Richard Dee v Welsh Ambulance Services NHS Trust & Ors

This is an application for an interim payment made on behalf of the claimant who suffered a catastrophic spinal cord injury and very severe pressure sores in the aftermath of what I will term a “freak accident” in 2019 when he fell from a non-motorised scooter. The circumstances are very sad; Mr. Dee was said to be a very fit and active man who had only retired two months before the index event which occurred at the end of a day’s regatta sailing with his club in Pembrokeshire. Mr. Dee was an avid sailor, and there appears to have been nothing unusual about the day's events prior to around 22.50 when, following the regatta presentation and dinner, he had walked to a local pub with his friends for a round of drinks. For reasons that are unclear, he then decided to “have a go” on one of the adult non-motorised scooters belonging to a friend. Apparently, these are a customary means of transport around many regatta sites, and he had not used one for many years. He had not progressed very far when the front wheel of the scooter became caught on a small ledge by a door, causing him to fall off and sustain a broken nose on impact. Although not diagnosed at the time, it is undisputed that he also suffered a traumatic contusion of the cervical cord at C6 extending down to the disc level. He was unable to get up from the ground and has been unable to walk since. He is now a tetraplegic, wheelchair dependent and requires 24-hour professional care.

The claim is brought in negligence against three defendants, the first being the ambulance service called to the scene of the accident, the second defendant being the receiving general hospital where the claimant was admitted through the accident and emergency department and the third being the specialist hospital that reviewed the claimant’s CT and MRI images and provided advice on treatment to the second defendant. Apart from a few limited breaches of duty being admitted by the first defendant the claim is fully disputed.

Although the accident occurred over four years ago, proceedings are still at a relatively early stage and expert evidence had not been exchanged at the time of the hearing of the application. The claimant's legal team had provided voluntary disclosure of a number of their export reports, but the defendants just relied for this application on 2 brief letters prepared by their orthopaedic spinal and neurosurgical experts a matter of days before the hearing.

The claim was advanced at this juncture because numerous voluntary requests for an interim payment had been unanswered, and the claimant is in dire need of monies to rectify what is described as his “wholly unsatisfactory living conditions”. The defendants considered the application to be premature ahead of full exchange of expert evidence in a disputed claim. Currently, the claimant remains at the marital home he has shared with his wife for over 40 years but due to his injuries is confined to the ground floor where he uses the living/dining room as his bedroom, which is the only reception room in the house. There have been no adaptations to enable him to access other rooms where the door frames are too narrow for his wheelchair, and he lacks privacy or access to any toileting or bathing facilities other than use of the very temporary equipment that has been installed in his bedroom. There is also now a lack of privacy and separation between the carers and the claimant and his wife. The claimant has no emergency access from the property that he can always access.

The preliminary Schedule of Loss prepared by the claimant's legal team totals in excess of £7 million. There is not a clear demarcation between all the losses claimed in respect of the spinal cord injury (there being some difficulty in separating “natural” consequences of the fall in terms of damage to the spinal cord and any deterioration said to be due to negligent treatment) and also in respect of losses said to be attributable to the claimant’s very severe pressure sore. During the course of the hearing, there was clarification that the losses ; claimed are based on the premise that the claimant would always have suffered some permanent neurological deficit in the lower limbs following the accident, even absent any alleged clinical negligence, but that he would have had full use of his upper body and remained independent in bladder and bowel function.

CPR 25.6-9 sets out the procedural requirements to be met concerning interim payments which are an exception to the general principle that a defendant has a right not to be held liable to pay damages until liability has been established by a final judgment. The original purpose of such payments was to mitigate hardship in injury cases caused by long delays prior to the final judgment being obtained, which is precisely the scenario in this case. Where liability has not been admitted, and no judgment has been entered, the court must be satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money from a defendant from whom he is seeking an order ( at 25.7 (c) ) or from at least one defendant, where the court cannot decide which of several defendants against whom the sum should be ordered (at 25.7 (e)). All of the defendants in this case are public bodies, so there is no need to look further at their ability to pay any amount ordered to satisfy other aspects of the procedural tests.

Further guidance on the correct application of other aspects of the procedural tests is set out in the White Book at Volume 2, section 15, paragraphs 99 to 128. The guidance confirms that on the hearing of an application there should be no mini-trial as the procedure is unsuited to cases where factual issues are complicated or difficult points of law arise. Paragraph 15-101 clearly sets out that if a defendant does not put forward any evidence regarding contributory negligence or causation issues a judge is entitled to conclude that an interim payment should be awarded on the basis of the evidence that has been presented.

The court has a very wide discretion and one of the cases in the authorities bundle, Test Claimants in F11Group Litigation v Revenue & Customs Commissioners [2012] EWCA Civ 57), is most helpful. Aikens LJ held at [36], “… It seems to me that the first thing the judge… has to do is put himself in the hypothetical position of being the trial judge and then pose the question: would I be satisfied (to the civil standard) on the material before me that this claimant would obtain judgment for a substantial amount of money from this defendant?”. Aikens LJ was keen to point out in that judgment that it is important not to confuse the 2 concepts of burden and standard of proof. The claimant has to satisfy the burden of proof and must also satisfy the standard on the balance of probabilities but to a high degree. He continued at [38], “The only difference between the exercise on the application for an interim payment and the actual trial is that the judge considering the application is looking at what would happen if there were to be a trial on the material he has before him, whereas a trial judge will have heard all the evidence that has been led at the trial, then will have decided what facts have been proved and so whether the claimant has, in fact, succeeded”.

