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Much has been said about the 2020 Court of Appeal judgment in Swift dealing with the disputed method by which claims for the cost of special accommodation following severe injuries are calculated, and rightly so; it was a privilege for one of the authors of this article to work on a case of such wide application and with such benefit for so many Claimants.
However, save to say that it was subject to appeal, legal commentators don’t say much else about Her Honour Mrs Justice Christine Lambert’s first instance judgment. That is a shame as it was a judgment with some real nuggets for Claimants and particularly those who have been affected by limb loss. Now that (most of) the dust has settled in relation to the accommodation issues, we will explore here the other things that Charlotte Swift has given Claimants, and hope it is of assistance.
In October 2013 Charlotte suffered life-changing injuries as a front seat passenger in a car, travelling on the M5 in the middle of 3 lanes when the driver had to react to a vehicle moving out from the inside lane. Unfortunately the driver was unable to control the vehicle and the vehicle collided with the central reservation – there was no other vehicle involved in the collision. Liability was admitted by the Driver’s insurance company and an action was brought on the Claimant’s behalf for personal injury and consequential financial losses.
The Claimant suffered crushing injuries to both feet and lower part of each leg. The left leg could not be saved and the Claimant underwent a left sided trans-tibial (below knee) amputation in November 2013. The right foot was also badly crushed requiring surgery and produced long-term issues with pain and mobility. The Claimant was fitted with a prosthetic limb in early January 2014 and was able to walk unaided shortly thereafter. The Claimant was a very active person prior to her injury and wanted very much to continue in that way (she would eventually go on to take part in at least one Triathlon and probably more by now). This all despite serious complications in the form of phantom limb pain originating from the missing left foot and pain and stiffness on the right side.
The phantom pain in particular would go on to be and remains an issue which affects her on a daily basis, even though she has tried numerous forms of treatment to try to combat it.
The parties to the litigation were unfortunately unable to agree almost all elements of the damages case. It is generally rare in my practice over 22 years or so for so much to be in dispute. This was compounded by the change in the PI damages discount rate changing during the lifetime of the case and the majority of heads of damage being augmented accordingly to a level which gave the Claimant the best opportunity of making the compensation last for the rest of her life. That is of course as it should be, but the case moving from what would have been perhaps a £3m or so damages case to what eventually became an overall award of £5m led to a raft of stand-offs between the two sets of legal representatives.
As a result, the case came before Mrs Justice Lambert in the Queen’s Bench Division of the High Court in London over 8 days at the end of April/start of May 2018. The following issues were, in our view, of particular assistance to Claimants:
Judge Lambert considered the prosthetics recommendations as put by the Claimant and Defendant. On an everyday basis, the Claimant had used the ‘Elation’ prosthetic by Össur. This is a modular prosthesis incorporating a heel device, adjustable by the user, that can accommodate heels up to two inches in height. It did however have a fixed ankle, which affected Charlotte’s gait and made it tiring to wear. She also found its fixed position to present an embarrassing trip hazard to people moving past her, for instance on public transport.
By the time of trial the Claimant had trialled Ottobock’s ‘Meridium’ prosthetic, a microprocessor foot which adjusts itself to walking speed and ground conditions, slopes, stairs and uneven ground. She reported being able to walk more smoothly and naturally with much more confidence. Crucially the ankle was not fixed, so she could put the foot flat when sitting down and she could also use it whilst wearing heels. The downside was that the Claimant found the Meridium less attractive and only felt comfortable with it when wearing trousers or a longer skirt.
On this basis the Claimant sought 2 everyday limbs for the rest of her life – the Elation and the Meridium due to the differing benefits of both to her lifestyle. In addition, she sought a water activity limb and a running blade to ensure her ability to take part in her intended sporting activities.
Overall the Defendant sought to rely on the contention that Claimants tend to rationalise their equipment needs as they age and the Court should take that into account when considering the prosthetic allowances in general. The Defendant proposed a prosthesis called the ‘Echelon’ foot by Blatchford which, though powered internally by hydraulics and not a microprocessor, they argued performed to the same standard as the Meridium, was more cosmetic and was lighter. What would prove crucial in the court’s assessment, however, was the Claimant would have had to visit the clinic to have the limb adjusted every time she wanted to wear shoes with different heel heights as the heel had to be manually adjusted each time by a prosthetist.
Judge Lambert was not convinced by arguments relating to rationalisation and allowed Charlotte the cost of the Meridium and Elation limbs for life, so she would have a comfortable, flexible limb and a cosmetically acceptable limb she could wear in the summer months with a skirt or shorts. The judge found that Charlotte needed the independence of being able to move between different shoes without visiting the clinic to adjust her prosthetic and wear heals when she wanted to. The Court also, quite properly, rejected the Defendant’s argument that the Claimant should only be entitled to the self-adjusted heel raising benefits of the Elation foot until the age of 78. The argument being that after that age the Claimant’s desire to wear high heels would diminish.
