Amputation Seminar

Amputation Seminar

Friday 23rd Feburary 2024

Eastside Rooms, Woodcock Street, Birmingham, B7 4BL

Amputation Seminar

Friday 23rd February 2024

The Eastside Rooms, Birmingham

Contents

Section 1

Programme – Page 1

Section 2 – Page 3

Welcome

John Coughlan KC, No5 Barristers’ Chambers

Section 3 – Page 9

A personal and practical overview to the rehabilitation process and what can be achieved.

Henry Dunn and Kat Sizer – Physiotherapist

Section 4 – Page 13

An education in the recent developments and future technologies in prosthetics - how to meet the needs of the amputee.

Matthew Hughes – Prosthetist

Section 5 – Page 15

Understanding the role and why a good expert is essential to a successful claim.

Rhodri Phillip - Consultant in Rehabilitation Medicine

Section 6 – Page 27

Case Law update on quantum issues in amputation cases

Robert Smallwood and Nicolas Xydias, No5 Barristers’ Chambers

Section 7

Members List – Page 73

Amputation Seminar

23rd February 2024

11:00 – 11:45

11:45 – 12:00

12:00 – 12:45

12:45 – 14.00

14:00 – 14:45

Registration

Welcome and Introduction

John Coughlan KC, No5 Barristers’ Chambers

A personal and practical overview to the rehabilitation process and what can be achieved

Henry Dunn and Kat Sizer – Physiotherapist

Lunch

An education in the recent developments and future technologies in prosthetics - how to meet the needs of the amputee

Matthew Hughes – Prosthetist

14:45 – 15:30

15:30 – 15:45

15:45 – 16:30

16:30 – 17:15

17:15

Understanding the role and why a good expert is essential to a successful claim

Rhodri Phillip - Consultant in Rehabilitation Medicine

Refreshment break

Case Law update on quantum issues in amputation cases

Robert Smallwood and Nicolas Xydias, No5 Barristers’ Chambers

Q&A with panel members and experts

Networking drinks

John Coughlan KC

Personal Injury

Year of Call: 1999 | Year of Silk: 2021

Email Clerks: pi@no5.com

Appointed to silk in March 2021, John is looking forward to establishing a busy and successful practice as Leading Counsel.

John practises exclusively in clinical negligence and serious personal injury cases, acting for Claimants and Defendants. John has over the course of his practice acquired signifcant experience ranging from the straightforward road traffc accident, highways trips, civil fraud and accidents at work, to high value and complicated claims involving head and spinal injuries, group litigation and occupational disease. His clinical negligence experience renders him particularly adept in addressing issues of causation and cases involving multiple tortfeasors. Across the years, John has also acquired extensive experience of appearing before Coroners and in Criminal Injuries Compensation hearings.

John’s personal injury practice is now focused on high value fatal accidents and catastrophic injury cases, principally relating to brain and spinal injury, but including serious orthopaedic injury (including amputation), severe burns, sensory loss and psychiatric injury. John is also heavily instructed in Fatal Accidents Act claims.

Many of his cases involve multiple Defendants, and he is skilled at exploring and distilling complex issues of causation and quantum. Many of his cases involve consideration of periodical payments, accommodation issues and statutory funding.

John is often instructed in cases where serious personal injury has been followed and worsened by medical mishap. John is particularly adept handling expert witnesses in conference and at Trial and enjoys working closely with the solicitor client on diffcult cases. He is regularly commended for his client care skills.

John is consistently recommended in the directories and has in recent years achieved Top Ranked status from Chambers UK Bar and Leading Individual Tier 1 status from Legal 500.

"John is a total team player. He is methodical, meticulous and his attention to detail is second to none; he is always across all the issues."

Legal 500 2023 - Personal Injury

"John’s strengths are his attention to detail, practical advice, and view of the bigger picture. He is a fantastic advocate, calm and measured whilst getting his points across skillfully. He is also very good with witnesses, putting them at ease and very approachable. Overall, he is a very safe pair of hands."

Chambers UK 2023 - Clinical Negligence

"John’s strengths are his attention to detail, practical advice, and view of the bigger picture. He is a fantastic advocate, calm and measured whilst getting his points across skillfully. He is also very good with witnesses, putting them at ease and very approachable. Overall, he is a very safe pair of hands."

Legal 500 2023 - Clinical Negligence

“He is responsive, meticulous in his written work and unfappable in court.”

Chambers UK 2022 - Clinical Negligence

“Fantastic level of attention to detail, excellent client care skills and sublime advocacy skills at Trial or hearing. One of the best in his feld.”

Legal 500 2022 - Clinical Negligence

“A very insightful barrister - he is calm, measured and gets to the heart of issues quickly.” “An undoubted talent. His advice is frst-class and he can be relied upon to produce the very best results possible, regardless of value and complexity. He is an extremely talented advocate and his attention to detail is second to none.”

Chambers UK 2021 - Clinical Negligence

“A formidable advocate with razor-sharp knowledge and excellent client care skills with catastrophically injured clients.”

Legal 500 2021 - Clinical Negligence

“He is an absolutely standout barrister who can turn around any kind of case.” “He is able to advise clients in very technical issues in a concise, straightforward manner.” “He has a brilliant manner with clients and has an aura which makes all of those involved feel at ease.”

Chambers UK 2020

“An extremely diligent barrister with a keen eye for the details.”

Legal 500 2020

Notable Cases

SA v UHBNHST [2020] EWHC 3384 QB

Acting for Defendant at Trial and in High Court appeal covering many aspects of the law on limitation, including detailed analysis of the application of the s.33 discretion in clinical negligence cases

KJ v LM Ltd [Feb 2020]

Acting for Claimant in complex somatoform disorder case arising from RTA for several years before achieving successful settlement for £400,000 at JSM

NK v EUI Ltd [Aug 2019]

Acting for Claimant in multiple orthopaedic injuries claim arising from RTA with uncertainty surrounding prognosis and earnings claims. Settled for £300,000

Re DM (December 2018)

Acting for Claimant in a Fatal Accidents Act claim arising from a tragic road traffc accident in which mother and daughter killed. Claim settled at JSM for 280,000

KH v Dudley Group of Hospitals NHSFT (August 2018)

Acting for the Defendant in achieving a nuisance value settlement in a claim pleaded to 2m. Issues of surgical negligence interwoven with allegations of historic sexual abuse

SJ v New Street Autos (March 2018)

Acting for Claimant who suffered severe burns injuries at work. Liability and employment issue disputed, but resolved at JSM for 250,000

JM v (1) Utopia Bathrooms (2) University Hospitals Birmingham NHS Foundation Trust (3) GA (4) Walsall Healthcare NHS Trust (February 2018)

Acting for two Defendant Trusts in a mixed personal injury and clinical negligence claim, concluded at mediation for gross damages of 950,000

Re IM (May 2015)

Acting for the Claimant in a personal injury claim arising from brain injury acquired in a road traffc accident. Contributory negligence in play, and the Claimant’s capacity fuctuated. Settlement achieved at JSM for damages of 750,000 plus index-linked PPOs for care

MG v BH and others (March 2014)

Acting for the Claimant in a case where one effect of the accident was to prolong the protected party Claimant’s life

expectation. Settled at JSM for damages of 1m gross of contributory negligence

Re VC (2011)

Acting for the Claimant with Leading Counsel. The Claimant was caused catastrophic injuries in a road traffc accident caused by her aunt. There were signifcant issues of contributory negligence (seatbelt and alcohol) and a vast array of medical and other expert evidence. Settled at JSM for damages of 2.675m

Re PD (2010)

Acting for the Claimant with Leading Counsel. Complex claim in which a promising IT consultant was assaulted both inside and outside a public house, knocked unconscious into the road and then run over, causing severe head and bodily injuries. Issues of liability, foreseeability, contributory negligence and causation. Settled at JSM for damages of 1.4m

Carver v BAA [2008] EWCA Civ 412

Appearing below and in the Court of Appeal in controversial case relating to Part 36 Offers

Powertrain Group Litigation (2008-10) with Leading Counsel

Group litigation on behalf of former employees of Powertrain at the Longbridge car plant, Birmingham who claimed damages for respiratory disease caused by exposure to contaminated coolant oil

Collins v Tesco [2008] EWCA Civ 1308

Court of Appeal guidance in relation to the approach to knowledge under Limitation Act 1980 s.14

Appointments

Queen’s Counsel (2021)

Advocacy Trainer, Midland Circuit

Memberships

Midland Circuit

AvMA

Qualifcations

BCL (Oxon) 1998

Director and Member of Chambers Management Committee, No5 Barristers’ Chambers

Personal Injuries Bar Association

LLB (Hons) (Bris) 1997

Chris Bright KC

Serious Injury

Year of Call: 1985 | Year of Silk: 2009

Email Clerks: mt@no5.com

Chris Bright QC is Head of the Clinical Negligence Group at No5 Barristers’ Chambers and is recognised as a leading personal injury and clinical negligence Silk. He works nationally for leading claimant provincial and London solicitors and national defendant insurer frms. Chris conducts the highest level of claims in terms of complexity and value GBP10mGBP20m (pre- and post-Discount Rate Review), particularly those involving complex medical, causation and CCG/local authority funding/PPO issues. He regularly lectures for Headway, the SIA, AvMA and Pace Rehabilitation (and can offer training) on subjects such as maximising damages in catastrophic injury claims, litigating CP/neonatal and amputation claims and statutory funding. In 2017 he spoke on amputation claims to the Pace Rehabilitation Annual Conference and in 2018 on key issues in spinal injury litigation at the Robert Jones and Agnes Hunt Hospital. Chris is consistently rated as a leading silk in both practice areas in Chambers and Partners and The Legal 500.

Chris is known by solicitors for his approachability in informally screening cases at an early/pre-expert stage and providing constructive advice upon tactics and the instruction of recommended experts. Recently Chris secured damages of GBP22.75m in a single week.

Examples of recent cases are:

- Re: AA. Failure promptly to diagnose/treat pneumococcal meningitis in an 8-month child, now 19 years of age, causing severe frontal/parietal brain damage and learning diffculties, autism and epilepsy. Claimant (from a high-achieving professional family) will never live independently or pursue gainful employment, will always lack capacity and be dependent on others. Settlement agreed 3 weeks before trial for a lump sum of GBP5.4m with a lifetime PPO of GBP228,000 which, given the claimant’s residual life expectancy of over 60 years, amounted to a settlement of GBP19.15m, if capitalised.

- Caine Ellis v Paul Kelly (with his mother Violet Ellis as Part 20 Defendant) [2018] EWHC 2031 (QB), an important catastrophic injury/RTA case on the road safety responsibilities of an 8-year-old child and his mother.

- a TBI claim involving a Libyan national on holiday in the UK with international expert evidence/an immigration case run in parallel. Settlement for a lump sum of GBP3.625m gross and a complex PPO of GBP250,000 pa for care/case management in the UK, GBP175,000 in Egypt, GBP125,000 in Libya and GBP110,000 in Tunisia, depending upon future residency. Given the Claimant’s life expectancy, the lump sum equivalent (pre-Discount Rate review) was GBP12m.