In summary form, the claimant’s allegations are shown below, with the response of the defendants following (they have served a combined Defence). The disclosed expert opinion for either party is set out adjacent to the pleaded issues and is underlined for ease of identification.

The claims against this defendant are that they:

Counsel for the claimant identified the threshold issue on eligibility for an interim payment on this application as set out below:

“Is there compelling evidence for the claimant that the defendants breached and caused (to a high degree of probability)

a)

the lower limb injury to become permanent/ not to improve.

b)

deterioration of the injury into the arms.

c)

pressure sores.”

It is also clear that I need to determine whether one specific defendant is liable to make an interim payment (CPR 25.7 (1) (c) or whether I am satisfied that the claimant would obtain a judgment for a substantial amount of money against at least one defendant, but I am unable to determine which one (CPR 25.7(1)(e)).

As the dispute involves factual disputes about the claimant’s immediate injury and treatment, upon which I must reach a view, I consider it necessary to set out the chronology in some detail, extracted from the material presented to me, which included pleadings, witness statements, and clinical records. The witnesses of fact were:

In the following table numbers in square brackets denote paragraph numbers in the source document.

The claimant relied upon the fact that the case law, to which I have referred earlier, confirms I should make my determination on the material presently before me. To that end, it was submitted that there is robust expert evidence adduced from multiple clinicians relied upon by the claimant confirming both breach of duty and causation of Mr. Dee's current catastrophic injuries. I will not repeat that evidence which has already been set out above. It was clarified that the claimant would have expected to suffer some long-lasting deficit in his lower limbs, but it was the extent of the deficit and the deterioration into other parts of his body that was the subject of the claim.

Counsel also referred me to the hospital's own protocol for handling spinal injury which had not been followed in Mr. Dee's treatment and the fact that the defendants’ lay witnesses have not justified their position in not adhering to such guidance, simply stating they were unaware of it. I was reminded that the case is brought on both the usual “but for” causation test and also pleaded in the alternative on the basis of material contribution.

I was also urged to carefully consider the factual evidence which it was said clearly indicates a gradual deterioration in Mr. Dee consistent with the alleged failures by clinicians. I was referred specifically to the three lay witness statements, the liability statement of Mr. Dee, his medical records and the statement of the paramedic, JC, which was prepared as part of an internal investigation. I have already summarised the relevant content of those documents at paragraph 14 above.

Acknowledging the dispute in the claimant’s spinal injuries rehabilitation consultant’s (Mr. Kumar’s) classification of Mr. Dee's precise injury, which a trial judge might well examine further, it was submitted that I needed to look at the totality of the opinion advanced by the spinal injuries rehabilitation consultant and other experts and the trial judge would not ignore what Mr. Kumar had to say about deterioration in the upper limbs. It was drawn to my attention that the defendants' letters from 2 experts only considered damage in the lower limbs and do not address the apparent deterioration into the upper arms, nor the pressure sore, although the defendant has indicated that there may be concessions in regard of the latter injury. The claimant resisted the suggestion that there should be an adjournment of the application based upon the tissue viability issue until after the exchange of expert evidence, as a disproportionate approach.

In relation to quantum, it was submitted that the Schedule of Loss gives full credit for Mr. Dee’s clinical position following the fall and absent any clinical negligence.

The defendants’ approach to the application was to highlight why they believed the claimant could not demonstrate, to the required standard, that the evidence before me was adequate for my determination. There were 2 main aspects to this argument.

First, Counsel submitted that the difference in opinion between the parties' experts was “unresolvable” on the basis of the written material concerning the “but for” expected improvement in spinal outcome. The defendants’ chief focus was the expert causation opinion of the claimant’s spinal surgeon, Mr. Kumar. It was said that it is wrong to seek to apply the generalised thesis about spinal cord injury improvement adopted by the claimant's expert, when the defendants' spinal surgery expert’s view was that the specific anterior cord syndrome from which he says Mr. Dee suffers is less common and very poor prognostically compared to the majority of spinal cord injuries (being those with central cord syndrome). It was argued that the medical literature relied upon by Mr. Kumar was therefore not sufficiently specific or focussed on the facts, in this case, to be helpful or instructive regarding rehabilitation and scope for improvement following initial injury. It was further submitted, that if Mr. Kumar had relied on literature that dissected out the different syndromes, and provided data about them, the defendants would have been able to reply specifically upon it.

Furthermore, I was taken to the letter from the defendant’s expert neurosurgeon where he disagreed with Mr. Kumar’s classification of initial injury as category C status rather than category B, which the defendant's expert maintained had been the injury level throughout. The defendant’s expert spinal surgeon concurred, on the balance of probabilities, that there was no motor function in the lower limbs from the point of impact, hence a category C status was unsound, which is the claimant’s pleaded case.

It was suggested the very starting point of the claimant's causation argument is flawed, in part due to the claimant having focused inappropriately on clinical examinations at 10:00 and 12:41 and not having taken proper account of the contradictory and “cogent and compelling data at the scene of the fall: at 07:07 and at 09:20”.

Dealing with each of the examinations in turn:

Another illustration of what was said to be the flawed approach of Mr. Kumar was his description, at page 800 in the bundle, of the initial insult to the spinal cord following the accident as both mild and relatively stable, whereas the defendants' spinal surgeon, examining the MRI scan, commented upon it as a “catastrophic spinal cord injury”.

