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  Lynch   v Princess Alexandra Hospital NHS Trust [2026] EWHC 657 (KB) (20 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/657.html
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[2026] EWHC 657 (KB) | | |
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THE HON MRS JUSTICE ELLENBOGEN DBE

**Julian Matthews (instructed by Attwaters Jameson Hill) for the Claimant
Erica Power (instructed by Kennedys) for the Defendant

Hearing dates: 3, 4, 5, 6, 9, 10, 11, and 16 December 2024**

HTML VERSION OF APPROVED JUDGMENT ____________________

This judgment was handed down remotely at 10:00am on 20 March 2026 by circulation to the parties' representatives by e-mail and by release to the National Archives.
Table of Contents
| Introduction | | paragraphs 1 to 3 | | The Evidence | | paragraphs 4 to 9 | | Evidence of fact | | paragraphs 4 to 95 | | | a) The Claimant | (1 to 58) | | | b) Mrs Natalie Lynch | (59 to 82) | | | c) Ms Linsey Lynch | (83 to 84) | | | d) Ms Georgia Randles | (85 to 90) | | | e) Ms Zoe Dixon | (91 to 95) | | Expert Evidence | | paragraphs 96 to 335 | | | a) The orthopaedic experts | | | | i. Mr David Conlan | (97 to 163) | | | ii. Mr Mark Ashworth | (97 to 163) | | | b) The physiotherapy experts | | | | i. Ms Susan Filson | (164 to 172) | | | ii. Ms Sara Dickinson | (164 to 172) | | | c) The care experts | | | | i. Ms Emma Benfield | (173 to 202) | | | ii. Ms Nicola Lawson | (173 to 202) | | | d) The psychiatry experts | | | | i. Dr Rachel Gibbons | (203 to 214) | | | ii. Dr Francesca Denman | (215 to 232) | | | e) The accommodation experts | | | | i. Mr James Nocker | (233 and 331 to 335) | | | ii. Mr Gavin Hill | (234 and 333 to 335) | | Analysis of the Evidence | | paragraphs 236 to 306 | | Damages | | paragraphs 307 to 389 | | | a) Provisional Damages | (308 to 313) | | | b) Compensatory Damages ? the principles | (314 to 318) | | | c) Future Losses | (319 to 371) | | | d) Future Loss of Earnings | (372 to 376) | | | e) Future Pension Loss | (377 to 379) | | | f) Past Losses (agreed) | (380) | | | g) General Damages for Pain, Suffering and Loss of Amenity | (381 to 387) | | Summary and Conclusions | | paragraphs 388 to 389 | | Annex A: | Schedule of damages payable | | | Annex B: | Order for provisional damages | |
Mrs Justice Ellenbogen DBE:
Introduction
The Claimant was born on 3 April 2000 and is now 25 years old. Her claim arises from the Defendant NHS Trust's admitted clinical negligence, constituted in its failure to have diagnosed and treated developmental dysplasia of her left hip ('DDH'), present from birth. In the absence of that negligence, it is agreed, she would have required early non-invasive treatment, resulting in an essentially normal hip and subsequent development and avoiding the need for surgery. In the event, her DDH was not diagnosed until June 2003, by which time her hip and socket had developed abnormally, such that she did not develop normal walking; her hip was fixed in dislocation; and, over the course of her life to date, she has required numerous operations, culminating in a total hip replacement ('THR') on 25 November 2022. She faces further revision surgery in later life. This judgment follows a hearing to assess the damages payable to her by the Defendant NHS trust and the bases upon which they ought to be awarded.
I received evidence of fact from the Claimant herself; her half-sister, Linsey Lynch; her friends, Georgia Randles and Zoe Dixon; and her mother, Natalie Lynch. I also received expert evidence for each party in five disciplines: orthopaedics; psychiatry; physiotherapy; occupational therapy/care; and accommodation. The Claimant relied upon the expert evidence of Mr David Conlan, Consultant Orthopaedic Surgeon; Dr Rachel Gibbons, Consultant Psychiatrist; Ms Susan Filson, Consultant Chartered Physiotherapist; Ms Emma Benfield, Occupational Therapist; and Mr James Nocker, Surveyor, specialising in accommodation, including as it relates to the needs of disabled individuals. The Defendant relied upon the expert evidence of Mr Mark Ashworth, Consultant Orthopaedic Surgeon; Dr Francesca Denman, Consultant Psychiatrist; Ms Sara Dickinson, Chartered Physiotherapist; Ms Nicola Lawson, Occupational Therapist; and Mr Gavin Hill, Chartered Architect, specialising in the design of accessible accommodation, in particular for those who are disabled. Each expert produced his or her own report(s), and contributed to at least one report prepared jointly with the expert of the same discipline, identifying their areas of agreement and disagreement.