Judge Lambert also took into consideration Charlotte’s love of sports and allowed the cost of two separate sports limbs: a water-activity prosthesis and a running blade. The Defendant argued that Charlotte would not use the running blade from age 58 and would turn to lighter activities such as swimming. This was rejected, as the judge appreciated that Charlotte would continue to be active into her later years, and would continue to use the most appropriate limb for the sport in question.
The overarching finding in our view is that there is no validity in the idea of rationalisation in the presence of reasonable evidence from the Claimant as to the appropriateness of any particular suite of prosthetic needs.
Further, it was apparent, if practitioners were not already aware, that a Claimant would be well-advised to trial a range of possible limbs before deciding on any one (or more) model(s). The value of having clear video evidence of those limb trials is essential in assisting the Court with its decision.
Turning to care, there was an important development regarding the method of assessment of care needs by an expert witness. In the Defendant’s care report, the expert reported the Claimant had told her she did not intend or wish to have paid assistants in her home. The Defendant’s case on the basis of that report was that the Claimant was a very private person and so would not wish to engage ‘carers’ or a nanny. However, disclosure was sought and ordered during the trial of the care expert’s handwritten notes of her assessment. On examination of those notes, the Judge found the expert had materially misunderstood the Claimant; the notes in fact stating only that they are a private family and would want a personal introduction to any support worker before making any decision.
As a result, much of the Defendant’s arguments as to the level of care as pleaded by the Claimant fell away. Even before the recent case of Mustard, this judgment in Swift was a good source of precedent if it was ever needed, that an expert witness must evidence any disputed statement made by a Claimant in the examination.
An important issue that touched on the assessment of care needs (as well as accommodation needs) was the number of children Charlotte would have. In 2016, she had conceived her son through IVF treatment, and gave evidence pre-trial that intended to have at least one more and ideally 3 children in total. By the trial, however, she had more experience of being a working mother with a disability, and was conscious of her and her husband’s ages. The judge accepted this reasoning and continued on the basis that Charlotte would have one further child.
The judge then proceeded to deal with stages of the Claimant’s life according to the age of her children and her predicted deterioration.
Judge Lambert allowed care until the birth of Charlotte’s second child to assist with their house move. During Charlotte’s maternity leave, Judge Lambert refused the cost of a full-time nanny, but allowed care to help Charlotte with chores and tasks she could not do safely. From then until the youngest child reached secondary school age, the judge allowed an increased amount of care per week. This then continued until Charlotte would reach 80 years old, with the amount of commercial care increasing to reflect the fact that the Claimant’s husband would be less able to carry out chores for her.
The Claimant sought £72,626 over the course of her life. The Court was provided with evidence during the course of the trial that it was a painful therapy, intended to support the upper body musculature which comes under strain when using crutches. The Claimant explained she found it to be effective in relieving pain in her shoulders and neck and has therefore persisted with the therapy even though it was not pleasant. The Claimant’s orthopaedic expert supported sports massage as a complement to physiotherapy.
The Defendant submitted the claim should be rejected: the physiotherapists had made annual provision for physiotherapy and there was no reasonable need for any additional musculoskeletal therapy and that physiotherapists could provide both physiotherapy and sports massage.
Rejecting the Defendant’s position, the Court accepted sports therapy was reasonably needed in addition to the claim for physiotherapy because the physiotherapy was intended to address acute soft tissue injuries rather than maintain muscle condition generally and the Claimant reported she found the sports massage therapy helpful. The Claim was accepted as pleaded with no reductions.
Whether the Claimant could recover the cost of upgraded air travel was a key issue in dispute. The Claimant contended it was necessary on all flights over 2 hours in duration (including waiting time on take-off and landing) on the basis the Claimant would need additional room for comfort generally, and particularly to remove her limb in privacy. The Defendant argued that economy class was sufficient and that she could remove her limb using a blanket for privacy purposes.
Lambert J allowed the cost of premium economy or higher for all flights longer than within the UK or near-Europe (up to 2 hours or so).
The question then arose of whether this would include the cost upgrading for the rest of her family so they could remain together. Needless to say the Defendant asked the Court to resist that cost as the Claimant’s husband could travel with any children in economy; it being only the Claimant who requires the upgrade. The judge found for the Claimant; the Claimant should be able to sit with her partner and children (up to any child reaching the age of 18) as she would have done, had she never been injured.
This is not just a case about accommodation, but provides a first instance judgment rich in learning points for future Claimants affected by amputation. It deals with many of the effects of limb loss on mobility and sport, childcare, employment and holidays among other aspects of everyday life.
At Kingsley Napley, we are experienced in, and passionate about, assisting Claimants and families who have been affected by limb loss.
If you or someone you know has been affected by a serious injury following an incident, please contact a member of the team on 020 7814 1200.
If you would like any further information or advice about the topic discussed in this blog, please contact our Medical Negligence and Personal Injury team.
Phoebe Alexander joined Kingsley Napley in 2020. She is currently a trainee solicitor in the Medical Negligence and Personal Injury team. Her previous seat was with the Private Client team, where she assisted with the administration of trusts and estates, and the drafting of Wills and Lasting Powers of Attorney. Phoebe also assisted with Court of Protection matters, including the drafting of Deputyship applications.
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