As the submissions had centred on the lower limb injury I asked counsel about the defendants’ experts’ position on upper limb loss, as I could not find reference to it in the 2 letters relied upon. It was submitted that it was not feasible, or a fair expectation, for the defendants to respond to every single point at this stage when expert evidence would be exchanged shortly. Furthermore, it was submitted that the claimant's causation expert, Mr. Kumar, had not demonstrated in any explicit fashion how any alleged progression was said to be negligent, especially as he had based his opinion on literature concerning the wrong type of spinal cord injury; as Mr. Kumar’s starting point was said to be wrong that was the essential focus of the defendants for this application.

Finally, regarding the pleaded failure to meet the recommended target mean arterial pressure set out in a disclosed document headed “South West Trauma Network (SWTN) Clinical Guideline (CG) Spinal Injury (Adult Major Trauma Patients) dated January 2020, it was submitted that it post-dates the accident and the document provides guidelines, not tramlines. It was further submitted that NICE guidelines make it plain the defendants’ conduct was perfectly reasonable.

The defendants were very critical of the Schedule of Special Damage for not demarcating which alleged injuries relate to specific losses claimed, such that it was said that I faced an insuperable task in trying to disentangle the items within the Schedule of Loss which would have been due to the initial non-negligent injuries arising on impact, and any which related to the pleaded case of secondary deterioration. Furthermore, it was argued that any damages relating to the pressure sore would be insubstantial and therefore not satisfy the threshold eligibility requirements of CPR Part 25.

I will return to these quantum issues, as necessary, when I have set out my conclusions regarding the likelihood of avoidable injury.

I remind myself that the claimant bears the evidential burden of proof and that I am required to look at the material before me and to make a determination on the balance of probabilities (to a high degree). For the purposes of this application, I need to make findings of fact if the issues are not too complex, always recognising that they will not be conclusive of the issues for the trial judge who will have the totality of material available to them when reaching their decision.

I have studied the records of the treating ambulance crew and the 3 lay witness statements in addition to the statement of the claimant and summarised them at paragraph 14 above. Mr. Dee is quite clear that he could not feel or move his legs after his fall. Such was his immobility that, despite being an active sportsman pre-fall, he remained on the spot where he had fallen, blocking part of the highway, until the ambulance crew moved him approximately 1 1/2 hours later. None of the witnesses claim that he could feel or move his legs apart from the 2 members of the ambulance crew whose non-CPR-compliant statements I found to be most unconvincing in this regard. Jane Cole said she performed a thorough examination and he had “full MSC x 4” which simply cannot be accurate given the subsequent findings of clinicians in the emergency department before and after scanning, and indeed the testimony of the claimant himself. Her paramedic colleague, who was the ambulance driver that night, also said he did not “recall the patient claiming to have any difficulty with any movement whatsoever” but his testimony is similarly uncompelling to that of Ms. Cole. Both colleagues put the lack of movement down to alcohol intoxication which simply does not fit the picture recorded by any of the other lay witnesses nor indeed the claimant’s experts.

Whilst 2 doctors at the treating hospital recorded some minimal limb power a few hours after admission within their treatment notes, the expert clinical evidence is sufficiently unclear at present for me to form a view to the necessary standard of proof, that this was indeed possible or likely given the findings on MRI scanning. Neither of those doctors has produced a witness statement. Furthermore, 3 other doctors had previously and separately examined Mr. Dee, and all had reached conclusions that there was no power in the lower limbs which is a high evidential bar to overcome. I am not saying it would be an insuperable bar at trial but confining myself to the task in hand regarding the interim payment application I cannot be satisfied to the appropriate standard.

Contrary to the defendants’ submissions, I am satisfied that the pleaded case is sufficiently clear that the claimant is not only seeking damages for a failure to improve in function with appropriate treatment, but also for a failure to prevent deterioration into the upper limbs. For example, paragraphs 6, 29, 30 at (f) regarding the first defendant, at (b), (g), (h), and (k) regarding the second defendant, and at (a) regarding the third defendant, as well as paragraphs 32-34 generally within the Particulars of the Claim address this topic. I will therefore turn to consider the factual matrix.

As a finding of fact, I consider the testimony of the claimant’s witnesses is compelling with regard to the initial existence of fully retained power and sensation in Mr. Dee's upper limbs after the fall. All of those witnesses are candid about the loss of function in the lower limbs and all of them are clear that there was still upper limb function following the fall, and notably hand grip. I have set out their testimony in the table at paragraph 14 so I will not repeat it. I specifically note that the evidence includes testimony from an off-duty doctor at the scene of the fall who was the first clinician to recognise the potential spinal injury and to conduct repeat observations over a period exceeding 1 hour. He found no upper limb diminution in power or sensation. For the sake of completeness, I record that shortly prior to handing down judgment counsel for the defendants drew my attention to a paragraph in the claimant’s expert neurosurgeon’s report where he noted that he had listened to the audio recordings of the calls to the ambulance service (which were not made available to me, by way of transcript or any other form). The expert recorded that the first call placed a few minutes after the accident described Mr. Dee as “complaining of a loss of feeling in his hands. He was noted to be struggling with feelings in his hands and feet. He was on the floor”. The other material available to me indicates the call was made by Matt Smith. I have no lay witness statement from him, and I do not consider that I should place any weight on the summary of the ambulance call, made in the immediate aftermath of the fall, when it is contradicted by all the other witnesses who were with the claimant for some time after the accident occurred and had a better opportunity to observe the claimant and to listen to what he was saying over an extended period.