As the list of issues stood at the conclusion of the hearing, it ran to ten pages. Broadly summarised, the following matters arise for determination, each comprising a number of sub-issues:
a. the appropriate approach to compensation;
b. whether, and, if so, on what basis, an award of provisional damages is appropriate in this case;
c. the Claimant's prognosis and associated needs, having regard to her pleaded case and the expert evidence;
d. the appropriate award for general damages, for physical and psychiatric injury;
e. past losses having been agreed, the nature and extent of future care needs, including accommodation requirements; and
f. the extent of lost earnings and pension.
The facts
I begin by setting out the factual background, as apparent from contemporaneous documents and the oral evidence, much of which is not in dispute. Where it has been necessary to resolve competing accounts, I have done so on the balance of probabilities. I am satisfied that each witness of fact did her best to assist the Court and to give an accurate account of events from her perspective, though, as I shall explain in due course, I did not always consider that perspective to reflect the true position.
A summary of the Claimant's relevant medical and employment history to date of trial
2003 to 2006
On 20 June 2003, the Claimant was referred to Great Ormond Street Hospital ('GOSH') following diagnosis by the Defendant of a dislocated left hip. On 29 September 2003, she underwent an open reduction of that hip and a proximal femoral osteotomy (with a view to restoring normal alignment). A hip spica (a plaster cast running from waist to ankle) was applied and worn for eight weeks. The Claimant's evidence was that she did not remember very much about that operation because she had been young. She remembered having been at home with her legs astride in a Y-shaped plaster cast.
On 13 February 2004, it was noted that the Claimant had a limp and that her left foot was turned out. On 9 June 2004, she was recorded to have developed fixed 30 to 40-degree external rotation deformity of her left hip. On 10 January 2005, she underwent surgery to remove the original metalwork, and a new plate was installed. A further proximal femoral osteotomy was performed. The Claimant's evidence was that, during her recovery following that operation, she had used a wheelchair and crutches, and had walked with a limp for a few months. She stated that it had been difficult to make new friends because she had only been at school for one term at the time of her operation, when friendships had still been forming. She had been unable to go out to play and had had to choose one pupil to stay indoors with her. The person whom she had chosen had not always wanted to do so. The Claimant's evidence was that her inability to run around the playground with her classmates had resulted in some isolation.
Surgical removal of the plate and screws took place on 13 February 2006. The Claimant told me that, following that surgery, she had been able to join in more with her school friends but had always been conscious that her left leg was weaker ? it would tire and feel achy at an earlier stage than would her right leg, excluding her from undertaking some activities. She said that she had also experienced difficulty sitting on the carpet in the early years of primary school, because she had had difficulty crossing her legs.
Upon clinical examination in April 2006, seven weeks after that procedure, the Claimant's Specialty Registrar recorded, 'She's not complaining of any pain or tenderness in the left hip joint and she is walking and running normally with no pain or discomfort. Clinically, she has full range of movement in the hip joint, which is painless.' Under cross-examination, the Claimant herself described that operation as having been 'probably a success' and agreed that her left hip had been 'more or less normal'. Upon follow-up, in October 2006, the Registrar noted that, 'Today, she can walk normally, jump normally, squat. She has an excellent range of motion. She is very happy with the results of the operation. We don't need to see her again for another six months.'
2007 to 2011
A further review took place in April 2007, at which the following record was made: 'Reviewing again, doing very well. She is walking normally, without a limp. She is playing sports in PE, she can run, jump, squat and do pretty much everything that other girls do? she has a pretty full pain-free range of movement in the left hip joint and the x-rays show that the osteotomy site has healed well.' The Claimant was discharged from paediatric physiotherapy on 7 April 2008, its being recorded that no further physiotherapy was then indicated. On review by Mr Amini, Consultant Orthopaedic Surgeon, on 23 April 2008, approaching five years after her femoral osteotomy, she was recorded to have been running around and taking part in normal activities at school, albeit complaining of some tiredness in her left leg after extensive exercise, which it was said would improve as she grew and developed.
