but with possibly a spare room and bathroom at first floor level would not be unreasonable.[108]Not surprisingly counsel for the Claimant submitted otherwise, reminding the Court that the Claimant has physical difficulty using stairs but more importantly can and does suffer episodes of incontinence when using stairs as a result of the effort expended. Moreover it was submitted on behalf of the Claimant that Ms Bowden had agreed that if the Claimant was wheelchair bound she would recommend single level accommodation in order to promote and enhance, so far as possible, the user’s independence and it was suggested the same principle should apply here so that whilst it might be possible for the Claimant to go up and down the stairs, to do so was to condemn her both to the risk of incontinence, (i.e. the worry) and actual incontinence with the usual consequences.[109]For my part I see the force in those submissions made on the Claimant’s behalf and I conclude on the balance of probabilities that single level accommodation is reasonably required in this case and approach this aspect of the claim on that basis.[110]A further issue between the parties relates to the extent of the accommodation. It is agreed between the experts that the Claimant’s current home provides approximately 131 square metres of accommodation. Mr Cumbers for his part suggests that a total of 154 square metres is needed whilst Ms Bowden considers 140 square metres to be adequate and reasonable. On this issue I prefer the evidence of Ms Bowden having regard to the factual background to this case and in particular to the evidence as to the actual property that the Claimant and her husband have been renting since 2005.[111]I turn now to the issue of the likely cost of acquisition of a single storey property. As Counsel for the Defendant points out, Mr Cumbers, in his Report, includes properties priced significantly above others whilst the average price of two bungalows currently on the market or, at least, on the market when the various Reports were prepared is £549,975.00. Ms Bowden’s original Report at 3/935 suggested £480,000.00 as reasonable purchase price. This was revised in the Joint Statement at 3/974 to £539,955.00. In my judgment, it is reasonable and proportionate to work with a figure of £540,000 as the basic purchase price of a single level property which would be suitable for the Claimant’s needs.[112]There is also a significant dispute between the parties as to extensions and adaptations as appears from the Joint Statement at 3/977 onwards. Having regard to my conclusions as to living space, I do not consider that any provision should be made for any extension. Equally, having concluded that a swim spa is not justified on the evidence, there is no need for provision for an annexe to accommodate a swim spa.[113]So far as a studio is concerned, the experts agree the likely cost. The Defendant submits that the Claimant would be likely to have had a studio in any event but to the extent that this need may have been more extensive and/or urgent as a result of the negligently delayed surgery, it would be reasonable to allow 50% of the cost (with a corresponding 50% attribution of betterment in the Roberts-v-Johnson calculation) whilst the Claimant submits that the whole sum should be allowed on the basis that the studio would be necessary to generate the income from the photographic business. On this issue it seems to me that the Defendant’s argument is compelling and I would award 50% of the agreed cost of £75,994 namely £37,997.00 with a corresponding 50% attribution of betterment.[114]I turn now to the question of adaptations by reference to the Joint Statement at 3/971 and following. To my mind Mr Cumbers has taken a grossly extravagant approach to this issue and I agree with the submission made on behalf of the Defendant that he has inflated the Claimant’s reasonable requirements which in my judgment has done the Claimant no favours.[115]By way of example, the suggestion that a bulk storage room should be created at a cost of £2,180 and the suggested costings relating to intruder and fire detection equipment and heating installation and for possible adaptations to the garage are to my mind grossly excessive. Moreover the case for £35000 of expenditure for torso level units in the kitchen and bedroom is simply not made out on the totality of the evidence. Ms Bowden has made allowance for additional work required to avoid bending due to incontinence and it has to be remembered that the Claimant would have had difficulties as a result of mechanical back pain and in so far as low cupboards and the like are concerned. Moreover the suggestion that a property finder at a cost of £7,500 should be included frankly beggars belief. I entirely agree with Ms Bowden that the Claimant and her husband are perfectly capable of choosing a family home without professional advice.[116]To my mind, Ms Bowden has addressed the issue of what is reasonably required systematically and sensitively and where there is any disagreement between her and Mr Cumbers I prefer the evidence of Ms Bowden and would adopt her calculations save so far as the cost of torso level units are concerned when she has plainly not allowed for the effects of neuropathic pain. Doing the best I can I would allow a figure of £21000.[117]So far as increased running costs are concerned I would allow £375 per annum, being the mid point between the parties, and for heating £72 (being 50% of £144 suggested by Ms Bowden in respect of the studio) and otherwise accept the figures put forward by Ms Bowden.

Future Medical Expenses - -(Attachment Nine)

[118]I understand that so far as future medical expenses (attachment nine) are concerned, the Defendant agrees £3,000 in respect of cognitive behaviour therapy and a further sum of £21,242.65 (i.e. the sums claimed in attachment nine less the cost of the banding operation (£2,029.98)). Those figures seem to me to be reasonable and proportionate and I would adopt them.

General Damages

[119]I turn now to the question of general damages. I was referred to the JSB table 6 (i) which gives a top level award for total loss of natural bowel function causing faecal incontinence of £110,300 while section 6 (j) gives an award of up to £103,250 for a complete loss of function and control of urinary incontinence. In addition, the Claimant also suffers additional pain and leg weakness and neuropathic pain there is some psychiatric injury and there is of course also the sexual dysfunction.[120]It was submitted on the Claimant’s behalf, and I accept, that the Claimant’s incontinence is likely to increase and it is to be noted the Claimant has a high incontinence score as appears in Miss Vaizey’s Report at 2/497 and it was the Claimant’s evidence, which I accept, that her entire day is dominated by her toileting needs and she relies entirely on incontinence pads, nappies and the like to manage that incontinence.[121]I remind myself, however, that it is not appropriate simply to combine awards for bowel and bladder incontinence and that there has to be some reduction for overlap. The respective parties’ contentions are perhaps not surprisingly not that far apart. The Claimant contends for £140,000 whilst the Defendant contends for £120,000. In support of the higher figure counsel for the Claimant referred me to the decision of Mr Justice Otton, as he then was, in Routledge-v-McKenzie referred to at F5/001 in Kemp and Kemp where, updated, an award of £117,050 for a cauda equina lesion affecting the spinal and nerve roots L5 and S1 to 5 was made.[122]Taking into account the totality of the evidence and having regard to the JSB guidelines and the decision in Routledge-v-McKenzie,.I conclude that the appropriate figure by way of general damages to reflect the pain suffering and loss of amenity suffered by the Claimant as a result of the negligent delay in surgery is £140,000. In coming to this conclusion I have also taken into account the fact that, as I indicated earlier in the judgment, there has been a loss of amenity in terms of swimming.

Conclusion

[123]I trust that I have dealt with all the issues on which the parties require a determination. If there are any matters in dispute where, inadvertently, I have failed to make a ruling I should be grateful if the parties would alert me to the lacuna, providing a short skeleton argument setting out their respective positions on the outstanding matter(s), and I will then endeavour to incorporate my conclusions into a revised draft.[124]Subject to that caveat, I hope that the parties will be able to agree the terms of an order that reflects the substance of this judgment.[125]I would like to take this opportunity to thank both counsel for their invaluable assistance in this case and finally would like to apologise to the parties and, in particular, to the Claimant for the delay resulting from the unfortunate adjournment of the hearing of closing arguments.