The ambulance service PCR shows the control room receiving a very clear message from those at the scene of the fall that the claimant was complaining of a complete lack of movement in his feet and legs i.e., the contemporaneous account taken by the first defendant does not indicate any difficulty with the upper limbs. Whilst I am critical of the generalised assertions made by Jane Cole about what she did or did not examine, her reference to “excellent grip”, stands out for its specificity, and the fact of her testing the claimant’s grip is corroborated by the claimant and Andrew Prosser who accompanied him in the ambulance; I have no reason to doubt them on this. Thereafter the chronology shows some diminution in upper limb function over time which is clinically recorded as 4/5 power at 07:07 and “reduced tone in hands” but wrist, elbow and shoulder power intact at 09:20. Colin Anderson, the claimant’s friend who sat with him in the emergency department agrees that upper limb movement was reducing by this time. The deterioration gets worse through the claimant’s time in the critical care unit as recorded in the unit’s own observations and at the spinal rehabilitation centre after that. When he comes to leave that centre in April 2020, his discharge summary notes, “Richard has some useful movement in his arms. He has very limited movement in his hands and cannot grip anything very well”. Furthermore, on examination of his joints by the claimant’s expert spinal surgeon (in March 2021) on page 215 of the bundle he had a moderate reduction of shoulder abduction and external rotation on both sides and the range of motion of the arms is impaired. The defendants have examined the claimant but not chosen to release their evidence, save what has been recorded in the treatment clinical records.

The fact of the development of a sacral pressure sore some hours after initial injury is not contested, nor further tissue breakdown subsequently through to a grade 4 sore before it finally healed up. The dispute is around medical causation which I will address further below although the opinion expressed by the claimant’s expert is tempered by how long the claimant lay on his back in the road. I therefore need to consider that factual issue and make a finding for the purpose of this application alone.

Colin Anderson believes he was by Mr. Dee’s side within 2-3 minutes of the accident occurring, that Dr.Lyness arrived around 5 minutes later and “not long after we got to him he started to vomit. My wife and I had to roll Richard to stop him from choking whilst the doctor tried to immobilise his head”. On the basis of that testimony the claimant was not lying on his back for longer than around 10 minutes or so.

Andrew Prosser says the accident occurred at around 11pm and about 5-10 minutes later that Dr. Lyness arrived and that Mr. Dee began to vomit before the arrival of the ambulance and that the doctor had assisted him into the recovery position. This account does not assist me in my assessment of the amount of time Mr. Dee was lying on his back.

Dr. Lyness thinks he arrived at the scene of the accident at “roughly 11pm” and that the accident occurred “about 20-30 minutes prior to my arrival” and that “an ambulance had been called approximately 30 minutes before my arrival”. Then “Approximately 45 minutes after my arrival the claimant vomited ..I therefore helped him move to recovery position… A second 999 call was made shortly afterwards to give an update ..with regards to the new vomiting…”On the basis of that testimony the claimant was lying on his back for about 1hour and 15 minutes. I do not think these approximate timings can be correct by reference to the actual ambulance records which I consider below. As to the initial time of the fall, Dr. Lyness was not a witness to it, so I prefer the evidence of those who were with Mr. Dee on the evening prior to the accident and who attended him immediately after it.

The ambulance records note that they were first contacted at 23:10 and that a second call was made at 23:42 by which time Mr. Dee had vomited. I believe that these are the most reliable records which together with the lay witness accounts would indicate a maximum time of the claimant lying on his back in the road (not the recovery position) of about 40 minutes, but it may have been rather less. All of the accounts confirm that those at the scene before the arrival of the ambulance crew had been determined to move Mr. Dee as little as possible and nobody says he was moved out of the recovery position after vomiting.

Apart from the limited admissions of breach by the ambulance crew recorded at paragraph 9 of this judgment (failure to recognise the spinal risk, failure to immobilise, failure to initiate IV therapy and failure to pre-alert the hospital to the spinal injury), there is a whole catalogue of poor handling of the claimant’s medical treatment, some of which is not sufficiently serious to be considered negligent, based on the material before me, but overall amounting to what could well be considered a very good training case study for clinicians in how not to treat a spinal cord injured patient. It is of course my task to focus on the areas of negligence, not poor practice which ultimately made no difference to the overall outcome, even if that was more by luck than judgment on occasion.

The sad chronology begins with the incorrect categorisation/triage of Mr. Dee by the ambulance service as somebody who had only sustained a minor facial injury whilst under the influence of alcohol. From that point onwards, until the clinical examination by a mid-ranking accident and emergency doctor at 07:07 the following morning, none of the treating professionals appears to have taken proper independent observations of his vital health signs or exercised good judgment as to his correct medical status. The evidence before me from the claimant’s consultant in emergency medicine, Dr. Kennedy, which is not contradicted by expert opinion, is that Mr. Dee had only consumed a moderate amount of alcohol and “by the time he was delivered to the A&E department his alcohol levels would have been very low if even present. Dismissing significant symptoms as being due to intoxication is very poor practice, and specifically warned against”.