On 13 May 2009, the Claimant was reviewed and again referred to GOSH for a further opinion, following loss of movement in her left hip and an inability to sit cross-legged on the floor. An x-ray revealed a deformed femoral head, on the medial side. Further X-rays, in July of that year, indicated past avascular necrosis. It was said that no further intervention was indicated at that time and the Claimant was encouraged to continue undertaking all activities within the limits set by her discomfort, with swimming recommended. On 27 July 2009, she was reviewed by Mr Bradish, Consultant Orthopaedic Surgeon, who, in a letter to her General Practitioner, recorded that she had been noted to have a decreased range of movement of her left hip and that she experienced intermittent pain, but remained fully active, walking with a very satisfactory gait and without any significant leg length discrepancy. Mr Bradish noted that there was no indication for any further intervention at that stage, that the situation had been explained to her parents, and that, ultimately, she might require a varus de-rotation osteotomy, 'however, at the moment she should just be encouraged to continue undertaking all activities within the limits set by her discomfort. I have recommended swimming. For review in eighteen months?' The Claimant's evidence was that, during this period, she continued to experience increasing discomfort in her hip following activity, and more limited range of movement, both of which progressed slowly over the next few years.
On 24 January 2011, the Claimant was again reviewed by Mr Bradish, who recorded that he had first encountered her some 18 months earlier, when she had been progressing very satisfactorily, both clinically and radiologically, and that there had been no deterioration in the interim. It was noted that the Claimant experienced occasional left hip discomfort which was not limiting her activities; that she had taken up hip-hop dancing; and that the X-rays showed that her left hip remained well contained. In her witness statement, the Claimant stated that she had only tried hip-hop dancing lessons for a few weeks but had stopped going because she had been unable to do the dance moves owing to limited movement in her hip. In cross-examination, she said that she had always wanted to join her friends hip-hop dancing and had done her best, but that it was ' not in [her] cards to be sporty' and that she had only attended one hip-hop dance class. Subsequently, throughout her school years, she had tried to attend different clubs involving physical activity but had lacked the flexibility of her classmates. She had found her inability to participate to have been a bit isolating.
2013 to 2015
The Claimant also reported having a disparity in leg length which meant that she had 'always had a waddle', but that it had not caused her pain. In March 2013, Mr Bradish recorded, 'I saw this almost 13-year-old girl with her parents today? Subsequently, she has progressed satisfactorily. She is aware of intermittent clicking in her left hip and some stiffness when she first gets going, but is otherwise managing satisfactorily? Clinically, she is approximately 1cm to 1.5cm short, left side, but retains a very satisfactory range of movement. X-rays previously show some deformity to the femoral head with undergrowth medially. To be provided with a 1cm internal heel raise.' Mr Bradish was of the view that further surgery would not influence the longevity of the Claimant's hip and that she stood an increased risk of premature osteoarthritis and requirement for a THR. In addition to the symptoms recorded by Mr. Bradish, the Claimant's evidence was that her knee used to pop out if she manoeuvred herself to pick something up from the floor, and that she would then click it back into place. She said that she had been unable fully to participate in PE and that, on Sports Day, she had been allowed to take part in the hundred-metre race but had been much slower than anyone else as she had been unable to run. Everyone had cheered when she had finally crossed the finish line.
In May 2013, following worsening hip pain, the Claimant was referred for physiotherapy. Under cross-examination, she agreed with counsel's proposition that, over the following years, there had been a slow, gentle increase in her symptoms. In her witness statement, she described an increase in pain over the period 2013 to 2016, triggered by less activity.
In December 2013, the Claimant's General Practitioner referred her to Child and Adolescent Mental Health Services ('CAMHS'), which passed that referral to its Tier 2 team. On 6 February 2014, the Claimant's parents attended an appointment to discuss her situation and how that service might be able to help her. On 10 April 2014, the CAMHS practitioner referred the Claimant to Tier 3, following an assessment of her needs. The Claimant did not attend her appointment on 22 July 2014, and a letter (dated 4 August 2014) noted that she was 'unsure about taking up appointments here'.
