Sandra Mehmetemin v Craig Farrell
| Jurisdiction | England & Wales |
| Judge | Sir Robert Nelson |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 103 (QB) |
| Docket Number | Case No: HQ12X00689 |
| Court | Queen's Bench Division |
| Date | 27 January 2017 |
[2017] EWHC 103 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Robert Nelson
Sitting as a High Court Judge
Case No: HQ12X00689
Paul Rose QC (instructed by Leigh Day) for the Claimant
Patrick Blakesley (instructed by DWF LLP) for the Defendant
Hearing dates: 17, 18, 19 & 21 October 2016
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.
On 14 December 2009 the Claimant was seriously injured in a road traffic accident on the A414 in Maldon, Essex. Liability has been admitted and this trial is for the assessment of the damages to which the Claimant is entitled.
There is a substantial dispute between the parties, particularly on the issue of future care. The Claimant was given leave to increase her schedule of loss by some £685,000 (excluding general damages) on 14 September 2016, one month before the trial.
The Claimant's injuries
The Claimant sustained multiple injuries, the most serious of which was a complex and severe comminuted fracture of the right lower leg and ankle, with consequential damage to the right great toe. She also suffered chest and rib fractures with soft tissue injuries, lacerations and contusions. There was also a right abdominal hernia which has been repaired, but remains symptomatic, and a mild traumatic head injury. The consequence of these serious multiple injuries has been the development of a substantial psychiatric disorder with mixed depression and anxiety.
The Claimant has undergone no fewer than six major operations for her leg injury and one for the attempted repair of her hernia. Initially there was external fixation across the right ankle after open reduction. Some six months later the external fixator was removed, the articular portion of the ankle fixed and a further stabilising fixator fitted around it. That fixator was removed some five months later and the following month, in July 2010, the abdominal hernia repair operation took place. In October 2010 a bone graft was carried out to the right ankle and again it was internally fixed. The fracture healed but with leg length shortening of about one inch and inward bearing of the bone. In May 2013 an operation took place to cure this deformity by way of realignment of the right ankle and removal of the metalwork. In September 2013 the external fixator was removed and finally, in October 2014, there was an operation to release the tendon on the right big toe.
The reason for the significant extent of surgery to the right ankle was the type and severity of the injury. The fracture was described in evidence as a Pilon fracture, which is as bad as it gets, and that this particular fracture was the most severe in that category. The Claimant's treating orthopaedic consultant, Mr Russell, said that her fractures were like a "vase being smashed". In their joint report the orthopaedic consultants described the injury as a displaced multi-fragmentary and intra-articular fracture of the distal tibia and fibula at the ankle.
In spite of the major and multiple surgical interventions the Claimant has been left with significant permanent disability. She has pain and greatly reduced mobility, mostly having to be aided by the use of one crutch or two crutches or, when outdoors, the use of a mobility scooter for walking any more than very short distances. The pain is a regular daily feature which is low-level at rest but rises to significant pain when weight-bearing or walking for more than about ten minutes. The accentuated pain is present for a period of several hours after walking short distances. The Claimant uses pain-relieving analgesic patches overnight and has found these helpful. She also experiences pain in her big toe.
Clearly, with this degree of disability the Claimant's ability to carry on her normal life is greatly affected in almost every sphere. She is predominantly housebound, though goes out on her mobility scooter in the company of her husband from time to time. She can take her scooter into a supermarket but finds it difficult to shop independently. She goes on shopping trips to Lakeside with her husband and to the local shops. She can no longer do housework or laundry, save for polishing, dusting and light housework; she cannot cook but, sitting down, can assist in the preparation of the meal by peeling vegetables or giving similar sedentary help. She cannot use her current bath or shower independently and needs assistance with dressing. Her ability to socialise is greatly reduced and normal holidays cannot be enjoyed as they were. She can no longer take her dogs for a walk, which was one of her favourite pastimes, save with her husband accompanying her, with her on her scooter. She could not do this by herself, as the dogs seek to get on to the scooter or run backwards and forwards in front of it.