Although much of the claimant’s expert evidence points to the necessity for immobilisation of a damaged spine, at least until it has been fully scanned and diagnosed, there are a number of reasons why I cannot reach a finding, at this stage, that failure to do so was negligent (i.e., that this was a breach of duty causing or materially contributing to injury in the specifics of this case). For example, Dr. Kennedy (expert in emergency medicine) only opines that it is “entirely possible”, that this failure led to deterioration and the claimant’s expert neurosurgeon concludes it is not “a significant contributor” to Mr. Dee's overall functioning now. This is against a backdrop of opinion from the defendants’ experts that the fracture was stable, and the spinal cord was irreversibly injured from the time of the fall.

Similarly, on the basis of the expert opinion evidence currently before me I am not satisfied that it can be demonstrated that the original spinal cord injury to the lower limbs was of the type where there could be any significant improvement to the baseline condition following the fall, even with good rehabilitation. Mr. Kumar may well be able to satisfy a trial judge of his thesis upon cross-examination, and assisted by further medical literature and expert reporting but I am not in that position. None of the remaining clinical experts relied upon by the claimant apart from Dr. Bell opine as to the potential or likelihood of improvement of symptoms; rather their focus to date has been on avoiding deterioration. Dr. Bell says it would be reasonable to suggest that there would be some anticipated recovery with good care, but he has not suggested what that improvement might mean in terms of function or reduced loss.

On the basis of the expert opinion evidence before me I am also not satisfied that it can be demonstrated that the original spinal cord injury to the lower limbs, would not have included some damage to the bowel and bladder. The timing of onset is unclear. There is insufficient detail within the expert opinions provided by the claimant for me to determine this issue for the purposes of the interim payment application. That evidence, with the exception of Mr. Kumar, focuses on other parts of the body and Mr. Kumar’s views are heavily predicated on the classification of injury at the point of the fall which is strongly contested by the defendants’ experts.

The allegations of breach which are supported universally by the claimant’s experts focus on the failure to manage Mr. Dee’s sustained period of hypo- tension which they do say quite strongly and clearly, on the balance of probability, generated a secondary injury and extended the area of irreversible injury. Dr. Kennedy, specialist in emergency medicine, references the European Trauma Course Manual on the need to exercise care to manage symptoms of neurogenic shock following spinal cord injury by ensuring optimal fluid resuscitation, as too little will lead to increased tissue ischaemia, and any episode of hypotension should therefore be avoided. At page 161 in the bundle, he states that the failure of medical review when Mr. Dee became hypotensive is below an acceptable level of care. I accept the claimant's submissions that his opinion is clear, persuasive and unlikely to result in there being a range of reasonable opinion as regards to the failures on the part of the first and second defendant. He defers to other experts on factual causation in the specifics of this case.

The claimant’s intensive care expert, Dr Bell, describes “the primary principle of management” of this type of injury as one avoiding secondary injury by, inter alia, managing cord perfusion and oxygen delivery. He has expressed his opinion on the balance of probabilities that the sustained hypotension experienced by Mr. Dee, and the accompanying reduction in systemic oxygenation, generated a secondary hypoxic ischaemic injury extending the area of irreversible injury. The claimant's expert neurosurgeon also identifies this breach of duty and expresses his view on the balance of probability that “any neurological deterioration suffered by Mr. Dee following initial admission to the emergency department… was.. due to failures in management”. Mr. Kumar has stated on the balance of probabilities that with proper care Mr. Dee would not have developed additional impairments and has identified “the crucial factor” responsible for secondary injury as “sustained hypotension for 12 hours.”

I have taken note of the discrepancies in opinion as to what the target mean arterial blood pressure should have been, but I do not believe that undermines my conclusions in a situation where there was a total failure to do anything to properly monitor or manage blood pressure in the crucial hours post-injury. I am satisfied on the balance of probabilities (to a high degree) that Mr. Dee’s blood pressure was not properly managed by the ambulance crew, who did not even record a number of their readings (which is uncontested) and, who inserted a cannula, they say because they were concerned about blood pressure, but failed to hook it up to any IV fluids at any time (again uncontested). The second defendant does not contest treatment records showing a fall in blood pressure some hours prior to clinical examination in the emergency department, and many hours after arrival, and the fact that no IV fluids were administered at all before 08:15.

Furthermore, there is nothing in the 2 expert opinion letters obtained by the defendants addressing the upper arm injuries. The phraseology about deterioration being rare is all within the context of lower limb injury and directed towards the question as to whether the claimant could have recovered any useful lower limb function after the initial fall. There is a brief reference to it being “sensible to maintain a normal blood pressure” and to monitor for postural hypotension in the context of the issue of whether to immobilise or not. This does not contradict what the claimant’s experts are saying loud and clear about blood pressure management. Where a defendant has not put forward evidence on causation issues, I am entitled to order an interim payment if I am satisfied with the claimant’s evidence to the requisite standard. I am satisfied on the material before me that the claimant will succeed at trial in recovering losses for this mismanagement and the resultant injury. The only expert evidence that I have from the defendants is incomplete, does not comply with CPR part 35 and I have not had sight of the letters of instruction resulting in the opinions being drafted which appear to be incomplete concerning the issues this claim raises; the instructions are not summarised within the letters either.

