Charlotte Swift v Malcolm Carpenter

Hearing dates: 25, 26, 27, 30 April 2018 and 1, 2, 3, 9 May 2018

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Claimant was born on 25 ^th September 1974 and is now aged 43. In October 2013 she suffered serious lower limb injuries in a road traffic accident on the M5 motorway when travelling as a front seat passenger. The driver of the vehicle was the Defendant, Malcolm Carpenter. At the time of the accident he was the Claimant's partner; they have since married. Liability in respect of the accident has been admitted and this action for personal injury and consequential financial losses therefore came before me on the issue of quantum only.

Mr James Arney appeared on behalf of the Claimant and Mr William Audland QC on behalf of the Defendant.

The Claimant's Injuries, Condition and Prognosis

The Claimant suffered crushing injuries to both feet and lower legs. On the left side, an open fracture and crush injury compromised the blood supply to the ankle and foot. The limb could not be salvaged and the Claimant underwent a left sided trans-tibial (below knee) amputation in early November 2013. The right foot was also badly crushed causing a dislocation of the great toe and a number of fracture dislocations of the bones in the midfoot. These injuries were treated by the insertion of a metal plate in the midfoot and by fixation of the broken toes with wires and screws. She suffered a fractured sternum and a relatively minor closed head injury, neither of which have caused any significant ongoing functional disability. The Claimant was in hospital in Birmingham for a month and then transferred to Charing Cross Hospital in London where the amputation stump was revised and shortened due to poor healing of the wound. She was eventually discharged home on 18 ^th December 2013.

The Claimant remained under the care of the out-patient clinical teams at Charing Cross Hospital during 2014. In many respects her rehabilitation was, relatively speaking, uneventful. She suffered from some stump oozing and irritation but this appears to have quickly resolved. She was fitted with a lower limb prosthesis in early January 2014 and discharged by the physiotherapy team on 19 ^th February 2014 when it was noted that she had taken to walking with the prosthesis well and was able to walk unaided, including on public transport. The team expressed the hope that the Claimant's progress should continue to normal, or near normal, walking over greater distances and with more confidence. In November 2014, Dr Shipway, the rehabilitation consultant noted that she was “doing extremely well” from her left amputation and that she was keen to increase her physical activity, such as walking and rambling, and even playing tennis. He noted that she was keen to receive a limb with an articulated ankle for this purpose, a request which he considered to be entirely reasonable.

However, during the same period, the clinical notes also record the development of two serious complications: phantom limb pain originating from the missing left foot and pain and stiffness, particularly in the midfoot, on the right side. In January 2014, the Claimant was seen by a Consultant in Pain Medicine in connection with her neuropathic phantom limb pain. At that stage the pain was responding well to medication. The good response did not continue. The Claimant was prescribed a different drug regime, with little effect, and in 2015 she underwent radiofrequency ablation of the nerve to alleviate the pain and subcutaneous injections of sodium salicylate. Neither treatment, as I set out below, was curative. Likewise, her problems with pain and stiffness of the right ankle and foot emerged in 2014 and consideration was given to removing the metal plate. In November 2014 it was recorded that her main symptoms related to the right foot which was painful. Although the pain has, to a large extent, resolved the Claimant continues to suffer from stiffness of the right ankle and stiffness of the midfoot.

Phantom Pain

In her witness statement of May 2017 the Claimant provided a graphic description of the neuropathic pain originating from the missing left foot. The pain was, she said, the most consuming feature of her condition; like a “ cutting pain in my non-existent foot underneath the toes, like someone is digging something sharp like fingernails into the skin under my toes and scraping it across the width of my foot. Sometimes it's a squashing or crushing feeling, as if the toes are being squeezed in a vice. It is also painful underneath the ball of the foot and into the ankle”. She said that on a scale of 1 to 10, 10 being the worst possible pain imaginable, the pain usually scored around 6 to 8, although it could be as great as 10. She said that the pain was present all the time and that, although her medication regime would usually keep the pain within manageable levels, she would feel the effect of the medication wearing off. She had random good and bad days and described being trapped in a cycle of pain, which made her tired, with the tiredness then making the pain worse. Exercise would sometimes be helpful; removing the prosthesis and rubbing the stump would also sometimes help, but this required privacy. She said she tried to distract herself from the pain as much as possible.

The Claimant has undergone a large number of different techniques for pain relief; some highly intrusive and intrinsically painful (e.g. the radiofrequency ablation), other more conservative strategies (e.g. mindfulness; mirror therapy) and many on the spectrum between (e.g neuromodulation, acupuncture). She is waiting to enlist on a pain management plan. It was not disputed at trial however that there is no cure for the condition and no treatment which guarantees relief. Ongoing pain, tiredness and, what Mr Arney described as resulting “finite reserves”, were features of her condition which, he asserted, permeated all aspects of her life including her ability to care for her child, to work and her leisure activities. She told me that her pain made her all the more determined to lead an active sporting life for distraction and relief.

The Right Foot

The Claimant's right foot, although salvaged, was nonetheless badly damaged. A recent attempt to remove the metal work has been unsuccessful and, although a further removal attempt may be made, the Claimant currently has a “dorsal hump”: a slightly prominent and tender area on the top of the foot over the plate which limits the range of footwear which she can wear comfortably. Of more functional significance is the stiffness in the ankle and midfoot and the reduced range of upward and downward movement of the ankle joint and the midfoot which limits her power to “push off” from the ground and prevents normal heel to toe “roll over” during walking. Whereas a normal right ankle and foot would have served to compensate for the asymmetrical gait caused by the prosthesis, the absence of normal joint mobility and strength on the right side just compounds the problem. Again, these residual problems affecting the right foot are likely to continue.

The Expert Evidence on Prognosis

The Claimant was assessed for the purposes of the litigation by two medical experts. For the Claimant, by Professor Michael Saleh, an orthopaedic surgeon specialising in trauma and limb reconstruction and, for the Defendant, by Professor Rajiv Hanspal, a physician specialising in rehabilitation medicine formerly based at the Prosthetic Rehabilitation Unit at Stanmore. Both gave evidence at trial although, in fact, it did not seem to me that there was any real difference between their respective opinions concerning the Claimant's prognosis. They made the following points relevant to the quantification of the claim:

i) as with any amputee, the Claimant will be prone to back pain in the future due to the altered mechanics of gait;

ii) she is at higher risk of degenerative changes in the major lower limb joints which will need to be managed by physiotherapy and by anti-inflammatory medication;

iii) she will continue to be fit for sedentary work until normal retirement age;

iv) her physical activity level will reduce in later life (as with many able-bodied people);

v) either in her mid to late 60s or early 70s, the Claimant will probably need to use a wheelchair: initially this will be for longer distances outdoors but gradually she will need to use a wheelchair more, including indoors;

vi) she will remain self-caring until her late 70s and early 80s when she will start to need more help;

vii) during the last two years of her life she will need assistance with transfers and help from a single carer: Professor Saleh gave evidence that during these last two years she will need help to get out of a low chair, help with toileting, bathing and with her bed-time routine;

viii) both experts agreed that she was currently compromised in terms of performing heavier aspects of housework, lifting, carrying, and working at ground level (e.g cleaning a floor) but as to the level of assistance required they deferred to the care experts.

The experts also commented upon the risks associated with the Claimant undertaking high impact sports, such as running. In their joint report they had agreed that the Claimant would find high impact sport...