On 29 July 2014, Dr Handysides, Consultant Child and Adolescent Psychiatrist, had meetings with the Claimant, together with her parents, and also on her own, following a referral arising from concern that she might be suffering from depression and concern about ongoing risks. Dr Handysides noted that the Claimant's mother had become concerned having noticed marks on the Claimant's arms and had realised that the Claimant had hurt herself in September 2013. She had then noted further marks towards the end of that year. It was recorded that the Claimant's parents had described her as always having been sensitive and having taken on a lot of responsibility for her friend's worries more recently. They had realised that she had been feeling very sad and finding it difficult to manage her feelings and that:
'They all felt that things had been a little better recently. They also felt that other stresses had been affecting the family including financial worries and that these issues are now resolving. Daisy spoke about how she worries about a great deal of things e.g. what people think about her. For example, this can lead to worrying about eating if others are not eating as they might be thinking negatively about her. She also worries a lot about her friends. She had a friend who tried to kill herself several times and this has led to Daisy often asking her friends how they are and feeling that if she is not able to help them, she will feel guilty and responsible. This leads to her feeling very anxious if her friends can't contact her, e.g. at night if she doesn't have her phone. Her friend has received help and support and is now much better. However, Daisy continues to feel anxious and responsible in case her friends need her. Daisy said that she is no longer harming herself as her mother checks. She was clear that she did not have suicidal thoughts? Over the past few weeks her mood has been a little better. She continues to find it hard to settle to sleep.? However, Daisy continues to have anxious thoughts when her friends can't contact her. She describes finding it hard to confide in her parents feeling guilty that they will then worry about her. Daisy is not getting enough sleep and does often feel tired and lacking in concentration and motivation at school. However, she continues to do well at school and achieve good grades.'
Dr Handysides recorded the problem with the Claimant's left hip, noting that her parents had described her as having been very brave and having suffered a considerable amount of pain. It was recorded that she still experienced some pain and stiffness, especially if she walked too far ? 'Daisy said that this affects her quite a lot and said "it's the main thing about me". She described feeling frustrated with the difficulty and acknowledged that this can affect her emotions and makes her feel different to her peers.' Dr Handysides also recorded that the Claimant had always had good reports and achieved good grades at school, and that she enjoyed reading and music and having good friendships. Her summary and formulation were that the Claimant was a 14-year-old girl, who had felt increasingly low in mood, with difficulties in managing feelings of worry and stress resulting in self-harming behaviour. Possible contributing factors were said to include worrying about, and taking responsibility for, a friend's difficulties; sensitivity to how others might view her; low self-confidence generally; and past, and to some extent present, medical issues with her leg, also affecting her emotions and self-esteem. In addition, it was said the Claimant found it hard to confide in people, including her parents, and had acknowledged that that feeling could build up and become overwhelming. It was said that she was showing symptoms of moderate depression, which had improved recently, and that she had denied ongoing self-harm, or suicidal thoughts. She was noted to be ambivalent about receiving therapeutic help and, generally, about accepting support from others, including her parents. Dr Handysides considered that the Claimant might benefit from some psychological therapy to help her further to understand and manage stress and anxiety, which would lead to further improvement in her mood. She thought that it might be helpful to arrange individual, and some family, sessions, with a view to improving communication between the Claimant and her parents and to ensuring that she would be able to access their support, when needed. Further sessions had been offered and another appointment planned for 22 July 2014. It was said that the Claimant would think about that further and let Dr Handysides know if she wished to take up that appointment. In the event, she did not.
The Claimant's own account, in evidence, was that, during 2013 and 2014, she had struggled emotionally, asking herself why there was something wrong with her and feeling upset, very emotional and fearful after each appointment at GOSH, often sitting on the steps outside the hospital in tears. She said that it had been difficult to hear from the doctors that there had been something wrong with her hip, that she would need an operation in the future, and that she would experience increased pain. Her lack of confidence in her body had made her unhappy and she described having gone into her own shell. She had engaged in some self-harming behaviour, in part, she acknowledged, under some peer-influence. She and her friend would talk about how life was difficult for each of them. It had become competitive and her friend had said that she wanted to die. Those conversations had made the Claimant focus on the negative parts of her own life, which she had found overwhelming, and it had been then that she had started to self-harm. She had been referred to CAMHS, attending two appointments but concluding that they could not provide her with the help which she needed, having considered her not to be at risk. In these proceedings, when assessed by Dr Gibbons (the Claimant's psychiatric expert), she said that she had self-harmed until the age of 18, though neither the Claimant nor her mother made any reference to that behaviour in their respective witness statements.