- a CP claim at the most severe end of the spectrum of physical and mental defcits. Settlement was for a lump sum of GBP4.237m and care/case management PPO of GBP285,000 pa. Again, given the Claimant’s life expectancy of a further 50 years, this would otherwise represent a (pre-Discount Rate review) lump sum settlement signifcantly in excess of GBP12m.

- Re: PG. Settlement of GBP2.6m in an above-knee amputation employers’ liability claim. Case of particular interest because, unusually, the Claimant had undergone an elective amputation due to debilitating CRPS which he developed following an injury at work.

"Chris is very thorough in his case preparation and very approachable. He is able to put clients at ease in conferences. He is also very capable of managing a team of experts."

Legal 500 2023 – Personal Injury

"Chris is extremely thorough and knowledgeable on complex medical and legal issues." "He is an excellent advocate, extremely client-focused and a pleasure to work with."

Chambers UK 2023 – Personal Injury

“A good advocate and a good negotiator. He is also very hard-working and has good judgement.” “He has a very clear and thorough manner with clients and is always willing to go the extra mile.” “Extremely thorough and knowledgeable about complex medical and legal issues.”

Chambers UK 2022 – Personal Injury

Appointments

Recorder - Crown and County Courts Bencher of Gray’s Inn

Publications

Amputation/subsequent prosthetic use in cases of Chronic Regional Pain Syndrome

Henry Dunn (Arm Amputee & Dorset

Orthopaedic Pa�ent)

Henry Dunn (Arm Amputee & Dorset Orthopaedic Patient)

On the 15th November 2022, during his gap year, university graduate Henry travelled Southeast Asia and Australia. Whilst working on a remote cattle station in the Northern Territories, he sustained a traumatic below-the-elbow amputation.

Since being repatriated to the UK, Henry’s positive mindset and engagement in his rehabilitation has allowed him to explore great opportunities and a new love for the sport CrossFit. He has successfully competed in, recently winning the Wodaptive Mixed Pairs competition; a competition where teams are made up of one adaptive athlete and one able bodied athlete.

Henry will share his personal experiences and, in collaboration with his physiotherapist Kat, outline his progression with his prosthetic provision and associated therapies.

Kat Sizer (Physiotherapist)

Kat is a Physiotherapist who has worked in the specialist field of Amputee Rehabilitation since 2010 and joined the team at Dorset Orthopaedic (then Pace Rehabilitation) in 2015. Based at the Amersham clinic, she has wide experience of the rehabilitation of complex traumatic injuries and extensive knowledge of the advanced prosthetic training for lower and upper limb patients. Kat is passionate about her clinical work and has a specialist interest in exercise and sports therapy to aid recovery. Kat has experience of writing expert reports for both claimant and defendant cases, and although she is taking a hiatus from expert witness work, she looks forward to future work in this area

Matt Hughes (Prosthetist/Orthotist)

Matt joined Dorset Orthopaedic in 2001 after graduating from the University of Salford with a degree in prosthetics and orthotics. He began his career as a Prosthetist/Orthotist, developing a particular interest in paediatric treatment.

Before becoming Clinic Manager at the Southern Clinic in Ringwood in 2013, Matt was responsible for the development of clinical partners for Dorset Orthopaedic around the world, presenting and lecturing on the use of silicone in prosthetics and orthotics, as well as developing new everyday silicone solutions for patients.

In 2016, Matt became Clinical and Silicone Services Director with the goal of growing and developing clinical care services in the UK and external silicone partner networks globally.

Matt became Managing Director here at Dorset Ortho in 2019 and has steered the business successfully through a global pandemic, installing policies to keep our patients and staff safe. He remains passionate about his clinical work and helping patients return to improved levels of comfort, mobility and independence is a key focus for him. He particularly enjoys helping children and feels inspired when he sees a child overcome the obstacles that face them.

When he isn’t working, Matthew loves the outdoors and enjoys water sports including sailing and paddleboarding, where he is often accompanied by his dogs.

Dr Rhodri D Phillip OBE

Dr Rhodri Phillip is a consultant in rheumatology and rehabilitation medicine, currently working in private healthcare. On qualifying as a consultant in 2008 he joined DMRC Headley Court (and latterly Stanford Hall) and the complex trauma team, delivering care to patients with a range of issues from multiple fractures to amputations, spinal cord and peripheral nerve injuries, and CRPS. He was the clinical lead for the service and, prior to leaving the military in early 2021, had been the Clinical Director of DMRC for three years. He also works as a rheumatologist. He helped introduce osseointegration to military amputees and was awarded an OBE for services to military rehabilitation in 2018. His focus is on providing coordinated and goal-driven, team-delivered rehabilitation and clinical care in order to maximise everyone’s chances of a return to an active and fulfilling life following injury or disease onset.

A perspective on Rehabilitation Medicine

Who am I?

§ Medical training completed in both civilian and military environments

§ Consultant in Rehabilitation Medicine and Rheumatology since 2008

§ Clinical Lead for the military complex trauma service 2010-2021

§ Clinical Director DMRC Headley Court/Stanford Hall 2018-2021

§ Currently working independently, with Pure Sports Medicine in London, and with Remedy Healthcare

CV details of note

§ Rehabilitation lead to the military trauma team at QEH during the conflict period and beyond.

Set up and led the military spinal cord injury service, designed to complement NHS provision

§ Set up and led the military complex foot and ankle service and led on the development of a UK version of the off-loadingbrace

Was a member, and subsequent chair, of the military genital injury service

§ Led on the use of osseointegration in military amputees and on a joint trial between the NHS and MoD

Continue to have a varied clinical caseload including all aspects of MSK trauma

How does military and civilian rehabilitation differ?

§ In principle it doesn’t – similar training pathway and syllabus

§ NHS more focused on neuro-rehabilitation or prosthetic care in isolation

§ Military approach more musculoskeletal focused, as resourced as a vocational healthcare service – MSK primary issue affecting fitness to deploy

§ Military healthcare has a longstanding multi-disciplinary working ethos

§ Military rehabilitation focused on return to service where possible or optimal recovery prior to discharge

§ Impact of resources on the rehab ‘ceiling’ and the mindset of staff

Rehabilitation Medicine – jack of all trades, master of none

§ Rehab often provides the link between surgical and physician specialities

§ Clinical experience can often aid in the identification of specialist needs

§ Able to interpret the language other specialities may use and appraise other specialityclinical plans

§ Extensive ‘phone a friend’ contacts list

§ Very used to working in an MDT environment and carrying ‘risk’ for other clinicians

§ Relatively comfortable working with unknowns

Think of trauma as a systemic inflammatory insult to the body

Potential to influence all aspects of the body, either directly or indirectly, secondary to the injury or secondary to the subsequent treatment

Importance of experiential learning – don’t know what you don’t know

The Team Consultants Physiotherapists

Nurses

Psychiatrist Occupational Therapists

Mental Health Nurses Patient Speech & Language Therapists

Radiographer

ERIs Dietician

Podiatrists

Health Care Assistants

Prosthetists Doctors

Social Workers Psychologists

Recreational therapists

Vocational OT and adult education services

Key Principles of Rehab

§ Utilise a multi-skilled, professional team

§ Consider the patient as suffering from a systemic inflammatory process

§ Maximise function

§ Promote future health

Additional Support

Specialist clinic support (DMRC, RCDM and military and civilian Secondary Care)

Plastics

• Peripheral Nerve

Pain Management

• Genital reconstruction Endocrine support

Urogenital support

Foot and Ankle

Spines

General Orthopaedics

Fertility Management

Maxillofacial support

NICE Jan 2022

§

When is the right time for rehab?

§ Think of it like a treatment or drug – right intervention, right time, right dose, right duration, right frequency – all liable to change

§ Miss an opportunity and the treatment may become more difficult (expensive)

§ Fancy kit doesn’t necessarily mean better outcomes – right tool for the job at the time

§ Goals and needs will change with time

§ No ‘one size fits all’

Developments in Rehab

§ Core principles unchanged

§ Technology undoubtedly has a role but not an alternative to physical input

§ Beware social media – rarely a true representation

§ Patient often the most motivated researcher – clinician’s role is to critically appraise findings and guide

§ Sometimes companies unaware of how significant their developments are, occasional unexpected benefits, and some gains may not be seen for years

Genium vs old C-leg

§ Advertised as an anti-stumble feature

§ In reality - Reduced low back pain - Reduced overall fatigue - Reduced fall rate - Improved utility - Improved functional abilities

Off-loading brace

Novel use of spinal cord stim

§ A Review of Functional Restoration From Spinal Cord Stimulation in Patients With Spinal Cord Injury. Lin et al. Neurospine 2022;19(3):703-734

§ Military experience is n=1, with improvements seen in bowel, urinary, and sexualfunction,improvedability tostandandtransfer,reducedmedication requirement

§ Completed privately in UK, or by accident, but increasing numbers overseas. Some specialist clinics

Osseointegration

Newer prosthetic technologies

§ Microprocessor ankles – better terrain accommodation, less fatigue and stress on residual limb

§ Multiple versions – right one for the right person

§ Powered ankles – particularly useful in less fit amputees

§ Potential roles to change what is expected in later life – retained endurance or reduced joint OA? Won’t know till we try

Prosthetic issues

§ Elective amputation should always be combined with a TMR or RPNI procedure – nothing to lose

§ Socket and silicone sleeves are always going to lead to sweat issues and riskoffolliculitis – antibiotic need and time off leg – hence accommodation and aids for worse case scenario

§ Likelihood of reduced function as they age – potential role for newer prosthetic technologies – MPAs,Powereddevices,morestableMPKs

§ Risk of OA in retained limb 2-3 x that of age matched normals

Relevant military research

§ Old data from WW2 – Unilateral AK 1.6 x and Bilateral AKs 4 x increased CV risk vs disfigured (non -amputee) cases

§ Multiple theories – plus potential role of pancreatic injury

Recent research showed presence of metabolic markers associated with increasedCVriskinmilitaryasymptomaticbilateral amputeeswithin5years of injury – ADVANCE Study

§ Newer kit has changed reality of previous energy expenditure ‘normal’

- TTA 100%; unilateral TFA 120%; Bilateral TFA 160% (historically 300%)

§ So, modify what we can – stop smoking, healthy lifestyle input, regular exercise, optimise return to normal life – personal and clinical elements can all help – good rehab puts people in the right frame of mind to make changes

SIGAM Grading

A – Non -limb user - Abandoned use of prosthesis or only use a non -functioning cosmetic one.

§ B – Therapeutic - Prosthesis only used for transfers; to aid nursing; for walking with physical aid of another or during therapy.

§ C – Limited/Restricted - Walk ≤50m on even ground +/- walking aids. a=frame, b=2 crutches/sticks, c=1 crutch/stick, d=no aid.

§ D – Impaired - Walk ≥50m on level ground in good weather with walking aids. a=2 crutches/sticks, b=1 crutch/stick.

§ E – Independent - Walk ≥50m without walking aids except to improve confidence in adverse terrain/weather.

F – Normal - Normal or near normal walking.