I have previously mentioned that the defendants have quite candidly stated that they may admit liability for damages shortly concerning this aspect of the claim. The Defence admits breach of duty but denies causation due to the amount of time that the claimant spent on the road before any care commenced by any defendant. I have already made a finding, purely for this interim payment application, that the claimant was not lying on his back in the road for more than 40 minutes. The ambulance arrived at 00:46, 1hour 45 minutes post-injury. Dr. Kennedy says that pressure sores can potentially develop within 20 minutes but there is no record on admission that his skin was not intact. He is critical of the delay of 6 hours by the hospital in recognising the risk of pressure sores developing and steps being taken to address this. He classifies this omission as both a breach of duty and causative of damage. Mr Parkhouse, expert plastic surgeon for the claimant has opined that the causative element of the sore was “likely” to have been unrelieved pressure while lying on the road “followed by a further period of unrelieved pressure on the trolley in the A&E department before the spinal cord injury was diagnosed”. Further, that the time spent by Mr. Dee sitting up in ITU caused direct pressure on the sacrum which was “likely to have aggravated [the sore] that had already begun”. However, his opinion is based upon him considering that Mr. Dee had spent “a period of just over one and a half hours before the ambulance arrived” which is contrary to my finding of fact which indicated a much lesser period of time. Accordingly, I find that the defendants' various omissions caused or made a material contribution to the development of the initial pressure sore and to its deterioration and that the claimant would succeed on this point at trial, based upon the material before me.

Happily, I do not believe there is any dissension between the parties as to the correct methodology for determining the amount of an interim payment pursuant to the two-stage test derived from the case of Eeles v Cobham [2009] EWCA Civ 24. First, I must make a conservative estimate for each relevant head of loss. Those estimates will then be discounted globally in paragraph 68 by 10%, so that only a reasonable, albeit high, proportion of my overall conservative estimates is allowed for the final sum approved by way of interim payment at this stage.

Whilst I accept the defendants' criticism that the pain suffering and loss of amenity award pleaded in the schedule of loss is taken from the Judicial College Guidelines (“Guidelines) (16^th edition) in respect of tetraplegia, and therefore inappropriate, I do not consider it a particularly difficult task to consult the Guidelines for a more appropriate valuation pertaining to reduced range of motion in the shoulder and arms and weakness in the hands, especially with grip and dexterity.

First, I remind myself what has been recorded about the degree of the upper limb injury so far. I have previously referenced (at [35] above) that on 07/04/2020 in a hospital discharge summary the claimant had very limited movement in his hands and could not grip anything very well. That same report recorded that his finger joints (MCP and PIP) were at ¾ flexion. Also, that in March 2021, on page 215 of the bundle, he had a moderate reduction of shoulder abduction and external rotation on both sides and the range of motion of the arms was impaired. At page 246 it was recorded that he has severe generalised spasticity including his arms. His expert occupational therapy evidence dated 21/04/2022 and found at page 342 in the bundle noted a loss of the natural arches in the hands, giving a “flattened appearance”, an ability to “use an adapted grasp to hold a pen with his right hand once he had “woken up” his hand. He could hold a thermal cup by sliding his fingers through the handle and with a lot of focus could hold a sheet of paper but only with his left hand. Mr. Dee was able to demonstrate these actions a few times before being impacted by fatigue. Mr. Dee reported that to cope with the pain and spasms in his hands he is regularly set up with a bowl of warm water to soak them in, which he finds beneficial”. Mr. Dee’s expert physiotherapy report at page 762 in the bundle records his function as at November 2022, following a rehabilitation programme, as having upper limb power around the shoulders, elbows and wrists at grade 5, but weakness in the hands of the long finger extensors and the intrinsic muscles, more so on the right than the left (prior to the injury he was right hand dominant).

I have studied the claimant’s quantum witness statements and at paragraph 55 of Mr. Dee’s statement dated April 2022 he says, “My hands continue to be an issue for me in terms of the lack of strength and dexterity which limits what I can do”. Mr. Dee's wife, Dawn, states at paragraph 49 of her witness statement, similarly dated, that she usually has to help her husband towards the end of a meal when his hands become too weak to scoop the food onto the fork. Mr. Dee's Immediate Needs assessment dated September 2022 at page 873 in the bundle records that he can wheel himself around in his wheelchair using bike gloves, but that he cannot cut up meat at meals though he can hold cutlery, using a fork or spoon to eat with. A prior case management assessment in March 2022 referenced at page 664 of the bundle that, “He was able to form a loose fist with both hands and could partially oppose his thumb towards his fingertips, but movements were slow. Active movement within the right-hand was more limited and movements were poorly co-ordinated”.

Returning to the Guidelines, the orthopaedic bracket C for shoulder injuries that are serious, has a range from £12,770 - £19,200 and includes functional difficulties with restricted movement and weakness of grip. It also includes brachial plexus-type injuries which are not severe. It cannot be appropriate to consider the less severe bracket titled “moderate” as that only encompasses injuries lasting more than 2 years where they are soft tissue injuries.

Another orthopaedic bracket within the Guidelines which might be of assistance with the valuation is bracket I, for hand injuries. That section begins with a general introduction stating, “The hands are cosmetically and functionally the most important component parts of the upper limbs”. There are five brackets for injuries which do not involve the total or effective loss of both hands, but which are not confined to loss however severe, to individual digits. They overlap somewhat in terms of valuation, so I will set them out fully:

I invited counsel to make brief submissions prior to the handing down of this judgment on the correct place within the valuation bands for me to conservatively estimate the loss. Counsel for the claimant invited me to adopt a “reasonable starting point” of comparing the difference between awards for tetraplegia and paraplegia but I indicated that I felt there would be significant overlap and without the benefit of reported cases within the bundle declined that approach. I wished to focus instead upon functional outcomes as best I could, rooted in the available expert evidence. Thereafter he contended for a figure of £50,000 and referenced bracket (I) (b) “serious damage to both hands, emphasising the bilateral nature of the injuries, if I was not minded to accept that the correct guideline was 7(F) “Other Arm Injuries”.