The Defendant's psychiatric expert, Dr Denman, was informed that: (a) the Claimant had started self-harming when quite young; (b) at that time, she had been very influenced by someone at school; and (c) her behaviour had improved but had not completely gone away, when that influence had no longer been present. No further referral to CAMHS, or to any other mental health service, had been made at any time. Within a record made by the Community Pain Management Service, on 16 December 2021, was noted, 'get a lot of anxiety; generally a worrier; reports some issues with mental health when was at school, grown up and feels fine now?issues with self-harm as a child ? grown up of it?' (sic)
On 15 September 2014, the Registrar to Mr Bradish recorded, 'I saw Daisy in the clinic with her mum and dad today. She is doing fairly well. She can walk for about a mile or so, but she does tend to get groin pain afterwards for about a day. She does not get any clicking or locking, but she says it feels like it needs to click.' He noted that the Claimant walked with a normal gait; that he suspected that she was developing femoral acetabular impingement; but that, as she had been doing fairly well, things should be left as they were at that time. Were her symptoms to worsen, 'it might be worth seeing a young adult hip surgeon'. In cross-examination, the Claimant agreed with counsel's characterisation that, at this stage (age 14), things were beginning gently to deteriorate but that she had been 'doing fine' and it was 'sort of watch and wait'.
On 14 September 2015, the Claimant was reviewed by Mr Sabah, Orthopaedic Registrar. He noted that she was not limited by her hip, but did occasionally get pain after more strenuous activities. On examination, she was again found to be walking with normal gait. It was said that, similar to before, all movements of the hip were slightly reduced on the left side compared with the right and that she had no fixed flexion deformity. Mr. Sabah noted, 'I discussed the case with Mr Spence and explained to her and her family that she does have some signs of femoroacetabular impingement. However, given that she has excellent function at the moment, we will keep her under surveillance and review her again in one year. Should she become more symptomatic then referral to a young adult hip surgeon would be appropriate.'
2016 to 2018
The Claimant, by now attending college, studying for GCSEs and working part-time as a waitress at Nando's, was next reviewed on 12 September 2016, by Mr Dala-Ali, Orthopaedic Registrar. He noted that she continued to progress well, but complained of occasional deep pain around her left hip after long walks. It was said that she had no restriction in her activity but did not undergo (sic) many sports. As before, clinical examination indicated a normal gait. The Claimant had no tenderness on palpation of the hip joint and a good range of movement, but pain was said to be exacerbated by the impingement test. Mr. Dala-Ali observed that radiographs indicated a slightly dysplastic femoral head, with flattening, which had not progressed over the last couple of years. He stated his belief that the Claimant would benefit from a course of physiotherapy to help with her femoral acetabular impingement and asked her General Practitioner to refer her to a local unit. Mr Dala-Ali noted that he had explained to the Claimant and her family that, were symptoms to become more problematic, she might benefit from referral to an adolescent hip surgeon, and recorded that the Claimant would be reviewed in clinic in one year's time, a plan with which she and her family were said to be happy.
The Claimant's evidence was that, by 2016, she had a dull intermittent pain in her left hip and surrounding muscles after trying to stand and walk for shorter periods of time. Whilst working as a waitress, she had had to keep sitting down to rest after a couple of hours, partway through her shift, in order to ease the pain, which she had tried to push through in order that she could earn some money.
On 19 September 2017, owing to pain in her left hip, the Claimant, by now aged 17, was referred to the Royal National Orthopaedic Hospital ('RNOH'), for further management. The referral letter recorded that she was, '? now notic[ing] a pain arising from her left hip after two hours of activity from which she gets some relief by attempting to click her left hip into external rotation and abduction.' Medical records in November 2017 recorded that the Claimant had reached skeletal maturity. It was observed that she had ' had a normal school and college life, although for the past year has started to notice mechanical symptoms with clicking and pain. She only takes simple analgesia when required. However, she has had to modify her activities. '
In evidence, the Claimant agreed that things had started to get much more difficult for her between the latter part of 2016 and the latter part of 2017. On 19 February 2018, it was noted that a recent MRI scan had revealed her hip to be in the early stages of mechanical failure, and examination under anaesthetic was recommended. In the Claimant's words, by this time the pain in her hip would often take her breath away and her ankles were also swollen, at times. When she went out with her friends, they would pull a chair onto the dance floor so that she could be seated whilst they danced around her. Following an arthrogram under anaesthesia and steroid injection in 2018 (which the Claimant told me did not ease her pain) on 5 July 2018 the Claimant underwent a peri-acetabular osteotomy, combined with a further pelvic osteotomy, with the aims of prolonging the life of her hip and reducing pain. She was discharged from hospital eight days later, having encountered difficulty standing, walking and participating in physiotherapy sessions which had prolonged her stay by a week. Dihydrocodeine had been prescribed as pain relief medication. The Claimant's evidence was that, once home from hospital, she would shower whilst sitting on a garden chair and had learnt to move up the stairs using crutches. Her father had raised her bed and the sofa so that she could use them more easily. She had needed assistance with washing her hair and body; getting dressed; fetching and carrying; and getting food and drinks. Initially, she had been non-weight-bearing and had used a wheelchair. She had been dependent upon crutches for approximately two months. In September 2018, she had been advised to continue using one crutch because she had lacked sufficient muscle to support her hip.