§ Prosthetic Limb Users Survey of Mobility (PLUS-M)

§ The PLUS-M is a 12 item self-administeredquestionnaire The 12 questions relate tothe amputee’s mobility overdiffering terrains and in a range of situations whilstwearing their prosthesis The resulting score is expressedas aT-score between21.8 and71.4, with higher T-scores representing higher levels of mobility

§ Converted to % that places the patient in anappropriategroupingand their relative level of function compared to peers (age matched andamputation cause)

§ Reference: www plus-m.org

Legal vs Clinical

§ In trauma often hard to generalise – unique patterns of injuries in unique people

§ Objective comments in legal papers are essentially guesstimates –accepted legal norms vs reality – riskofthemostlearnednotnecessarily being up to date or there having been enough time to see the long-term impactofnewtechnologies

§ Legal process not conducive to determining ‘normal life’

§ Often benefit not truly realised unless tried – importance of trials of new kit or inputs and the importance of PROMs and CROMs in assessing effect

§ Don’t know what you don’t know

The case manager

§ Previous military role was effectively case manager

§ However… - I was actually in charge of the care pathway - Coordinated care within one organisation - Resources from clinical to social to housing to family support to third sector engagement - Senior enough to enact change, influence levers of power, and take risks

§ In my opinion essential for patients post-injury and when progressing through the legal process

§ Rarely in control enough to properly be able to do their job

Remember…

Key principles of rehab

§ Utilise a multi-skilled, professional team

§ Consider the patient as suffering from a systemic inflammatory process

§ Maximise function

§ Promote future health

Thanks for listening

Dr Rhodri Phillip OBE

permutuarehab@gmail.com

Robert Smallwood

Serious Injury

Year of Call: 1994

Email Clerks: mt@no5.com

Robert practices exclusively in the felds of Personal Injury and Clinical Negligence, acting for Claimants and Defendants on an approximate equal basis.

Robert’s caseload is almost exclusively in serious injury cases worth more than 250,000 or those with complex liability and causation issues.

Over the past 12 months he has acted in cases involving:

- Serious brain injury,

- Serious spinal injury, - Limb paralysis,

- Limb amputations,

- Disabling Pain Disorders,

- Fatal Accident claims with complex dependency issues,

- Vicarious liability for physical and/or sexual abuse,

- Cases involving complex quantum issues and/or the need for forensic accountancy evidence,

- Cases involving a loss of chance,

- Clinical Negligence,

- Fraud

- Robert also lectures to solicitors and insurance clients on all aspects of personal injury litigation and recent developments in the law.

Career

Called to the Bar 1994; lectures to solicitors and insurance clients on all aspects of personal injury litigation and recent developments.

Recommendations

“Robert is a phenomenal operator, capable of dealing with the highest value cases. He is always well prepared and provides comprehensive advice in terms that clients can understand. He is a tenacious advocate that leaves no stone unturned during cross-examination.”

Legal 500 2023

“Robert is a tenacious advocate.” “Robert is excellent. He is strong on the detail.”

Chambers UK 2023

“Very in-depth analysis of any matters related to the claim. Gets on well with clients and puts them at ease very quickly.”

Legal 500 2022

“His attention to detail, ability to communicate well with claimants and his willingness to go the extra mile make him

stand out.”

Chambers and Partners 2022

“He combines excellent negotiation skills with a very good client manner and willingness to fght in diffcult cases.”

Legal 500 2021

“Thorough, excellent on his feet and very good with clients.” “He is unfappable in court and excellent in crossexamination. His paperwork, attention to detail and ability to master complex expert evidence is consistently exemplary.” Chambers UK 2021

“A particularly strong junior.”

Legal 500 2020

“Hard-working and very good on serious claims.”

Chambers UK 2020

Notable Cases

CLAIMANT

W- RTA. Cyclist struck by speeding vehicle. Estimated value GBP 20m+. Severe brain injury and below knee amputation. Liability in dispute.

L- RTA. Pedestrian struck by police vehicle on emergency call. Liability compromised 72.5/27.5 in favour of pedestrian. Estimated value GBP 4m+.

E- RTA. 5 day liability trial against driver and highway authority. 100% liability established against driver. Subtle brain and severe orthopaedic injuries. Case settled for GBP 1.4 m.

S- RTA. Complex brain injury and personality disorder. Value estimated GBP 4m.

R- EL. Crushing injury by reversing excavator. Liability in dispute. Value GBP 1m+.

H - RTA. Tetraplegic with signifcant brain injury. Defendant arguing ‘Act of God’. GBP 9.4m settlement.

F - RTA. Brain injury with complex personality issues. GBP 5m settlement.

B - RTA. Brain injury after falling from bonnet of father’s car. Value GBP 1m+.

G – OLA. C slipped down stairs in a nightclub. Brain injury. Case listed for 5 day liability trial and settled on 1st day. Settled GBP 3m.

C - Brain injury after falling from height at work. Liability in dispute. Estimated value GBP 5m+ .

T - Brain injury. ‘Loss of edge’ in running family business. Estimated GBP 1 m+.

L - Quadraplegic case. 5 day liability trial. GBP 2.5m settlement.

W - Brain injury with complex personality disorder and capacity issues. Value GBP 3m+.

F - Brain injury with complex personality disorder. Value GBP 2m+.

S - Complete brachial plexus injury. GBP 1m settlement on full liability basis.

B - Complete brachial plexus injury with severe CRPS. Value GBP 1m+ .

R - CRPS. Value GBP 1m+.

T - Pain disorder arising out of road traffc accident. GBP 750,000 settlement at JSM. DEFENDANT

N RTA. Brain injury. Capacity dispute. Value GBP 4m+.

S- OLA. Fall from Scaffolding. Brain injury. Liability in dispute. Value GBP 2m.

B- RTA. Cyclist v car. Liabiity in dispute. Brain injury. Capacity in dispute. Est value GBP 5m+.

B- EL. Fall from scaffolding. Pelvic injuries. Value GBP 1m.

A-EL case listed for 5 days. C discontinued claim a few days before trial. Despite the Claimant undergoing back surgery D made a application for a fnding of fundamental dishonesty.

R- EL case listed for 5 day trial. Liability disputed. Teacher sustained back injury when child moved chair.

A-Vicarious liability case involving an assault by one security guard on another. Liability in dispute. Extension of VL

principles. Case due for liability trial in 2020.

L - Brain injury. Liability in dispute. Value GBP 3m+.

F - Brain injury. Value GBP 2m+.

Memberships

PIBA AvMA

Qualifcations

LLB (Hons)

Nick Xydias

Serious Injury

Year of Call: 1992

Email Clerks: mt@no5.com

Nick practices exclusively in the area of personal injury, focusing on high value claims and claims involving injuries of the utmost severity.

Nick is at ease dealing with high-value claims involving life-changing injuries for both Claimants and Defendants without leading counsel but is also lead in appropriate cases.

Nick is instructed in most cases at a very early stage, where he is called upon to devise the most effective litigation strategy that will lead to a successful resolution of the claim. He is regarded as pro-active, accessible, decisive and very clear in the advice he gives. He has a strong grasp of technical issues arising from expert evidence and is adept at clarifying and strengthening his case whilst conferring with experts from a very broad range of disciplines. Both at trial and during joint settlement meetings, Nick adopts a calm but focused approach aimed at resolving claims on the most favourable terms possible.

He is consistently ranked as a leading junior barrister in the sphere of personal injury by both Chambers and Partners and the Legal 500.

Recommendations

"Nicholas is not afraid to take on a diffcult case. He is great to have in your corner." Chambers UK 2023

"Nick is a formidable advocate who quickly gets to grips with the key issues in a case and through skill and extensive expertise, navigates through the complexities of the claim to the beneft of the client. He has excellent attention to detail. He is also able to gain the confdence of clients with good manners and a personable approach." Legal 500 2023

"He is wonderfully effcient and a very good advocate. He's also very approachable." Chambers UK 2022

"Advice is always comprehensive, legally excellent and level headed; turnaround time is exceptional. He is a frstclass advocate, knowing when to push on with a line of argument and also when to bring a line of questioning to an end."

Legal 500 2022

“Nick has a broad range of expertise encompassing industrial disease and catastrophic brain and spinal injury claims. He is particularly well regarded for his handling of cases arising from RTAs and accidents at work. He acts for both claimants and defendants. “He has an excellent rapport with clients and really puts them at ease.” “He has the ability to master expert evidence and enhance it via conference with experts.””

Chambers UK 2021

“Very thorough, personable with clients, he handles unrealistic client expectations well.”

Legal 500 2021

“He’s a safe pair of hands, doesn’t pull any punches and great when you have a diffcult client.” “Thorough, knows his stuff, passionate about getting the right result and has a fast turnaround.”

Chambers UK 2020

“He is able to quickly identify the issues in a case and focus on the key points. He’s very good with clients, manages expectations very well and drives the case forward.” “He’s good on paper, his advice is detailed and he’s always very well prepared.”

Chambers UK 2019

Notable Cases

Nick’s current caseload includes the following representative cases :-

L v BSP

A claimant whose dominant hand was amputated in an industrial accident. Claim worth in excess of £1,000,000

W v MIB

A claimant who suffered a below knee amputation as a consequence of a road traffc accident. Claim worth in excess of £1,500,000

DA v TVGC

An occupier’s liability claim where the Claimant suffered brain injury after a fall at a golf club. Claim worth in excess of £1,000,000

DJ v M& M D LTD

A Work at Height claim where the Claimant suffered signifcant orthopaedic and head injuries and where liability remains in dispute. Value in excess of £750,000

RC v DP

A claim arising from a road traffc accident where the Claimant suffered signifcant bilateral leg fractures. Value in excess of £750,000

Memberships

Personal Injury Bar Association

Qualifcations

LLB (Hons) LLM (Kings College, London)

Amputation&ProstheticsClaims

PresentedbyNickXydiasandRobertSmallwood Friday23rdFebruary2024,TheEastsideRooms,Birmingham

Amputation&ProstheticsClaims: TheCoreLegalPrinciplesandMaximisingDamages

PresentedbyNickXydias Friday23rdFebruary2024,TheEastsideRooms,Birmingham

CoreLegalPrinciples

1.RestitutioninIntegrum:

Theneedforbothpragmatismandcreativity:Thetaskofrestorationunderthenameofcompensationcallsintoplayinference,conjecture andthelike.Andthisisnecessarilyaccompaniedbythosedeficiencieswhichattachtothe conversionintomoneyofcertainelementswhichareveryreal,whichgotomakeupthe happinessandusefulnessoflife,butwhichwereneversoconvertedormeasured. Therestorationbywayofcompensationisthereforeaccomplishedtoalarge extentbytheexerciseofasoundimaginationandthepracticeofabroadaxe” (LordShawinWATSONvPOTTEtal(1914SC,HL,18)

2.BurdenofProofUponC

WhatisreasonableforC’sneedsinallthepresentandfuturecircumstances?

Querywhetherimplementingsuccessfulprostheticregimeaftertrialinpracticereverses theburdenofproof?

3.DisregardavailabilityofNHSprovision(section2(4)ofLR(PI)Act1948)

BUT:-

BurdenstillonCtoconvinceCourtCwillutilizedamagesrecoveredtofundprivately fundedprovisionasopposedtoNHSprovision.

