Alexander Kotula v EDF Energy Networks (EPN) Plc and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 17 June 2011 |
| Neutral Citation | [2011] EWHC 1546 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/09/1067 |
| Date | 17 June 2011 |
[2011] EWHC 1546 (QB)
Mr Justice Irwin
Case No: TLQ/09/1067
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Westcott QC & Mr Nathan Tavares (instructed by Stewarts Law LLP) for the Claimant
Mr Mark Turner QC & Mr Steven Snowden (instructed by Kennedys LLP) for the Defendants
Hearing dates: 19 and 20 May 2011
Background
The Claimant is a T6 paraplegic having sustained spinal cord injury in a road traffic accident on the 28 th September 2006. The accident occurred whilst the Claimant was wheeling his bicycle through road works in the village of Park Street near St Albans. The road works had been left in a dangerous condition, he alleged, and in consequence he attempted to negotiate them but was struck by a heavy goods vehicle travelling past the works. As a result he sustained spinal injuries, internal injuries including a left haemopneumothorax, and a ruptured spleen. He also sustained a brachial plexus injury affecting the left arm. His spinal cord injury is complete at the T6 level.
The Claimant was in hospital for seven months and has been left with permanent paralysis affecting both legs and a degree of compromise to his left arm. He is dependent on a wheelchair for mobility and is unlikely ever to be able to walk.
Liability and contributory negligence were dealt with by way of preliminary issue, in a trial commencing on 8 June 2010. During the course of the trial, the Defendants consented to judgment on primary liability but the issue on contributory negligence was sustained. However, at the conclusion of the trial the judge held there was no contributory fault and the Defendants are therefore one hundred percent liable for any relevant damages.
The Defendants appealed the trial judge's finding on contribution but the appeal was subsequently withdrawn on a conditionally compromised overall settlement. The terms of the conditional settlement had been contained in a Tomlin Order agreed on 10 February 2011 and sealed by the court on 18 February. In summary form, the settlement provides for a gross lump sum payment of £2.5M and periodical payments for future care and case management linked to the ASHE 6115 earnings index at the following rates over the following periods:
(i) £30,000.00 pa until the Claimant's 45th birthday
(ii) £40,000.00 pa from 45 to 55
(iii) £60,000.00 pa from 55 to 65
(iv) £85,000.00 pa from aged 65.
Periodical payments were also agreed for future loss of earnings at the rate of £16,000.00 pa until the age of 65.
The parties are unable to agree on one issue, which has led to the hearing before me. It is accepted that the Claimant has a risk of suffering post-traumatic syringomyelia. The Claimant has been pressing for a provisional damages award and an order permitting variation of the periodical payments, should the contingency arise. The Defendants resist that. The parties did agree so far as to stipulate in the Tomlin Order that the settlement figures and payments set out in the Order would be treated as provisional or variable or otherwise, dependent upon a ruling as to whether a provisional damages claim and an application to vary the periodical payments were appropriate. The parties also confirmed to me that they are agreed that those two questions should be treated as one. That is to say, that the Claimant should either be permitted the opportunity in the future to claim further lump sum damages and variation of the periodical payments, or to claim neither.
Proceedings Since The Settlement
The Tomlin Order sets out the steps to be taken preparatory to the trial of the remaining issues. Exchanges of reports and exchanges of views from the experts instructed for both sides have been completed. The Claimant's expert Mr Brian Gardner is a consultant in spinal injuries at Stoke Mandeville Hospital. He has provided reports dated 20 November 2010 and 17 March 2011. The Defendants' expert Mr A M Tromans is also a consultant in spinal injuries, at the Duke of Cornwall Spinal Treatment Centre in Salisbury. Mr Tromans has provided two reports both dated 13 October 2010. Both experts are senior and distinguished in their field and have been perfectly helpful in their written material and in the course of their discussion. They conducted a discussion on the relevant aspects of this case and produced a joint note against a prescribed agenda dated 17 May 2011. They have been very close indeed in their positions advising about this case. Mr Gardner gave oral evidence before me and was cross-examined on the first morning of the hearing. Counsel for the Defendants, Mr Mark Turner QC, was able to consult with Mr Tromans after that and concluded on advice that it was simply not necessary to cross-examine further, or to call Mr Tromans, given the close approximation of views between the two experts. As always, careful and professional evidence such as this is of the greatest help to the court.