During that same month ? two months into the six-month recovery period ? determined not to let the difficulties with her hip disrupt her studies, the Claimant had commenced a sandwich degree course in Fashion Design and Technology, at Manchester Metropolitan University. Her accommodation had been located just across the road from her classes, such that she had been able to walk to them, using the crutch. She described her experience as a first-year student as having been different from that of most students. She had not socialised as much and had been reluctant to go out as she had not known anybody. Unlike the position at home, she had not had friends on whom she could rely for help and who understood the limitations of her hip. With effect from November 2018, she had transferred her part-time job at Nando's to a branch in Manchester, to which she had been obliged to travel by Uber, as it would otherwise have been a 15-minute walk. Initially, she had only been able to work sitting at the till, but had slowly built up her stamina and strength following her post-operative recovery. In cross-examination, the Claimant agreed that it would be fair to say that, in her early years at university, she had experienced varying degrees of pain and had paced her activities to work around it. People had also made changes to her environment.
The Claimant told me that she had stopped using crutches in December 2018, but had continued to experience pain if she did too much and would often be limping at the end of her shift at Nando's.
2019 to 2021
In January 2019, following a delay born of her move to Manchester, the Claimant commenced physiotherapy. From March 2019, she had a personal learning plan at university which afforded some flexibility and allowed her to take rest breaks. She also had a fire evacuation plan owing to her limited mobility. The Claimant had been taking Dihydrocodeine regularly, whenever she had been in pain, until June 2019, subsequently discovering that she had been taking too many tablets and experiencing difficulty in stopping.
On 20 June 2019, the metal implants in the Claimant's left hip were removed, following which, on the Claimant's evidence, she had been in less pain and things had become a lot easier. On discharge from hospital, her pain relief medication had been changed to Paracetamol and Ibuprofen. She had instructed solicitors in August of that year.
The Claimant's evidence was that she had been in less pain during her second year at university and had, for a while, used a suitcase to transfer items to and from classes so that she would not have to carry anything. In December 2019, she was discharged from follow-up, with a recommendation that, were she to experience further difficulty, she be referred to the adult clinic. The Claimant said that she had been hopeful that her reconstruction surgery would be successful for many years.
In May 2020, by reason of the Pandemic, the Claimant moved back to her parents' home, where she remained until September 2021, also transferring her employment to a branch of Nando's in that area. The Pandemic disrupted her third year at university, which commenced in September 2020, and ought to have been a sandwich year containing a work placement. Having obtained a highly competitive internship with Paul Smith, which, like many others, had been 'scuppered by COVID', she had effectively taken a year out, living in her hometown with her sister at that time. She had undertaken a shorter, four-week, placement elsewhere, but described the working environment as having been very uncomfortable, owing to her employer's seemingly negative view of people from Essex.
In June 2021, the Claimant informed her General Practitioner that she was experiencing painful clicking of her hip, which was affecting her ability to sleep; walk; and work as a waitress. She was signed off work and referred to RNOH. On 28 June 2021 she attended the Accident and Emergency Department, owing to the severity of the pain in her hip. Her evidence was that she had not known what to do and had needed assistance with pain relief. She had been advised to try Co-Codamol and, by this stage, had started mobilising with a crutch when the pain had been bad.
On 30 June 2021, these proceedings were issued.