Failuretodoso,willmeanreductionindamages:WOODRUPvNICHOL[1993]PIQ Q104

4.Thresholdofrecoverability:-Reasonableness

QisnotwhetherD’salternativeisreasonable;

QiswhetherC’sproposedregimeisreasonable;

IfbothoptionsreasonablycompensateC,C’schoiceofmoreexpensiveoptionunlikelyto beviewedasunreasonablebytheCourt;

IfDidentifiessameregime/prostheticatcheapercost,Coptingformoreexpensive regimecouldbefairlyregardedasabreachofdutytomitigate.

(SOWDENvLODGE[2004]EWCACiv1370)

5.C’suniquepersonalcircumstanceswillallowlatitudereissueof reasonableness

C’spersonalneedshavetobelookedatwithadegreeofsubjectivity

Anychallengerefuturerequirementsmustbeevidencebasedandnotspeculative

C’sprioritiesandmotivationrechoiceswereofsignificance

D’ssuggestionthatCwouldsteertowardsNHSprovisionposttrialfacesanuphill strugglewithoutclearevidence

(PINNINGTONvCROSSLEIGHCONSTRUCTION(2003)EWCACiv1684)

6.TheDefendantisnotobligedtofundaRollsRoyceregime.

WAGNERvTHOMASGRANT[2015]CSOH51:-

IfCfailstoevidencethecle arbenefitsofanintricateandcostlyregime,Dwillnotbeobligedtofundthesame -reasonablenessthresholdnotpassed.

7.CcanrecoverthecostsofanunsuccessfulprosthetictrialIF:-

Reputableprostheticsproviderrecommendstrial;

Candadvisorsactreasonablyininvestigatingcostsofprosthetic;

Nocredibleevidencesuggestingdeminimisprospectsofsuccess.

FactthatD’sexpertsdoubtedsuitabilityofprostheticNOTconclusive (CROFTSvMURTON[2009]EWHC3538(QB))

8.ASuccessfulTrialisaFootintheDoor.

Incircswherethereisasubstantivedisputeinrelationtothereasonablenessofsuggested prostheticregimes,athoroughlydocumentedprosthetictrialdemonstratingthemeritsofC’s proposedregimeisverypowerfulevidenceinfavourofretainingthestatusquo.

DVDfootageofgait,stability,stairclimbing,staminaandconfidencecanhelpwintheday

9.FocusontheCrucialCriteriathatDemonstrateC’sChoiceisthe ReasonableOne:-

5criticalcriteriarereasonablenessoflegprosthetic:1)Comfort; 2)Leasttiringoption;

3)Safestrestability&minimizingtriprisk;

4)Confidencegeneratedbyuse;and 5)Controlallowedoverprostheticlimb&abilitytoimprovise.

(MILLERvIMPERIALCOLLEGEHEALTHCARENHSTRUST[2014]EWHC3772(HHJCurran QC)):-

ThedifferenceinperformanceoftheGeniumovertheOrionisneither marginal,norsimplysubjective:itisquitecleartomethatitgivesavery perceptibledegreeofreassurancetotheClaimantinwalkingconfidentlywithit, andinpreventingherfromfalling.Itpasseseachofthefivetestsinrespectofher needswhichIhavesetoutabove.Itgivesherasignificantimprovementinthe qualityofherlife.Herenthusiasmforitwasinmyviewentirelybaseduponthe veryrealdifferencesheconsideredthatitmade,andtheobjectiveevidence confirmedthat.Ihavenohesitationinholdingthatthecostpaidforthepurchase oftheGeniumthisyearisrecoverableinfull”.

10.CoverAllReasonableEventualities:TheRiskofAmputation& ProvisionalDamages

Whatistheriskofamputation?

Isismorethanfancifulandmeasurable? Forhowlongwilltheriskcontinue?

WillamputationconstituteaseriousdeteriorationinC’sconditionforprovisionaldamages purposes?

IfC’spainlevels,mobilityetcwillbeimprovedbyamputationandtheprovisionofa prostheses,noPDs.

Amputation&ProstheticsClaims: TheCoreLegalPrinciplesandMaximisingDamages

Presentedby–NickXydias Presentersemail–nx@no5.com

Amputations&Prosthetics: AGuidetotheCaselawandMaximisingtheClaim

PresentedbyRobertSmallwood Friday23rdFebruary2024,TheEastsideRooms,Birmingham

MaximisingDamages

•BILLYMONGERaka‘BillyWhizz’

•F4accident2017

•Doubleamputee

•Raised£3MforComicReliefby completing 140miletriathlon

•Returnedtoracing

•RaceAcrossTheWorldBBC1

•CrowdFundingforrehabandprosthetics

HowtoMaximisetheClaim

Essentialandusefulrecentcasesare:-

1.SwiftvCarpenter[2018]EWHC2060(QB)–firstinstancedecisionofMrsJustice Lambert

2.RileyvSalfordRoyalNHSFoundationTrust[2022]EHWC2417(KB)DavidAllanKC sittingasaDeputyHighCourtJudge.

TheFacts

1.MrsSwift(43attrial)seriouscrushinginjuriestobothfeetandlowerlegs resultinginleftbelowkneeamputation.Effectsofamputationcompounded bylimitedfunctionofrightfoot/ankle.Valueofallaids,equipmentand prosthetics£913,299.

2.MrRiley(27attrial)seriousinjurytorightlowerleginmotorcycle accident.Negligenttreatmentofcompartmentsyndromeresultedinbelow kneeamputation.Judgeconcludedthatthe‘butfor’negligenttreatmentC wouldhavemadeagoodrecoverywithin12monthswithminimaldisability andpain.Totalaward£4.7M(valueofprosthetics£737,466)

WhatdoweLearn?

Bylookingatthesecases,particularlyRiley,wegetexcellentguidanceon:

Whatwasclaimed

Whatevidencewasadduced(ornot)

TheDefendant’sarguments

Howtocounterthem

Whatwasallowed

Whatyoushouldbecoveringinthelayevidence,withtheexpertsandintheSchedule

Thesortofdamagesbeingawardedinsimilarcases

Atemplatetolitigatethesetypeofcases

ExpertstoConsider

Rehabilitation-mobility,function,treatment,care,accommodation, prognosisinlateryears,lifeexpectancy

Orthopaedic-contralaterallimb/back/hips/shoulders,furthersurgery, functiongenerallyandhowitwillimpactoncurrentandfutureneeds

Prosthetic–toconsiderthemostsuitableuptodateandsuitable prostheticsavailable

Plastic-riskofskinbreakdown/prostheticfitcomplications/restperiods‘off feet’

Pain-if‘phantomlimb’pain

Care–especiallyinlateryearsOT/CM/Physiotherapy

OT-AidsandEquipment/Assistivetechnology/Physiotherapy

Accommodation

ExpertsUsedinSwiftandRiley

EXPERTSSWIFTRILEY

SalehBritten/KennyOrthopaedic/Hanspal

Prosthetics

SalehSooriakumaran/KulkarniRehabilitation/Hanspal Crofts/Haidar Nieveen/Sullivan [Haidarwastreating]

WilsonDunley/Utting /ScandrettCare

Wethers/Nocker/FisherAccomodationVipond

PrognosisinEachCase RILEYPROGNOSISSWIFT

Periodn/a 1

Periodn/a 2

Period3

Period4

Period5

65-75yrsincreasinguseof wheelchair.Self-caringuptolate 70s/early80s

80yrs-last2yearsoflife-need increasinghelp

Last2yearsoflife-assistance withtransfersandhelpfrom singlecarer

ToAge55/60yrs(SIGAMF)

From55/60-70yrs(SIGAME)

From70-80yrs(SIGAMD/E)

From80untillast2/3yearsof life(SIGAMB/C)

Last2-3yearsoflifeassistance withtransfersandhelpfrom singlecarer(SIGAMA)

LifeExpectancy

NochallengetoLEinSwiftorMiller.InRileyDarguedfor3yrreduction basedonimpairedmobilityandexcessiveBMI.D’sargumentwasrejected. D’srehabilitationexpertconcededinXX:

•Hewasnotaspecialistexpert,andanyproperLEassessmentwouldrequireassessment ofthe‘+’and‘–’riskfactors,notjustthe‘+’factors;

•TherewasnoreliablestudysupportingareducedLE.

•TheJudgeinRileyconcluded:‘thereisnoreliableepidemiologicalevidencethatblowkneeamputationleadstoareductioninlifeexpectancy’.

LossOfEarnings

RileymoregenerousthanSwift.Somethingstoconsider:

‘Butfor’earnings.NeedtoevidenceC’s‘butfor’earningstrajectory(weakinSwift);

Multiplicand.Inbothcasespost-accidentearningswerereduced.InSwiftlimitedto4 days/weekatpre-accidentlevelwithoutpromotions.InRileylimitedtothe25thcentile (ratherthanmedian)FTasITtechnicianuntil60whenreducetoPT3days/wk

RetirementageSwiftnormal.Riley64ratherthan68.

Discountfactor.ClaimforatleastthestandarddiscountfactorintheOgdentablesfor ‘disabled’.InSwifttheRFslightlyincreasedfromthestandard0.6to0.7.InRileyD arguedforaBlamireaward-rejected.Standarddiscountof0.5wasapplied.

Prosthetics

ItishelpfulthatCtrialsthelimbsbeingclaimed(evenifunsuccessful-see Crofts).TheCourtandexpertsneedevidencetojustifytype/numberof prosthesesclaimed.

Expertevidence-astotheadvantages/disadvantagesofeachlimbtoC

LayStatements-purposeofthelimb(s),different advantages/disadvantagesofthosetrialled,durationofuse,terrain, cosmetics,footwear.MvT(2014)asetteledcasefor24yrmale. Prostheticsawardagreedwas£1.6M(now£2.25M).Cclaimedfor14 differentlimbs.

Videoevidence-showingtheuseoftheprosthesis(asinSwiftandMiller)

Trial/records/outcomemeasures-undertakenattheprostheticclinicto evaluatechangesinperformance/functionachievedbywearingthe differentprosthetics.

SwiftandRiley

TheBestBitsfromRecentCasesandSomeObservations

1.Microprocessor(MCP)/bioniclimbsappeartobestandard(Miller,Swift andRiley).

2.ReasonableforCtohave2everydayactivitylimbs(Miller,Swiftand Riley).

3.ArgumentthatMCPlimbsoractivitylimb(landandwater)issuitablefor life(MillerandSwift)andnotlimitedto75(Riley).MCPlimbslighterin future.

4.Swiftawardedcostforseparatelimbsforwateractivity(forlife)anda sportactivity(to70).Rileyawardedcostofacombinedactivityand waterprooflimbto60.Lightweightwaterproofprosthesisallowedfrom75 –agapof15years.

5.Prosthetistshouldconsidermostuptodateequipmentandcosts(RileyEmpowerpropulsion?)

6.Rileynotallowedcontingencyforincreaseinpotentialcostsforreflect theincreasedcostofprosthetics/componentry/technological advancements.Toospeculative.PPO?Indexation?

Care,AssistanceandCaseManagement

Rileyisahelpfulstartingpointforcareconsiderationsforthefollowing reasons:

1.Itisan‘unremarkable’lowerlimbamputationcase.Swifthadbilateralissues.

