In recent times, there has been a sea change in the approach to the quantification of damages in cases of amputation with multi- million pound awards being made in the most serious cases.
That change has primarily been driven by the awareness and availability of new procedures and prosthetic provision, resulting in an improvement not only in the cosmetic result which can be achieved, but also significantly improved function; those combined with excellent rehabilitation result in amputees not being resigned to a life with a basic prosthesis and a much restricted unfulfilled life.
The change has come alongside in this jurisdiction with the now established approach of the NHS whereby there is no ring-fencing for provision for amputees in any respect and they are subject to the same budgetary constraints as all other patients face within the NHS.
The change also has to be seen against the background of other important changes. It may have been hoped that by this stage in history we would have reached an enlightened age where disputes were settled other than warfare, but recent times have seen quite the reverse, with sadly young and fit men and women soldiers becoming amputees. Fortunately, they often have an amazing motivation towards rehabilitation and should receive the best that human ingenuity can provide. Running alongside all of this has been the huge impact of sport; the Paralympics in London were awe-inspiring and some (regrettably not all) paralympians are real mentors.
The proper and thorough investigation of quantum in cases of amputation is critical to achieving an appropriate quantification of the claim.
It should now be known generally that the provision which is available in the NHS is limited; furthermore, and importantly, it is not only the provision which is available in this jurisdiction which needs to be considered but elsewhere in the world which can now be accessed.
By way of example, there are now available essentially surgical procedures which will require consideration; they are procedures such as osseous integration and ITAP. There are a number of such procedures and a number of experts around the world who are able to deal with them. There has been some limited provision in the United Kingdom but, in part, funding remains a problem. To provide a basic explanation of osseous integration, it involves the surgical introduction of a titanium rod (with fixation) into the bone of the “stump” of the amputated limb. The titanium rod protrudes outside the bone with titanium having the property (to put it simply) of not being rejected by human tissue. The titanium rod then provides an appropriate anchorage for the prosthesis, whereas with a conventional prosthesis the socket has to be supported by the soft tissue of the stump. After osseous integration has been undertaken, the prosthesis is supported by the titanium rod which is anchored into the bone and provides the potential for different or enhanced prosthetic provision. It should be known that although, for example, osseous integration has been largely undertaken overseas (Professor Branemark’s Centre in Sweden), there are patients who have been treated there and are thereafter followed up and “maintained” by the NHS. There are also potential exciting developments afoot with the use of, for example, again putting it simply, a titanium mesh in addition to a titanium rod allowing for the introduction of “electrical” circuitry in conjunction with the prosthesis.
Pursuing these new developments is, of course, necessarily expensive. However, the position of the law is trite: the victim (claimant) is entitled to be put in the position that he (or she) would otherwise have been in had they not been subject to the breach of duty insofar as damages can do so.
When it is sought to be argued against a victim that the cost of some new type of provision (which would in fact enable them to have significantly better cosmetic presentation or functional result), is unreasonable, it does cross the mind as to whether those persons seeking to contend that the provision is unreasonable would hold such a vehement view if they were in fact the victim.
It is important to remember that when there is consideration of any medical (or prosthetic) procedure or provision, it is primarily for the victim and their treating clinician to decide whether or not such a procedure or provision is appropriate. The fundamental point is that of the patient’s own choice with his own advice from his treating clinician. It is not a matter for any medico-legal expert directly. This is particularly important as the availability of cutting-edge type procedures increases. It is not for a medico-legal expert to stand in the way of a victim and contend that in his view it would not be recommended for a certain procedure or provision to be made; rather, the question is that of the victim’s patient choice and provided he is being advised (as he almost invariably always will be) by a clinician who is properly qualified, his views supported by other respectable clinicians and acting in the victim’s best interests then the costs should be recovered.