On 9 July 2021, the Claimant's GP noted that she was experiencing a lot of pain; intermittent pins and needles; and numbness. The Claimant had been concerned about taking Codeine again, so her GP had prescribed Naproxen, which had not really helped, and her pain had become progressively worse. X-rays indicated arthritic changes to her left hip, with early secondary degenerative change. On 21 July 2021, the Claimant's GP recorded that the Claimant was complaining of severe pain and an uncomfortable feeling of grinding/cracking. Dihydrocodeine was prescribed, which the Claimant had been willing to take given the increase in pain. The Claimant's evidence was that she had been struggling with daily activities and had used an extendable arm to assist with dressing her lower body. She had struggled to get herself ready each morning and it had been painful to do so. Following the lifting of the lockdown rules, the Claimant had been able to go out socially, whilst relying on crutches. Sitting at a table in a bar had made things easier for her, as she had not been able to stand for any length of time. The Claimant told me that she had been obliged to leave her job at Nando's at the end of August 2021, when her legs had 'stopped'. She had no longer been able to manage to sit on the stool for the length of time required to work at the till ? the weight of her dangling legs had caused her too much pain.
In September 2021, the Claimant had returned for her fourth year at university. On her first day, being 15 September 2021, she presented at the Accident and Emergency Department of Manchester University Hospital, having struggled to mobilise and experienced increasing and unbearable pain in her left hip. She had been given pain relief and told to await her then forthcoming orthopaedic appointment at RNOH. On 12 October 2021, she attended that appointment, of which the Consultant's record reads, 'Daisy has reported pain in the left hip, which is back with a vengeance, for the last six to eight months so much so that she is unable to mobilise full weightbearing and is currently on crutches, this pain has also led her to leave her job. She is currently at University at Manchester and essentially being wheelchair bound most of the time. The pain has restricted her walking distance, wakes her up at night and has difficulty in activities of daily living? I have organised an MRI scan to evaluate this further? I have also stressed the importance of building the strength of the core muscles around the hip and the abductors. ' (sic). By this stage, the Claimant had been 21 years old. Her evidence was that, with the increase in pain had come increased fatigue, and that she had also developed aching and discomfort in her back, when sitting in the same position for too long. She would rely on her friends at university to push her in a wheelchair and would use taxis when unable to manage the 15-minute walk to her classes. As she had become used to taking each type of pain relief medication, it had become less effective and the pain had become worse. She had been taking an increasing number of painkillers.
Proceedings were served in October 2021.
In approximately December 2021, the Claimant attended an online pain clinic course to assist with pain management. A change to her medication had been suggested, however it had been difficult for her to attend a functional assessment because she had been studying in Manchester and the service had been based in Essex. Whilst helpful, the online options had not been as useful as she had hoped would be the case. She had experienced a dull, deep, persistent ache in her hip bone and groin, and a burning pain whenever her hip had become more inflamed. The pain had progressively worsened and she had been reliant on a crutch every day, sometimes using two crutches rather than one. As her hip had deteriorated, she had been using two crutches every day and had then started using a wheelchair for longer distances. With the increasing pain had come fatigue, which the Claimant considered to have affected her achievement during her fourth year at university. On many occasions, she had fallen asleep in the fashion studio, owing to that fatigue and, possibly, her medication. She had developed an ache and discomfort in the centre of her back, which would, on occasion, seize up when she had been seated in the same position for too long. She would click her spine to provide temporary relief. She had also experienced a dull ache in her shoulder joints and through her arms, with intermittent cramping pain, whilst using crutches. She had relied on her housemates to push her in the wheelchair and would often go to classes late whilst waiting for pain relief medication to take effect, or to enable her to sleep for longer, if pain had kept her awake. She would order an Uber because she had been unable to manage the 15-minute walk. She had had her own sewing machine within her student flat, enabling her to work at home sometimes. The University Disability Service had provided a computer chair next to a desk so that she would not have to dangle her legs from a tall stool. She had also had an allocated sewing machine near the doorway of the garment rooms, meaning that she would not have to manoeuvre between tables to find an available machine. Friends had helped her fetching and carrying items.
2022 to 2023
An MRI scan in February 2022 indicated moderate-to-severe-degree degenerative changes in the Claimant's left hip, beyond those to be expected in a person of her age. On 26 April 2022, the consensus within a multi-disciplinary panel was that there were significant degenerative changes in her hip joint and that the best way to get rid of symptoms would be to consider THR.
During her fourth year at university, the Claimant told me, her friends had been looking forward and applying for jobs whereas she had been struggling in the present, trying to complete her degree whilst in pain. She had postponed her applications because she had been awaiting the outcome of her surgery and had found the uncertainty over her future emotionally draining. She had attended some counselling sessions arranged through the university.