2.InRiley(butnotSwift)Judgeawarded:

acontingencyforcareduringperiodswhentheCwaswheelchairreliantduetostumpcomplication anddiscomfort(5wks/yrx14hoursagency=£104,527).

acontingencyforillnessunrelatedtostumpcomplications(2wks/yrx14hrs=£41,810).

4.InRileythesumsallowedfrom75yrsareapproximatelydoublethoseinSwift 5.MoregenerousCMaward–butstillroomforimprovement.

AidsandEquipment

TheequipmentclaimsinbothSwiftandRileywererelativelymodestand uncontentious.

InRiley,Cwonboththemaindisputesattrial:

1.E-motionpowerdrivewheelchair.Reasonable(inadditiontoanormal wheelchair)uptothetimeofrequiringapoweredwheelchair(concededat75).The advantagewasthatitreduceddemandonupperlimbsandreducesfatigue.(Cost£47,000)

2.Typeofpoweredwheelchairfromage75.CclaimedforanEvoLectus wheelchaircosting£15,000,whereasDproposeda£6,000chair.C’sOTexpertwasableto explainthattheLectuswasfarmoresuitablefortheC’sweightandneeds(Cost£59,000)

Transport-RileyWinsAgain.

SomehelpfulpointsfromRileyare:

CrequiredalargeSUVvehiclewithadaptionstoage75.Adaptioncostsandboothoistto age75.

From75Crequiredawheelchairaccessiblevehicle(WAV)

Cwasallowedanewvehicleevery5years,notlimitedtosecondhand(perD)

ButfortheaccidentCwouldhavehadfamilyvehicle(£15,000)changedevery5yrs

Additionalrunningcostsofrunningalargervehicleandtheneedforanautomatic£1,500 p/a.

Totaltransportcosts£308,990.

ImportanceofexpertevidenceontransportcostsisemphasisedinSwift, withLambertJcommentingonthelackofspecialistneedsassessment dealingwiththeseadditionaltransportcosts.Otherpossibleheadsofloss, notawardedinRiley,butwereinSwiftare:Roadsideassistance;Taxis (£1,560p/a).

FutureTherapies

TheseweremainlyagreedinRiley.Importanceofgoodfactualevidenceof thebenefitsoftherapyreceivedtogetherwithexpertjustification.

Gymmembership.Butfortest.Wouldthishavebeenincurredirrespectiveofaccident?

PersonalTrainer.InRiley£450p/awasallowedtoage75.PTwouldprovidemotivation andstructuretotheClaimant,anditwasofgreatimportancetotheClaimant’shealththat hemaintainshisfitnessandmanageshisweight. Physiotherapy.Agreedfor:regularprovision;toaddressspecificissues;andfortrialling prosthesis.(Rileyaward£50,000).

SportsMassage.InSwifttherehabilitationexpertssupportedadditionalsportsmassage (tomaintainmusclecondition),inadditiontothephysiotherapy(toaddressacutesofttissue injuries).TheClaimantfoundthemassagetobeeffectiveatrelievingneckandshoulder painandhadpaidforitpost-accident.(Swiftaward£73,000)

Accommodation

Seminaronitsown.InRileyonepointtonote: TheDefendantarguedthattheClaimant:

1.Shouldgivingcreditfor50%ofthecostofthe‘butfor’property.(AgreedbyC)

2.Shouldalsogivecreditforhispartner’s50%contributiontowardsthecostofthemore expensiveproperty.

3.Failedtomitigatehislossesbynotsecuringthat50%contribution.

Held:Argumentwasrejected.Noauthorityinsupport.Issuehadnotbeen putinXX.

Note:InSwiftvCarpenter[2022]EWCACiv1295itwasnotsuggestedthat itwouldbeafailuretomitigateiftheClaimantdidnotseekacontribution fromtheirpartner.ArgumentsthatthebenefittoC’spartnerorfamily,in livingrentfreeinthenewproperty,shouldbeoffsetagainstthe accommodationclaim,wererejectedNoblevOwens[2008]EWHC359 (QB);IqbalvWhippsCrossUniversityHospitalNHSTrust[2007]LSLaw Medical97andMannavCentralManchesterUniversityHospitalNHSTrust [2015]EWHC2279(QB).

Holidays

ThecasesofSwiftandRileybothsupporttheadditionalcostsofcomfort andextralegroomfortheClaimantandthefamilysattogetheronflights. Longhaulflightswerepermittedinbusinessclass(Riley). Defendant’sargumentsthatitshouldnothavetopayfortheupgradesof partnerand/orchildrenshouldnotbeacceptedintheseandsimilarcases. TotalawardinRileywas£114,000.

Theclaimforholidaysandtravelisamatterofevidencewhichneedstobe properlycosted.Tryandavoida‘guestimate’roundedfigurewhichnormally undercompensates.

ConclusionsfromRecentCases

Theimportanceofusingtherightexperts.

Evidence,evidenceandevidence.Supportiveandjustify recommendationsclaimed.

Ifyoudon’taskyoudon’tget.MCPsandadditionallimbs.

‘Claimantmarket’.Nowaccepted:SIGAMcaremodel;carefor contingencies‘offfeet’;childcare;mobilityaidsandtransportcost; therapies;holidaycosts;accommodation.

Rileyisgood,butnotthebest.‘Light’on:waterproofandactivitylimbsfor longer.Technologicaladvances;CM.

ResistcommonDefendantarguments.ReducedLE;SmithorBlamire awards;‘midpointdisability’RF;non-MCPlimbs;100%creditfor‘butfor’ property.

Considerrecentcostincreases(RPI),futurecostincreasesandrecent equipmentdevelopments.

Presentedby–RobertSmallwood Presentersemail–ras@no5.com

Amputations&ProstheticsClaims

Presentedby–NickXydiasandRobertSmallwood Presentersemail-nx@no5.comandras@no5.com

AMPUTATION & PROSTHETICS CLAIMS : THE CORE LEGAL PRINCIPLES AND MAXIMISING DAMAGES

PRESENTED BY NICK XYDIAS & ROBERT

SMALLWOOD

23rd FEBRUARY 2024 AMPUTATION

11.am – 5.15pm

Eastside Rooms

Woodcock Street Birmingham B7 4BL

THE CORE LEGAL PRINCIPLES

Introduction

“The task of restoration under the name of compensation calls into play inference, conjecture and the like. And this is necessarily accompanied by those deficiencies which attach to the conversion into money of certain elements which are very real, which go to make up the happiness and usefulness of life, but which were never so converted or measured. The restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe” (Lord Shaw in WATSON v POTT Et al (1914 SC, HL, 18)

1. There is perhaps no other area of the personal injury/clinical negligence computation of damages process whereby the principle of Restitutio In Integrum presents a greater challenge to Claimant solicitors than in amputation claims.

2. Lawyers acting for clients, often with devastating and lifechanging injuries, are charged with the burden of recovering damages that can enable the Claimant to recover as much lost amenity as is reasonably possible and to maximise domestic, social and occupational functioning.

3. It is inevitably an imperfect process that requires the gathering of compelling expert evidence, lay evidence that effectively illustrates both the losses to the Claimant and the benefits of the proposed prosthetic regime but also an approach that embodies flexibility, creativity, and the ability to cater for future eventualities.

4. The starting point will always be the aim of restoration within the context of established legal principles.

The Burden Of Proof

5. Obviously, the burden of proof will always rest upon the Claimant to convince the Court on the balance of probabilities of what is reasonable for their specific needs in all the circumstances.

6. From a tactical perspective, if the Claimant can reach trial with an established prosthetic regime in place that presents as reasonable in terms of cost, comfort and functionality, the Defendant will often face an uphill struggle in persuading the Court that the regime in situ is unreasonable, unsuitable or a breach of the duty to mitigate.

7. Arguably, an established functioning regime based upon thorough comparison trials reverses the burden of proof in practical terms.

Availability of NHS Provision

8. Practitioners will be familiar with the provisions of section 2(4) of the Law Reform (Personal Injuries) Act 1948, which provides as follows : “ In an action for damages for personal injuries…there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under…the NHS…”.

9. This is clearly a very helpful rebuttal to the suggestion that the Claimant ought to avail herself of NHS provision which may well be inferior to privately funded aids and appliances.

10. It is vital to note that even if the Claimant does convince the Court that privately funded prosthetics are more effective and preferable to NHS supplied prosthetics, the matter does not end there. The Claimant still has to convince the Court on the balance of probabilities that the damages claimed will in fact be utilised for the claimed purpose.

11. In WOODRUP v NICHOL [1993] PIQR Q104 the Claimant claimed £1,500 per annum in respect of privately funded physiotherapy. The Defendant was not convinced that the Claimant would, in fact, utilise the finds claimed for the purposes of privately funded physiotherapy and would, if anything, avail himself of NHS physiotherapy.

12. The Court of Appeal held that on the balance of probabilities the Claimant would obtain 50% of his physiotherapy on a privately funded basis and 50% via the NHS. The Claimant was allowed 50% of the costs of privately funded physiotherapy.

13. Russell L.J confirmed that a finding of fact by the Court that the relevant Claimant will not in fact utilise the funds claimed for privately funded treatment will, in effect, sidestep the effect of section 2(4) of the Law Reform (Personal Injuries) Act 1948 in the following terms : “

‘‘… if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Services are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur. That view, in my judgment, is amply borne out by authority.’’

What is the basic legal test where the Defendant proposes an alternative regime?

14. Often the Court will be faced with a scenario in which two different prosthetic regimes are before it and the Court is required to make a ruling on the reasonableness of each. Cost, practicality, benefit, and comfort are just some of the criteria that the Court will take into account.

15. SOWDEN v LODGE [2004] EWCA Civ 1370 centred upon the question of the suitability of accommodation provision but the Court of Appeal affirmed a principle that is equally applicable in amputation claims :

“ What has to be first considered by the Court is not whether other treatment is reasonable but whether the treatment claimed is reasonable”

16. On this footing, the Court’s first stage of analysis is to assess whether the regime or provision contended for can be regarded as reasonable in demonstrable terms. Once this threshold is overcome, the onus lies upon the Defendant to convince the Court that an alternative regime is more effective, beneficial or more consistent with the Claimant’s duty to mitigate her loss.

17. If the Defendant identifies the same prosthetic or regime at a cheaper cost, the Court is likely to rule that the claim is unreasonable on account of a failure to mitigate.

18. If both options reasonably compensate the Claimant, the Claimant’s choice in opting for the more expensive option is unlikely to be regarded by the Court as unreasonable unless the differential in cost is significant.

19. In PINNINGTON v CROSSLEIGH CONSTRUCTION [2003] EWCA Civ 1684 the Claimant suffered catastrophic injuries including the loss of his dominant arm in a road traffic accident. At trial the Claimant was awarded £215K in respect of the supply and replacement of prostheses. The Claimant’s expert recommended 4 different prostheses which were theoretically all available on NHS but possibly not with high-definition silicone covers. The Claimant gave evidence to the effect that only 1 of the prosthetic arms was available locally on the NHS and he prioritized function over cosmetics.