Against that background, I turn to consider the position of this Claimant in a little more detail.
The Current Medical Position and the Future Risks
The Claimant was born on the 12 February 1982 and was thus 24 at the date of injury in September 2006. He is now 28. He is married with a young daughter. As I have already indicated he is a T6 paraplegic with a left brachial plexus injury leading to a reduction of power in his left arm.
Mr Gardner has dealt with the compromised left arm in the following terms:
"He has significant impairment of left arm function. This is due to the combination of his stiff left shoulder, his left humeral fracture (a minor factor) and his brachial plexus lesion, predominantly in the C8 and T1 distribution.
Because of his stiff…shoulder he has impaired range of motion including elevation, internal and external rotation. This is significant. His humeral fracture is mal-aligned. It does not appear to be causing him much functional difficulty. The brachial plexus injury has caused wasting of his left forearm and the small muscles of his left hand. There is mild clawing of the left hand.
All muscle power in the left arm is grade 4 or 5, with the exception of fine finger control, which is grade 2, and finger flexion, which is grade 3.
Sensation is present throughout his left arm but in the C8 and T1 dermatomes it is impaired and with absent pinprick sensation.
Because of his left arm problems he has difficulty with transferring to both sides. It is due predominantly to lack of strength and his difficulty with lifting himself up in the transfer. He indicates that transfers to the left and to the right are equally affected.
The grip of his left hand is impaired. This detracts from his ability to open things and to pick them up. Because of the residual problems in the left arm he has greater difficulty with pushing the wheelchair. He indicates that his left arm gets very tired at the region of the left shoulder."
When Mr Gardner re-examined the Claimant in November 2010 he reviewed the position in the left arm and the problems which it caused for the Claimant. He then reported in the following terms:
"There has been no significant change in his left arm. Finger flexion power in his left hand was grade 3 at the time of the last report. It is now a weak grade 4. The main problems he gets with his left hand are weak grip and poor fine finger control. The fine activities using the left hand are severely impaired.
He indicates that the left arm difficulties are:
1. Difficulties with transfers to right and left
2. Impaired pushing of the wheelchair
3. Impaired fine control of the left hand
4. Difficulty with picking things up on the left"
In oral evidence, Mr Gardner confirmed that this situation had now reached a plateau. No further improvement was to be expected.
Mr Gardner also summarised the neurological position in his two sequential reports as follows:
"[The Claimant] appears to have made a good recovery from any head injury that he sustained. He indicates that he has no symptomatic problems with his cranial nerves. Apart from the left brachial plexus neurological injury…he has no neurological problems in his arms.
He has T6 motor and sensory complete paraplegia. This is flaccid in type. The fact that his lesion is flaccid suggests that there was infarction of the cord.
Mid thoracic paraplegia means that he has no movement under voluntary control below a line at the junction of his chest with his abdomen. He has no sensation below this level. He lacks sensation from and control of his bladder, bowels and sexual organs.
He lacks abdominal and paraspinal muscle control. As a result his truncal balance is poor. This interacts with his overweight status and his weak left arm to make transfers and activities of daily living more difficult."
In his updated report of November 2010, Mr Gardner indicated that there had been no change in relation to these neurological conditions since his description quoted above.
The Claimant's level of physical activity is necessarily much reduced as a consequence of his injuries and he has gained a considerable amount of weight. Mr Tromans has remarked that he was overweight before the accident. However in 2008 the Claimant had a body mass index [BMI] of 30. By November 2010 he weighed around 15 stones at a height of 5ft. 7 1/2" and had a BMI of 33.
As has already been noted the Claimant suffers from a degree of bladder incontinence and some faecal incontinence leading to a degree of faecal leakage, perhaps once a week.
Even with continuing excellent care, there is here unfortunately a prospect of deterioration in the Claimant's condition with the passage of time. This is...
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