Before I move on to consider some specific heads of damages, a general point as to the approach of medico-legal experts in certain cases. An attempt is occasionally made, for example, in terms of prosthetic provision by a medico-legal expert contending that following settlement in their experience the person compensated often does not use their compensation to make full private provision for prosthetics. In my view it is always dangerous (and, in fact, inappropriate) for a medico-legal expert to descend into the arena of the Schedule (or Counter Schedule) of damages. In particular, such an approach is inappropriate as not only will the medico-legal expert have no proper understanding of the principles of the assessment of damages, they, more particularly, will have no proper understanding of the particular difficulties which claimants may face, for example, not having secured full liability, having had other difficulties with the claim, for example, in respect of, say, a loss of earnings claim, and the inherent problems with claims such as a Roberts v. Johnston assessment of an accommodation claim and the fact that, for example, the present discount rate of 2.5% does not properly reflect the secure returns which a claimant should be entitled to expect in a properly compensatory award.
I turn now to general damages briefly. Although it is fair to say that it is impossible to put a value for “pain, suffering and loss of amenity” on an injury, the values that in fact are put are derisory and embarrassing; for present purposes, one example will suffice. The current JSB Guidelines provide for the level of general damages for the loss of both arms to be in the range of £177,000 to £220,000 and with a 10% uplift at £194,700 to £242,500. Just imagine, for a moment, losing both of your arms and being presented with a figure in those ranges as “true” compensation. The 10% uplift does not need detailed discussion, it arises from the most unfortunate confusion between costs and damages – the 10% uplift sought to replace the loss of success fee on costs by applying it as an increase in general damages!
As far as prosthetic provision itself is concerned, the real point is the proper and thorough investigation of full prosthetic provision which properly needs to be made in a case allied with the necessity for any appropriate surgical or other procedures as well as excellent input by way of rehabilitation.
An important point to note in respect of prosthetic provision is for that part to be by way of a periodical payments order; it is not the case that a periodical payments order is only appropriate (or a proper convention has developed that it is only appropriate) for care and case management provision; it is an entirely appropriate provision for prosthetics as, indeed, it is an appropriate case for other claims such as loss of earnings and the costs of the Court of Protection and related costs.
Other than the costs of the prosthetics and care and related costs (together with any equipment), the other major element of an amputation case is that of accommodation.
It should be noted that an accommodation case is not only relevant in cases where there has been a lower limb amputation. Where there has been a lower limb amputation at any level an accommodation claim will usually arise – whether it is an immediate accommodation claim (which it most usually is), or one arising in the future. However, it should not be considered to be the position that there will be no accommodation issues arising where there has been only an upper limb amputation. Although it may not be the case that single level accommodation is required, nevertheless there are many accommodation changes which can be made and can be advised upon by a properly experienced accommodation (architect) expert, which will be of benefit to an upper limb amputee; indeed, changes which can significantly improve the quality of life.
A thought provoking approach in this respect by an architect who is properly experienced in providing such advice was to advise that to get an idea of the difficulties that an upper limb amputee faces is to place your hand in your pocket and keep it there for the whole morning whilst working in the office and just see the many difficulties that flow from that and which will be enlightening in the understanding of the disability arising in such circumstances.
Despite the well known injustice of the approach to the assessment of accommodation claims in accordance with the principles of Roberts v. Johnston, the approach remains; the injustice flows of course not only in amputation cases but across all serious injuries claims and particularly so in cases where the victim is of mature years or otherwise has a less than full life expectation. Unfortunately, “legal economics” are such that it is almost impossible to think of a situation where it would possibly be in the overall economic interests in a litigated case for any claimant to pursue a point to the higher courts on the Roberts v. Johnston point. In the past, it might just have been possible to take a point of principle of such importance with appropriate legal aid provision – realistically, that sort of approach is now effectively impossible and more importantly, it seems that that will now be the situation into the foreseeable future. Furthermore, the recent and well known changes to personal injuries work, in particular, in respect of costs and the financial pressures that those bring to victims seeking proper and fair access to justice means that it is going to be rare indeed for any cases to be pursued, and certainly pursued to the higher courts, on points of principle and thereby bringing an unfortunate halt to the development of law in a modern (and in fact, whatever may be said, prosperous) society.
Finally, there are provisional damages. These are again entirely appropriate in amputation cases where the claimant faces a serious deterioration; that serious deterioration in amputation cases will often arise where, for example, there may be the risk of a higher amputation or, indeed, a risk of a further amputation rendering someone a double (or more) amputee.
SATINDER HUNJAN QC