20. The trial judge found that the Claimant would, on the balance of probabilities, slowly move to use all 4 prostheses and because not available locally would purchase them.

21. The Defendant appealed the decision on the basis of the guidance in WOODRUP and argued that, on the balance of probabilities, the Claimant would make much greater use of NHS provision, that cosmetic benefits of were of low priority and that multiplier should be significantly reduced to reflect the lack of certainty that the Claimant would avail himself of the privately funded regime contended for.

22. The Court of Appeal dismissed the appeal on a number of grounds including:-

22.1 The essential reasonableness of the provision contended for was a matter for the trial judge and the Court of Appeal would be very slow to interfere with his findings;

22.2 Section 2(4) of the LR (PI) Act 1948 was a significant consideration;

22.3 The Defendant’s case as to what choices the Claimant may make in the future was speculative and lacked a convincing evidential basis;

22.4 The Claimant’s preferences and subjective needs were very personal issues that the Court would only deem unreasonably with the compelling evidence. The Claimant’s subjective motives and priorities were of great importance; and

22.5 The Defendant had failed to adduce convincing evidence of a differential in benefits between its suggested regime and that of the Claimant which demonstrated in clear terms that the Claimant’s choices were unreasonable

23. The test of reasonableness in the context of the provision of aids, equipment and services to compensate the Claimant for their losses was restated by Lloyd Jones J in A v POWYS HEALTH BOARD [2007] EWHC 2996 in the following terms: “The requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether,

objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the Claimant is reasonable it is no answer for the defendant to point to cheaper treatment which is also reasonable…. In determining what is required to meet the Claimant's reasonable needs it is necessary to make findings as to the nature and extent of the Claimant's needs and then to consider whether what is proposed by the Claimant is reasonable having regard to those needs”

The Defendant Is not obliged to fund a Rolls Royce regime

24. In WAGNER v THOMAS GRANT [2015] CSOK 51 the Claimant suffered a below knee amputation as a consequence of a road traffic accident and was provided with NHS prosthesis at the time of trial. The Claimant’s prosthetics expert recommended the provision of two day to day prostheses, a high activity prosthesis and a water activity limb, together with lifelong private prosthetic services. Each of the prosthetics experts were called at trial, with the Defendant’s expert recommending an alternative, cheaper regime of provision.

25. The Defendant’s expert’s evidence was preferred on the basis that :-

25.1 The Claimant’s significant limitation of function was in large part due to the poorly fitting NHS prosthesis. A comfortable socket would significantly enhance the Claimant’s level of functioning;

25.2 The prosthetic suggested by the Claimant’s expert was designed for low to moderate activity, required much more maintenance and was aimed at geriatric patients, whereas the Claimant was only 24 years old and was capable of a much more active lifestyle;

25.3 The Defendant’s experts focus was to aim to liberate the Claimant rather than “adopt the life of a professional amputee”; and

25.4 The Claimant’s expert had conceded that what he was proposing was a “Rolls Royce prosthetic arrangement” which was ultimately deemed not to be “reasonably necessary”.

Can the Claimant recover the costs of an unsuccessful prosthetic trial?

26. In CROFTS v MURTON [2009] EWHC 3538 HHJ Collender QC, sitting as a Deputy High Court Judge, was faced with a claim in which a protected party, who had suffered a severe TBI and traumatic amputation of a dominant arm through the humerus, wished to recover the costs of the purchase and unsuccessful trial of a prosthetic arm amounting to almost £25,000.

27. The Defendant contested the recoverability of the costs by relying upon evidence that certain treating and medicolegal experts doubted the suitability of the trial prosthesis before the trial began and the prosthetic arm was found to give no useful function.

28. The Court upheld the claim on the basis that the Claimant and his advisors had been reasonably advised by treating medics to investigate the prosthetic arm, the provider of the arm was reputable and the Claimant at no point received any medical opinion suggesting that the arm was doomed to be unsuitable. The essential question remained whether the costs had been reasonably incurred and the Claimant was deemed to have satisfied this test.

The evidential significance of a successful prosthetic trial

29. The evidential significance of a thoroughly documented and detailed successful prosthetic trial cannot be underestimated. It establishes a status quo favourable to the Claimant and creates an evidential uphill struggle for the Defendant is seeking to displace an established prosthetic regime in favour of an invariably cheaper option.

30. In MILLER v IMPERIAL COLLEGE HEALTHCARE NHS TRUST [2014]

EWHC 3772 the Claimant was 63 years of age when he suffered an above knee amputation due to clinical negligence. He was aged 70 years at trial. He was treated initially with crude and uncomfortable NHS prostheses but eventually opted for a Genium prosthetic leg after a series of trials. The Defendant contended that a more reasonable regime ought to be based upon an alternative Orion leg, which was much cheaper.

31. At trial the Claimant produced DVD footage and statistical analysis of her using the different prostheses and illustrating in detail their differing effect upon her gait, stability, stamina, confidence and ability to manoeuvre over different types of surface etc. The Defendant’s prosthetic expert was crossexamined and found wanting in respect of his independence, interpretation of the DVD footage and the demonstrable benefits of the prosthetic that he contended for. The Defendant also relied very much on the financial disparity between the two different regimes.

32. HHJ Curran QC provided the following analysis : ‘ The test which I have to apply is this: having made findings as to the nature and extent of the Claimant's needs, I must then consider whether what is proposed by the Claimant is reasonable having regard to those needs. In my judgment the Claimant's ‘needs' in respect of an appropriate prosthesis may be summarised as follows: she requires a prosthesis which puts her as closely in the same position as she would have been if she had not suffered the amputation. It must therefore be one which:—

i) enables her to have the most natural and comfortable means of walking and normality of gait;

ii) is the least tiring of the options for her in daily use;

iii) is the safest in preventing loss of balance and in preventing falls following tripping;

iv) gives her confidence in standing and walking;

v) provides such facilities as the computerised control which allows her to step backwards when opening the door to let someone in.”.

33. As regards the Defendant’s heavy reliance upon the costs savings allowed by their regime, the Court was concerned primarily with whether the increased cost provided demonstrable benefits above and beyond the regime suggested by the Defendant :

“I have no doubt that, applying the relevant principles, the Claimant acted reasonably in choosing the Genium, and she was justified in making the purchase and in seeking to recover its cost. The difference in performance of the Genium over the Orion is neither marginal, nor simply subjective: it is quite clear to me that it gives a very perceptible degree of reassurance to the Claimant in walking confidently with it, and in preventing her from falling. It passes each of the five tests in respect of her needs which I have set out above. It gives her a significant improvement in the quality of her life. Her enthusiasm for it was in my view entirely based upon the very real difference she considered that it made, and the objective evidence confirmed that. I have no hesitation in holding that the cost paid for the purchase of the Genium this year is recoverable in full”.

What if the Claimant is at risk of amputation in the future?

34. In circumstances where there is an ongoing risk of the Claimant having to undergo an amputation and thereafter incur the costs of a prosthesis and a supplementary regime, careful analysis is required of whether the criteria that allow the recovery of provisional damages pursuant to CPR 41 and section 51 of the County Courts Act 1984.

35. Questions will arise as to the extent of the risk, when it may materialise and the nature of the deterioration in both the short and long term.

36. There are three basic questions that the Court must consider when deciding upon whether to make an award of provisional damages per Scott Baker J in WILSON v MINISTRY OF DEFENCE [1991] ICR 595.

37. The first is whether there is a chance of the relevant disease or deterioration occurring that is “measurable rather than fanciful..however slim”. NB authorities such as KOTULA v EDF ENERGY NETWORKS (EDN) PLC [2011] EWHC 1546 where it was found that a 0.1% risk of serious deterioration was sufficient to satisfy the threshold.

38. The second is whether the disease or deterioration in question is “serious”. Scott Baker J noted that this is a “question of fact depending on the circumstances of (the) case, including the effect of the deterioration upon the (Claimant). What is envisaged is “something beyond ordinary deterioration”.

39. The third issue is the Court’s ultimate discretion to make such an award which will take into account whether the risk has an associated, definable event that would trigger a return to court to reassess the Claimant’s claim, the degree of risk and consequences of the risk and the attraction of a one-off award of damages, as opposed to the possibility of achieving better justice by returning to court on a fully informed basis.

40. In CHEWINGS v WILLIAMS [2009] EWCA Civ 2490 (QB) the Claimant suffered serious injuries to his right leg, with a real possibility of the Claimant’s pain progressing to the point where he would require an ankle fusion and a 2% risk thereafter of the Claimant requiring an amputation in the event of a post-fusion infection developing.

41. The Claimant contended for provisional damages whereas the Defendant argued that the qualifying criteria for a provisional award were not met.

42. Slade J made an award of provisional damages on the basis that the Claimant did not have to prove on the balance of probabilities that he would have fusion surgery but only that on the balance of probability there was a real chance at

some time in future of a serious deterioration. There was a real and not fanciful chance that the Claimant’s pain would progress to the point where he would opt for fusion surgery and if he did, the risk of amputation was sufficient to justify an award of provisional damages. The award was ultimately provisional only for 3 years in light of the fact that 5 years had elapsed since the index accident and the risks of a serious deterioration were gradually diminishing.

43. The authority of BUTLER v MINISTRY OF JUSTICE [2015] EWHC 3384 emphasises the need to consider in detail whether in fact a surgical event such as an amputation does constitute a serious deterioration or whether it may improve the Claimant’s level of symptoms and function.

44. Here the Claimant suffered foot fractures in the index accident and fusion surgery had failed to unite the fractures and had left the Claimant with a very painful foot and a significant loss of function. The Claimant developed CRPS and neuropathic foot pain. The Claimant was considering an elective amputation but had not yet committed to it.

45. The medical experts agreed as follows :-

45.1 There was a 25% chance of an amputation, leading to a 70% chance of an improvement in the Claimant’s symptoms and the Claimant had potential to become a highly active prosthetic limb user;

45.2 There was a 30% chance of a post-amputation recurrence of chronic pain, rendering the Claimant unable to use a prosthesis and wheelchair bound; and

45.3 The Claimant’s overall risk of deterioration was 25% chance of amputation x 30% risk of post amputation deterioration by reason of CRPS, phantom limb pain etc = 7.5%.

46. The Defendant opposed an award of provisional damages on the basis that the Claimant’s condition had plateaued, he had yet to opt for an amputation, an amputation may well lead to an improvement in the Claimant’s condition and it was inappropriate to award provisional damages where the deterioration would lead to no overall change in the Claimant’s condition and at worst a slight deterioration.

47. Ultimately the Court ruled that if the Claimant did undergo an amputation and if he did deteriorate it would constitute a deterioration for the purposes of CPR 41 but that the risk of amputation per se was not a serious deterioration if it was followed by a 70% chance of an improvement. The Claimant was awarded provisional damages on the former basis but a cut-off point of the Claimant’s 60th birthday was imposed by which time he was required to make a definitive decision re amputation.

USING THE RECENT CASES TO

MAXIMISE DAMAGES

INTRODUCTION

1. Against the historic principles and caselaw identified, we will now look at how the most recent cases have adopted those principles, been presented at Court and what has been awarded.