The Claimant was an active sociable woman whose life has been significantly curtailed. Fortunately she has a very strong marriage and is given care and support by her husband. Her daughters are also supportive and have taken over the role from their mother of providing some help to the Claimant's 92-year-old father and their grandfather.
It is perhaps not surprising, in the circumstances of these serious injuries and impairment of her life, that the Claimant should suffer from major depressive disorder with anxiety and anger. Dr Turner, the psychiatrist reporting on behalf of the Claimant, said that it was possible that the conclusion of the case would help to some degree and that more energetic treatment would help some of her emotional difficulties, but nevertheless she would be likely to continue with clinically significant depressive symptoms for the foreseeable future. Both Dr Turner and Dr Greenwood, the psychiatrist on behalf of the Defendant, agreed that whilst her physical symptoms persisted, she was likely to have persistent depressive symptoms as well, associated with persistent anxiety.
The Claimant also sustained a mild head injury which has exacerbated headaches which she used to have prior to the accident. It is not the head injury, however, which appears to be responsible for some of the problems she has with memory and concentration, as that is more likely to be a function of her psychiatric problems.
The hernia was unsuccessfully repaired, in that a bulge at the hernia site where the mesh was unable to contract with movement has left her with pain when standing or attempting to lift. This may be helped by a properly fitted corset. She has had another hernia since the accident, but unrelated to it.
The Claimant has also been left with serious unsightly scarring which I looked at in court. She is now no longer capable of the full life which she led before the accident, cannot be as active with her grandchildren, and has lost intimacy with her husband.
The parties have agreed an intensive course of treatment and therapies, including toxin therapy for pain relief, further pain-relieving patches, intensive psychological therapy recommended by Dr Turner and Dr Greenwood, neurological treatment to alleviate her headaches, occupational therapy, and orthotics to provide her with appropriate footwear. The orthopaedic consultants consider that any benefit from orthotics is likely to be limited (B1/4). Mr Earnshaw, the orthopaedic consultant on behalf of the Defendant, said that he thought it extremely unlikely that the Claimant would need or benefit from further orthotics (B2/44), whereas Mr Herron, the Claimant's orthopaedic consultant, said (B1/97) that he expected orthotic and footwear modification would improve her functional capacity but would not allow her to become asymptomatic. The difference would be slight in the sense that she might be able to double the period of time she could weight-bear, but that would only mean increasing her weight-bearing capacity from ten minutes at that time to 20 minutes. In his evidence Mr Earnshaw said that he was not expecting any improvement in her orthopaedic condition or her functionality, but that orthotics, other than major braces, would be helpful, mostly for comfort rather than pain.
The orthotic experts, whose reports were agreed, were more optimistic. Mr Drake thought his less radical solution of custom-made footwear with sole plates and rocker soles would improve the Claimant's current symptoms and lead to improved mobility and Mr Collins, on behalf of the Claimant, thought that she would benefit from a custom-made pre-preg carbon fibre orthosis. Mr Drake said that if his solution did not reduce the Claimant's pain sufficiently, he accepted Mr Collins' suggestion. The cost of orthotic provision over the Claimant's lifetime has been agreed between the parties at £59,000.
On the psychiatric evidence, the conclusion of the litigation and the intensive therapy recommended may assist the Claimant in her anxiety and to some extent her depression, but it is likely that she will have persistent depressive symptoms and some persistent anxiety whilst her physical symptoms persist.
Karen Keen, the care expert for the Defendant, expressed the view that the intensive treatments and therapies which the Claimant was to receive after trial would help to improve her confidence and her ability to cope with life. This view was not shared by Sian Gouldstone, the care expert for the Claimant, who considered that it was too long after the accident now for any improvement to occur.
Having considered the evidence on this issue and having seen and heard the Claimant give her evidence, I conclude that there will be...
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