Counsel for the defendants submitted that the correct approach was to utilise bracket 7(C) for the shoulder injury, stating that it was at most midpoint if not lower quartile of the serious category which I have referred to at [55] above. Contending for the lower quartile the defendants submitted £14,377 was a suitable figure. As regards the hand injury the defendants maintained that the more appropriate bracket was category (g) or (h), which when combined with the award for the shoulder injury would produce a RPI inclusive PSLA award of £20,000 on a conservative basis. They alerted me to the narrative description attaching to hand injuries at category (I) (e) where there is a 50% loss of capacity as being inappropriate and drew my attention to the narrative overlap with the even higher value category (I) (b) contended for by the claimant, which was for more serious injuries where function is significantly impaired.

I conclude that as there is reference in the shoulder injury bracket to impairment of the whole arm including grip, and after noting some level of recovery in the upper arms following rehabilitation, but continuing significant deficit in both hands, I would do best to focus on the Guidelines available for injury to two hands. I do not doubt that in due course there is likely to be further consideration of the loss of some other upper limb function but given the overlap potential and some apparent recovery through therapeutic input, I think it is better to focus the hands today as that is where I have the best level of detail. I therefore also decline to value the interim award on the basis of an “arm injury” as contended for by counsel for the claimant, rather than injury to the hands simply due to the material before me evidencing functional outcomes. Notably, since the hearing I have read the claimant’s own occupational therapy report dated 21/04/2022 which states at 3.1.3 “Mr. Dee was able to lift both arms above his head and reach behind his back to low thoracic level, demonstrating a good range of active movement in his shoulders. Full active flexion and extension of his elbows, with full pronation and supination of his forearms was noted. He was able to resist passive flexion of both wrists when actively extended”.

The importance of injury to both hands for someone who has no use of their legs cannot be understated. Whilst I have a fairly good level of detail around Mr. Dee’s ongoing functional hand impairments, the Guidelines contain functional descriptive overlaps that are not as clearly worded for this type of injury as one might wish, no doubt due to the paucity of suitable supporting case law. I did have a cursory look at both Kemp & Kemp, The Quantum of Damages and Lawtel Quantum reports to see if I could find any authorities to assist but nothing relatively recent seemed comparable, and no cases were put before me in the bundle. Doing the best I can, I do not believe the award for the hand injuries could be less than £29,000 which needs to be uprated as set out in the following paragraph. Only category (I) (b) appears to relate to injuries to both hands, but category (b) is too broadly drafted for me to apply it at this interim stage. The phrase “significant loss of function” is not measurable in the way I would wish or need to justify applying such a high level of award. It is something short of total loss of both hands which is category (a) above it. The description at category (e), (valued at less than (b)), sounds more serious than Mr. Dee’s situation (at least as currently measured in reports) but only applies to one hand, whilst the broad description at (g) of significant impairment, but only to one hand is again very generic but is not inconsistent with Mr. Dee’s injuries, which affect both his hands and therefore includes his dominant hand. I do not forget that the appearance of Mr. Dee’s hands is also permanently altered due to muscle atrophy causing “flattening”. £29,000 is the overlap figure at the bottom of category (e) and at the top of category (g) which is why I have chosen it. Category (h) is simply too low, relating to lacerations and soft-tissue injuries to one hand only, albeit with some permanence at the higher end of the bracket.

The introduction to the Guidelines reflects RPI increases to September 2021 only and therefore needs to be uprated further to reflect recent inflation. I am reliably informed that the Hargreaves Lansdown inflation calculator produces an uprating to 10^th November 2023 of 22.6% which I will apply in my summary. For completeness, I note that the defendants had submitted that any RPI adjustment should be considered in the context of being a guideline not a tramline so they did not favour the application of a precise statistical sum, but I considered that there was no justification in this case not to apply a real-life percentage uplift where I was relying upon the Guidelines rather than reported cases to value this particular injury.

Interest is claimed at 2% per annum from the date of service of proceedings which amounts to £751.10 on the PSLA award for the period from 29^th July 2022 to hand down of this judgment on 13^th November 2023 (being the composite rate of 2.59% as submitted by counsel for the claimant).

Counsel for the claimant submitted that even if Mr. Dee had been rendered paraplegic by the original fall he would still have been able to self-propel, transfer, do his personal care and drive with hand controls. I cannot find authority for all those functional skills within the present material before me. Mr. Kumar does state on the balance of probability that the claimant “would have recovered to the extent that he would have retained useful motor power and sphincter control, up until the latter years of life he would have been able to walk indoors unaided and outdoors aided … and be independent in some aspects of daily living” (at page 816 in the hearing bundle). However, that opinion is expressed within the context of his spinal classification which I have been unable to safely determine at this juncture. The other experts relied on by the claimant do not address the actual functional outcomes for the claimant in their opinions on causation which support avoidable deterioration in the upper limbs, as they might relate to out-of-pocket expenses. I have already mentioned that the defendants sought to dissuade me from approaching any calculation based upon the Schedule of Loss because it did not separate out the various claims adequately.