2. Recent cases, both of which involved lower limb amputations, are: -

1. Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert (at first instance before the appeal on accommodation issue);

2. Riley v Salford Royal NHS Foundation Trust [2022] EHWC 2417 (KB) David Allan KC sitting as a Deputy High Court Judge.

3. By looking at these cases, in particular Riley, we get excellent guidance on:

• What was claimed

• The Defendant’s arguments

• How to counter them

• What evidence was adduced

• What was allowed

• A checklist of what you should be covering in the lay evidence, considering with your experts and claiming for in the Schedule

THE FACTS OF THE CASES

4. Mrs Swift (43 at trial) sustained serious crushing injuries to both feet lower legs resulting in a left below-knee (transtibial) amputation. The effects of the amputation were compounded injuries to and a limited function of right foot/ankle. Value: £4M. It is unsafe to compare figures with Riley as it was a -0.75 discount rate case, the early care included significant childcare costs and the value of prosthetics claim was not broken down in the judgment (although the total aids and equipment award was approx. £978,000.)

5. Mr Riley (27 at trial) serious injury to right lower leg in motorcycle accident. Negligent treatment of compartment syndrome which resulted in right below-knee amputation. Judge concluded that the ‘but for’ negligent treatment C would have made a good recovery within 12 months with minimal disability and pain. Total award £4.7M (value of prosthetics £737,466)

EXPERTS

6. The importance of having experienced experts cannot be underestimated. The identity and early instruction of experts should be one of the first things to consider when an amputation case lands on your desk- not just medico-legal but treating experts (especially the prosthetics). When primary liability is not likely to be in issue get the experts lined up early.

7. Expert disciplines to consider:

1. Rehabilitation- to provide an overview of mobility, function, treatment, care, accommodation, prognosis in later years, life expectancy and to consider/support (hopefully) the prosthetic treatment/expert.

2. Orthopaedic- to consider the contralateral limb/back/hips/shoulders, further surgery, function generally, the ability to work and how it will impact on current and future needs. There is an overlap with rehabilitation experts.

3. Prosthetic – to consider the most up to date and suitable prosthetics available. It is important to ensure that the treating prosthetist is a specialist in your client’s type of amputation and fully up to speed with the latest technology e.g. Osseo-Integration, TMR (Targeted Muscle Reinnervation) –upper limb amputees or in cases of phantom pain.

4. Plastic- if there is a risk of skin breakdown/complex scarring/prosthetic fit complications. Importance of rest periods ‘off feet’.

5. Pain – if there is significant ‘phantom limb’ pain.

6. Care – especially in later years when mobility reduces and the need for transfers/live in care is necessary/period when the Claimant is ill or cannot use the prosthesis. OT/CM/Physiotherapy.

7. Aids and Equipment/Assistive technology/Transport.

8. Accommodation.

8. In the most recent cases the following experts were used: EXPERTS SWIFT RILEY

Orthopaedic

Rehabilitation

Saleh/Hanspal Britten/ Kenny

Saleh / Hanspal Sooriakumaran / Kulkarni

Prosthetics Nieveen / Sullivan [Haidar was the treating prosthetist] Crofts / Haidar

Care Wilson / Scandrett Dunley / Utting

Accommodation Wethers / Vipond Nocker / Fisher

THE PROGNOSIS

9. In Riley the rehabilitation experts looked at the Claimant’s prognosis by reference to SIGAM (Special Interest Group in Amputee Medicine) grades. This provided a helpful framework for the care and prosthetic experts. In Swift there was no

explicit reference to the grades although the Court did break down the future care into similar periods.

10. The following future orthopaedic complications were considered:

• Swift: back pain and higher risk of degenerative change in lower limbs

• Riley: (per Britten who was found to be a very impressive expert)

(i) 5-10% risk of left hip replacement by age 55-60; a need for revision by 70/75; the need for a second revision by 82 to 87;

(ii) 5-10% risk of left knee replacement by age 55-60 with similar risks of revision and second revision

11. The following periods were set out:

PROGNOSIS SWIFT RILEY

Period 1 n/a

Period 2 n/a

Period 3 65-75 increasing use of wheelchair, initially outdoors and then indoors. Self-caring up to late 70s/early 80s

Period 4 80- last 2 years of life- need increasing help

Period 5 Last 2 years of life- assistance with transfers, need for a hoist and help from single carer

LIFE EXPECTANCY

To 55/60 SIGAM F (normal or near normal)

From 55/60 -70 SIGAM E (walks more than 50m. No aids except in adverse terrain or weather)

From 70-80- SIGAM D/E (D = walks outdoors on level ground only, in good weather, more than 50m with/without aids)

From 80 until last 2/3 years of life -SIGAM B/C (B= wear prosthesis only: for transfer, to assist nursing, walking with physical aid of another or during therapy/ C= Walks up to 50m on even ground with or without walking aids)

Last 2-3 years of life assistance with transfers and help from single carer (SIGAM A- those who have abandoned the use of artificial limb or use only non-functioning prostheses)

12. There was no challenge to LE in Swift. However in Riley the Defendant’s rehabilitation expert, contended at trial for a 3-year reduction (as compared to reduction of 4-6 years in his original report and then 4 years in the JS). This was based on impaired mobility and excessive BMI.

13. D’s argument was rejected by the Judge when the D’s rehabilitation expert conceded in XX:

1. He was not a specialist expert, and any proper LE assessment would require assessment of the + and – risk factors, not just the + factors;

2. There was no reliable study supporting a reduced LE for below knee amputations. (Note: some experts refer to the article ‘Why traumatic leg amputees are at an increased risk for cardiovascular diseases’ [Naschitz and Lenger], QJ Med 200; 101:251-259.)

14. The Judge in Riley concluded:

‘there is no reliable epidemiological evidence that blow-knee amputation leads to a reduction in life expectancy’.

15. Points for the Claimant to consider:

• There is no persuasive literature that an amputation, per se, results in a reduced life expectancy.

• If a study does seem to support a reduction, then it is probably premised on the cohort also suffering unrelated comorbidity or additional risks (e.g. smoking, diabetes, obesity, cardiovascular disease) rather than because of the amputation.

• Any argument by D about a reduced LE, because of obesity and associated risks, strengthens C’s arguments to maximise independent mobility and fitness to avoid those risks.

• The matter should be, primarily, within the remit of the rehabilitation experts rather than bespoke LE experts/statisticians. The Defendant’s rehabilitation expert in both Miller and Swift (Hanspal) did not dispute a normal LE. (Note: neither did Haidar, instructed by D in a recent above-knee (transfemoral) amputation).

FUTURE LOSS OF EARNINGS

16. Each case turns on its own facts. Generally Riley provides a more generous assessment than Swift, but some things to consider:

1. ‘But for’ earnings. Make sure you fully evidence C’s ‘but for’ earnings trajectory. This was somewhat lacking in Swift;

2. Multiplicand. In both cases the post-accident earnings multiplicands were reduced.

• In Swift the expected post-accident earnings were reduced to 4 days/week from 5 days, at pre-accident earnings level without ‘but for’ promotions.

• In Riley his expected earnings were at the 25th centile full-time IT technician rather than at the median level until age 60 when he would reduce to PT 3 days/wk. (check). The return to FT was probably influenced by the sedentary nature of the work.

3. Retirement age Swift normal. Riley 64 rather than 68 (as per the Claimant’s rehabilitation consultant) because of complications with osteoarthritis, the state of the stump, incidence of complications and periods when he couldn’t wear the prosthesis.

4. Discount factor You might expect that it would be an obvious case for at least the standard discount factor in the Ogden tables for ‘disabled’. This should be your starting point with a fall-back position of a ‘standard’ discount. No further concession should be made without good reason.

• In Swift C argued that the discount factor should be reduced from the standard disability discount as she was more than ‘averagely disabled’, whereas D argued that there should be no difference between the uninjured and injured discount factors or, in the alternative, that it should be increased as the disability had already been considered in the reduced multiplicand – the double discounting argument (see Clarke v Maltby). The result was a compromise with the RF slightly increased from the standard 0.6 to 0.7. This has been subject to some analysis in ‘Reduction factor adjustment in Swift v Carpenter, J.P.I.L 2018, 4, 279-283’

• In Riley, as there was no established career D argued for a Blamire award. This was rejected and the standard discount of 0.5 was applied.

PROSTHETICS

17. It is extremely useful for the Claimant to trial the limbs being claimed (and those rejected). The Defendant in Swift criticised the Claimant for not trying the prosthesis recommended by D’s expert. Although the Judge agreed that it was ‘unsatisfactory’ she did not accept the argument that this amounted to the Claimant failing to prove her claim for the more expensive MCP Meridium.

18. Even when the trial is unlikely to be successful, according to the experts, C is probably going to get the costs of that trial. It is reasonable to attempt to reduce the effects of his disability even though the chances of success are slim (see Crofts v Murton covered by NX).

19. It is also important that the Court has evidence before it to justify the type and number of prostheses claimed. This includes:

• Expert evidence - as to the advantages of a particular prosthesis over another. E.g. better balance, stability, confidence, reduce socket pressures.

• Lay Statements - setting out: the purpose(s) of the limb(s); the different advantages/disadvantages of those trialled; additional limbs sought for different activities or sports, duration of use, terrain, cosmetics and footwear (e.g. adjustable heel in Swift).

In Riley the Judge was persuaded by the fact the Claimant had trialled the Kinnex 2 foot which he liked, and which was reported that it improved the Claimant’s posture and stability. This was preferred to the Defendant’s expert. Note: M v T (2014) An extreme example of a claim for additional specialist limbs. (Settlement for 24yr male) the final agreed figure for prosthetics was £1.6M (approximately £2.25M now). C claimed for 14 different limbs including for skiing (on and off-piste), snowboarding (on and off-piste), mountain biking, rollerblading, swimming and running.

• Video evidence - showing the use of the prosthesis (as in Swift and Miller)

• Trial /records/ outcome measures - undertaken at the prosthetic clinic to objectively evaluate changes in performance/function achieved by wearing different prosthetics. This should be of as many limbs as possible.

20. The following prosthetics were awarded in Swift and Riley

PROSTHETIC SWIFT

Primary Daily Activity Meridium (microprocessor)

6-year cycle for life

Second Daily Activity Elation (cosmetic with adjustable heel)

6-year cycle for life

Lightweight (waterproof)

Water activity Agreed 5-year cycle for life (-1 yr.)

Sport activity Running blade 5-year cycle to age 70

Other activity n/a

RILEY

Kinnex 2 (microprocessor)

6-year cycle to age 75

Echelon VT (hydraulic)

6-year cycle to age 75

From age 75

6-year cycle

Cheetah Explore

6-year cycle to age 60

As above (Cheetah Explore)

Pro-Carve (ski/snowboarding foot) one off (probably as he had not tried snowboarding and given age of children would not be immediate)

21. In another example, in Joldes v CFBD Ltd (2020), a case which settled for £4.45M in 2020, prior to Riley but after Swift, the Claimant (aged 32) suffered a trans-femoral amputation of the right leg. Same Claimant counsel in Joldes as in Riley. The cost of prosthetics was valued at approximately £1.45M. This included the following prosthetic prescription to older age, when he was expected to become less mobile:

• A Genium MPK micro-processor knee with cosmesis for daily use

• A waterproof Genium X3 micro-processor knee for swimming, outdoor activities and a s a spare during periods of repair and servicing

• A running blade with mechanical knee

• Challenger foot with multi-directional movement for football and gym

• Provision for skiing: either a prosthesis or outriggers or a sit ski.

22. Conflating the best aspects from the recent cases here are some things to consider with your cases:

1. Microprocessor /bionic limbs now appear to be standard for Claimant’s under 70 at the time of trial (allowed in Miller, Swift and Riley).

2. It is likely to be reasonable for the Claimant to have two everyday limbs offering different function/cosmetic (Miller, Swift and Riley). Whether both are MCP will depend on the activities it is required for and the mobility of the Claimant.

3. There are increasing arguments that a microprocessor limb or alternative daily activity limb is suitable for life (Swift) and not limited to just 75 (Riley). In Miller the Court adopted a 100% chance of a Genium MCP knee at 76yrs, at replacement age 82 there was an 80% chance of the MCP (rather than lighter limb with lockable knee, thereafter (88yrs) a 20% chance of MCP. As stated in Swift it was “overwhelmingly likely that the Claimant will in her later life elect to stay with the prosthesis [microprocessor Meridium] with which, by then she will have long been familiar”. With future developments it is probable that microprocessor limbs will become lighter, strengthening the argument that they are more suitable for longer. In Riley the Claimant’s prosthetic expert conceded that the microprocessor was only suitable until age 75. You should consider carefully with your rehab and prosthetic experts whether it is appropriate to make that concession.

4. Ensure that the prosthetic expert has considered the most up to date or beneficial equipment/ O-I/ TMR/neuro-prosthetics etc. In relation to Riley there is commentary that there is no mention of whether the more expensive Ottobock Empower limb (with powered propulsion) was trialled. This prosthesis is sometimes the microprocessor limb of choice for younger, active claimants with below knee amputations.

5. Mrs Swift recovered separate limbs for water activity (for life) and a sport activity (to 70). This is reasonably common (see Miller). Mr Riley only recovered a combined high activity and waterproof limb (Cheetah explore), and this was limited to 60. It is not clear from the Riley judgment why the

water limb was so limited (although it is noted that a lightweight waterproof prosthesis was provided from age 75 – a gap of 15 years).

6. The courts have not yet allowed an increase in potential costs (above that calculated from the discount rate) or a contingency award to reflect the increased cost of prosthetics/ componentry/technological advancements (OI/TMR/neuro-prosthetics). Too speculative in Riley. In those circumstances make sure you have the most up to date costings at JSM/trial. Prices can go up very significantly over 12 months from the date of the report.

7. Are prosthetic costs suitable for PPOs rather than a lump sum? – No appropriate indexation rate/variable costs needs/ too many contingencies. Possibly something to consider with dual discount rates.

CARE/ASSISTANCE/CASE MANAGEMENT

23. I recommend using Riley as the more helpful starting point for care considerations for the following reasons:

1. It is an ‘unremarkable’ lower limb amputation case, whereas in Swift there were injuries to both lower limbs increasing care requirements;

2. In Swift the Judge included ‘mothers help’ and ‘childcare’ in the annual sums, depending on childcare responsibilities. Individual childcare responsibilities are particularly fact sensitive to the family circumstances and whether the Claimant is male or female;

3. In Swift the Judge omitted to allow a contingency for care during periods when the Claimant was ‘off her legs’ and wheelchair reliant due to stump complication and discomfort. In Riley this equated to 5 wks per year x 14 hours of commercial care (Total: £104,527).

4. In Swift the Judge also omitted to allow a contingency for episodes of illness unrelated to stump complications. In Riley this was 2wks/year x 14hrs (£41,810).

5. The sums allowed in the latter years (75 onwards) are far more generous in Riley

6. In Swift only a very modest contingency was allowed for CM, whereas in Riley a very modest annual allowance was made when care needs started to increase (from 70) which increased significantly in the last 2-3 years. The Judge preferred the concessions made by the rehabilitation experts in their written evidence, rather than the opinion of the Claimant’s care expert whose evidence was, until then, more impressive than the Defendant’s care expert. Note: I think the CM award is ‘light’. With further surgeries, numerous prosthetics and equipment needs, increasing care needs and particularly if the Claimant is of limited intelligence, then the CM provision could be increased.

24. The breakdown of care/case management in Riley was as follows:

To Age 70

Age 70-75

Age 75-80

Age 80 to last 2-3 years

3 hrs domestic assistance £2,026 p/a

3 hrs domestic assistance

7 hrs commercial care

3 hrs domestic 14 hrs commercial care

3 hrs domestic assistance 28 hrs commercial care p.w (conceded)

Last 2-3 years Single live in agency carer

Contingency for wheelchair reliance 14 hrs x 5wks

£10,660 p/a

£19,294 p/a

£36,562 p/a

£362,199 lump sum (equates to £114,983.81 using the MP adopted by the Judge for CM over the same period)

£1,643.50 p/a

Contingency for illness 14hrs x 2 wks £657.40 p/a

Childcare additional hours (2 children allowed for)

Case Management

10.50hrs/wk to age 3 2hrs/wk to age 12

3 hours p/a in first year and from age 70

Last 2-3 years

AIDS AND EQUIPMENT

£5,256 p/a

£1,351 p/a

£855 p/a

£3,240 p/a

25. The equipment claims in both Swift and Riley were relatively modest and uncontentious.

26. In Riley the two main disputes, which were both resolved in favour of the Claimant, were;

• Whether an E-motion power drive wheelchair was reasonable in addition to a normal wheelchair up to the time of a powered wheelchair (conceded at 75). The advantage is that it reduces the demand on upper limbs and reduces fatigue. (Cost £47,000).

• The type of powered wheelchair required from age 75. The Claimant contended for an Evo Lectus wheelchair costing £15,000 whereas the Defendant proposed a £6,000 chair. C’s OT expert was able to explain that the Lectus was far more suitable for the C’s weight and needs (Total £59,000).

TRANSPORT

27. Helpful points from Riley are:

• C reasonably required a large SUV vehicle (Hyundai Tuscon- £32,860 was reasonable rather than the current Audi Q7) with adaptions to age 75.

• From 75, when C becomes more reliant on a powered wheelchair outside the home, he will require a wheelchair accessible vehicle (WAV) such as a VW Caddy Upfront (£46,000).

• C was allowed a new vehicle every 5 years, rather than a second hand one as argued by D, given the requirement for a reliable vehicle and his dependence on it.

• But for the accident C would have owned a basic family vehicle costing £15,000 which he would have changed every 5 years.

• Additional running costs of running a larger vehicle and the need for an automatic £1,500 p/a.

• Adaption costs and boot hoist to age 75.

• Total transport costs £308,990.

28. The importance of expert evidence on these costs is emphasised by the fact in Swift Lambert J commented on the lack of a specialist needs assessment dealing with these additional costs.

29. Other possible heads of loss, not awarded in Riley, but were in Swift are:

• Roadside assistance

• Taxis (£1,560 p/a)

FUTURE THERAPIES

30. These were mainly agreed in Riley. However the following should be considered in your claims and demonstrates the importance of good factual evidence of the benefits of therapy received.

• Gym membership. Would this have been incurred irrespective of accident?

• Personal Trainer. In Riley £450 p/a was allowed to age 75. PT would provide motivation and structure to the Claimant, and it was of great importance to the Claimant’s health that he maintains his fitness and manages his weight.

• Physiotherapy. Agreed for: regular provision; to address specific issues; and for trialling prosthesis. (Riley award £50,000).

• Sports Massage. In Swift the rehabilitation experts supported additional sports massage (to maintain muscle condition), in addition to the physiotherapy (to address acute soft tissue injuries). The Claimant found the massage to be effective at relieving neck and shoulder pain and had paid for it post-accident. (Swift award £73,000)

ACCOMMODATION

31. The Defendant argued that the Claimant:

• Should giving credit for 50% of the cost of the ‘but for’ property. (Agreed by C)

• Should also give credit for his partner’s 50% contribution towards the cost of the more expensive property.

• The failure to obtain that contribution amounted a failure to mitigate by C.

32. The argument was rejected. Not only was no authority in support advanced by the Defendant but the issue had not been put in XX.

33. In Swift v Carpenter [2022] EWCA Civ 1295 it was not suggested that it would be a failure to mitigate if the Claimant did not seek a contribution from their partner.

34. Although not addressed in Riley, arguments that the benefit to C’s partner or family in living rent free in the new property should be offset against the accommodation claim, have been rejected in numerous cases, including Noble v Owens [2008] EWHC 359 (QB); Iqbal v Whipps Cross University Hospital NHS Trust [2007] LS Law Medical 97 and Manna v Central Manchester University Hospital NHS Trust [2015] EWHC 2279 (QB).

HOLIDAYS

35. The cases of Swift and Riley both support the additional costs of comfort and legroom for the Claimant and the family sat together on flights. Defendant arguments that it should not have to pay for upgrades the partner or children should not be accepted.

36. The extent of holidays and travel is a matter of evidence and needs to be properly costed, otherwise a guestimate rounded figure will be provided which normally undercompensates.

37. In Riley a total award of approximately £114,000 was allowed broken down as follows:

• £1500 p/for additional cost of flights when children under 18

• £1000 p/a thereafter

• £90 p/a insurance

• £400 p/a additional cost of accommodation, taxis and travel in the resort

• £500 p/a additional costs after C reaches 70.

CONCLUSIONS

38. I draw the following general conclusions from the recent cases, which can be applied to most high value cases:

(i) The importance of using the right experts for your case. Get them on board early.

(ii) Evidence, evidence and evidence. The importance of detailed factual evidence to support each head of loss. Ensuring the expert evidence and lay evidence support each other which enables the expert to justify their recommendations.

(iii) Some things to remember. Career progression but for the accident; the advantages of certain limbs; holiday costs; and the benefit of certain therapies.

(iv) If you don’t ask you don’t get. Additional limbs for specific activities are reasonable if you can support it with evidence.

(v) There has been a Claimant biased shift as to what is now accepted: SIGAM care model – especially from 75 onwards; care for contingencies ‘off feet’; childcare; bespoke mobility aids in later years; transport costs and WAV vehicle; therapies; holiday costs for the Claimant and the family; accommodation.

(vi) Although Riley is a very helpful guide to maximising the claim, it is still ‘light’ on certain heads of damages: activity limbs to beyond 75; waterproof activity limb beyond 60; CM.

(vii) Resist the common Defendant’s arguments. Reduced LE; Smith or Blamire awards; ‘midpoint disability’ reduction factors; non-MCP limbs; giving 100% credit for ‘but for’ property.

(viii) Consider future cost increases and recent developments.

AMPUTATION & PROSTHETICS CLAIMS : THE CORE LEGAL PRINCIPLES AND MAXIMISING DAMAGES

PRESENTED BY NICK XYDIAS & ROBERT

SMALLWOOD

23rd FEBRUARY 2024

AMPUTATION SEMINAR

11.am – 5.15pm

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GeorgiaHickey

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MorganSmith

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