I accept that the Schedule of Loss does give some credit for a baseline unavoidable injury, but it is still not possible to extract losses purely associated with the upper limb disorder for the vast majority of sums claimed. I am confident that the upper limb injury itself, and the factual evidence in support of consequential losses merits an award for some gratuitous care, but on the present material I am unable to distinguish the relevant amount of care from that claimed for other aspects of injury, where I cannot yet be satisfied the claimant will succeed at trial in proving negligence. The items that I can separate out are for de minimis amounts in the Schedule, i.e., for adapted cutlery (£91.35), large-handled mugs (£194.88), replacement electrodes for FES upper limb (£2012.40) and active hands (£488.40). I recognise that some additional therapy will be needed to optimise upper limb function (over and above therapy directed towards strains placed on those limbs by having a lower limb spinal cord injury) but I cannot calculate the amount from the Schedule. There will be additional heads of loss no doubt, which I have not mentioned. For now, I would place a conservative valuation on the items I have been able to identify at £2500.

There is no Judicial College Guideline to assist with valuing pressure sores. Counsel for the claimant handed up 2 case authorities to try and assist me. The first, PW v Abertawe Bro Morgannwg University Health Board & Others [2014] reproduced from a Lawtel report, related to an out-of-court settlement on behalf of a 34-year-old woman who was hospitalised for major spinal injury, rendering her paraplegic and who developed a Grade 4 pressure sore, similar to the claimant. She had to undergo numerous debridement procedures followed by vacuum-assisted closures. Liability was admitted but causation was denied. She alleged her spinal rehabilitation was much delayed due to the sores and that she now required a care package more akin to a tetraplegic as a result. The settlement on a global basis was for £1,000,000 (suggested to be worth £1,500,000 after allowing for inflation) with an estimate of the pain and suffering award by the claimant’s solicitors of £100,000.

The second case put before me was PH v Great Western Hospital NHS Foundation Trust and was similarly reached an out-of-court settlement in 2018. The claimant was a 77-year-old paraplegic man (at the date of settlement although his injury had occurred at age 72) who developed a full-thickness sacral ulcer that developed into a large cavity wound. He required prolonged hospital care and remained at risk of further ulceration at the site. He had been noted to have a grade 1 sore on admission. He was in hospital for just over a year (on and off) with a (deteriorating) sore throughout. He had increased care needs when finally discharged. Negligence was admitted and a global settlement reached of £250,000. It was estimated that the pain and suffering award amounted to £80,000 and past losses of £20,000. I was not supplied with the uprated figures.

The defendants did not supply any alternative cases, nor a detailed critique of the authorities supplied by the claimant, simply submitting I was facing an insuperable task and this aspect should be adjourned as it was possible some admissions would be made, relatively shortly. If any such admissions have been made, they have not reached me or the court CE file.

I remind myself that whilst Mr. Dee’s sore lasted from May 2019- December 2019 (approximately 7 months) and the wound has remained healed since then, he is left with scarring and vulnerability. His expert plastic surgeon states that he will now require pressure-relieving devices for the rest of his life. He also underwent 5 debridement procedures and had a vacuum dressing applied. He has also had pressure areas on his heels. I am entitled to form a view on the material presented to me, and the defendants have not chosen to put in evidence of their own. I take account of the fact that Mr. Dee is closer in age to the claimant in the second case but did not suffer quite as long as him. I am content to value the injury for present purposes at £80,000 (without adding any uprating element).

I will allow the usual 2% pa interest from service of proceedings to be added to the general damages figure.

I am aware that the occupational therapy report relied upon by the claimant states at paragraph 3.1.7 that to reduce the likelihood of further skin breakdown Mr. Dee now wears alternative clothing and footwear. He had a pressure-relieving cushion on his wheelchair, a pressure-relieving mattress on his bed, a Toto turning bed to change position during the night and used pillows to position his legs. These items then appear in the Schedule of Loss. What is much less clear to me is how many of the items would have been required anyway as good preventative practice for his paraplegia, regardless of his actual pressure sore history. I am therefore not able to include any element for these items within the interim payment being ordered at this juncture.

Neither the hearing bundle nor the Schedule of Loss contained any details of the DWP recoverable benefits which should ultimately be taken into account. However, subsequently, a certificate was produced, and it appears that given the heads of loss which I have taken into account for the purposes of this interim payment, I do not need to consider that aspect further.

Having reached a total conservative estimate for each of the identified heads of loss I have prepared a summary of those estimates below. It can readily be seen that these total £121,118.85. I am then discounting that total by 10% to achieve a suitable proportion, albeit a high one, in accordance with my discretion and previous case authorities which can be readily referenced in the notes to CPR part 25 in the White Book. The total amount to be awarded today is in the sum of £109,006.96. My assessment does not bind the claimant to spend the interim award on the items I have used as a basis for my calculations, and nor does it fetter a trial judge in their independent assessment of the correct heads of loss in due course. I am satisfied on the material before me that the claimant will succeed in his claim for the 2 injuries that I have described. I am also satisfied that the sum ordered does meet the threshold test of being a “substantial” award even though it is rather less than the claimant was seeking in their application. A six-figure award in the context of personal injuries for just 2 aspects of injury claimed, namely some loss of function/impairment in both hands, and a Grade 4 pressure sore is not a negligible figure. It exceeds the portal, fast track, and intermediate track limits for damages claimed in personal injury cases and is a substantial amount.

Accordingly, an interim payment is ordered in the sum of £109,006.96 and consequential directions will follow.