In September 2022, having stayed in Manchester for as long as possible following the conclusion of her degree course, and having attained an upper second-class degree, the Claimant moved back to her parents' house, in which the living room had been converted into a bedroom, owing to her mobility difficulties. That same month, Mr Donaldson, Consultant Orthopaedic Surgeon and Clinical Director, recorded that the Claimant was suffering with ongoing groin burn, which was worse with activity. He noted that she took Paracetamol, Ibuprofen, and Dihydrocodeine, and experienced pain at night. Her walking distance was recorded to be 10 to 15 minutes ? whilst she could push through that, she would feel it the next day ? and that she had walked into the clinic on crutches. Mr Donaldson recorded, 'Daisy is aware that the only reliable surgical solution would be a complex primary left total hip replacement. She continues to struggle with pain and has tried all the non-surgical management options.' He noted certain associated risks of replacement; future loosening and wear were said to be 'particularly relevant considering Daisy's young age of 22.' The Claimant's evidence was that she would have stayed in Manchester longer had she been able to work and not required surgery. She considers that the treatment to her hip has prevented her from independent living, whether by staying in Manchester with friends or moving to another city for a graduate role. She said that her university friends had commenced internships and gained employment with companies such as Next and H&M. Her ambition had been to go on to an exciting new life like theirs, instead of which she had had to move home and had been unable to start her career.
On 25 November 2022, the Claimant underwent an uncemented left total hip replacement at RNOH, and was discharged two days later. She described the operation as having been straightforward and reported having experienced immediate improvement in the arthritic pain in her hip. Initially, she had felt as though her left leg had been slightly longer. Within six weeks, she had been mobilising without crutches. After the operation, she would shower whilst sitting on a garden chair and would be accompanied when moving up and downstairs. Initially, she had had difficulty getting up and sitting down and had required assistance with dressing, fetching and carrying, cooking, and cleaning.
The Claimant told me that her post-operative pain had not been as bad as the pain which she had experienced when on painkillers prior to surgery. Nevertheless, she had continued to take Dihydrocodeine until December 2022, when she had been unable to obtain a further prescription over the Christmas period. She had experienced withdrawal symptoms in the form of an upset stomach, migraine headaches, and sweating. Her evidence was that, having taken strong analgesia over a period of a few years, she had become completely reliant on, and considered herself to have abused, it. In December 2022, she had weaned herself off that medication.
On 11 January 2023, some six weeks after her surgery, the Claimant was reviewed in an outpatient clinic. Her medical records note that she was progressing very well indeed; was independently mobile; did not require the use of her crutches; had extended her flat-walking distance to walking continuously for over 20 minutes; had reported some discomfort at times and struggled to sleep on her left side, but that her arthritic pain had completely disappeared. A further review was to take place six months later, with physiotherapy in the meantime.
The Claimant's evidence was that, since the THR, her left hip had been generally pain-free but still weaker and that it ached following activity, approximately once a week. She considered that to be improving as she built up the strength in the muscles surrounding her hip and she tried to go swimming twice a week to help with that. She spoke of some numbness in her groin, when sitting in the same position for too long, and a slight ache when crouching down. She experienced some pain if flexing her hip or if immobile for a while. She told me that she had never been able to reach her left foot and had needed help to put on her left sock and shoe. She was still unable to reach her left foot normally but could now bring it up behind her when lying down so that she could put her socks on. She continued to use an extended shoehorn to put on her shoes. The Claimant described having backache on most days. She continued to experience shoulder pain which had started with her use of crutches. She had continued her practice of sleeping predominantly on her right side with a pillow between her legs so that they would be level and she would avoid discomfort. She had five long scars around her hip, of which she was conscious when wearing a bikini, or in a relationship. As a younger person, she had felt more insecure and had refused to let her first boyfriend see her scars. Now, she said, she tried not to let them affect the way in which she lived her life. The Claimant said that she had also been conscious of her left profile ? her left hip looking different from her right. There were two moderate-sized bumps on her left side which were obvious when wearing tight clothes, albeit that they had improved since her THR.
On 20 February 2023, judgment was entered in these proceedings, with damages to be assessed.
Following the THR, the Claimant attended physiotherapy sessions. A physiotherapy record dated 9 March 2023 noted, 'Subjective: Has not been doing ex as often, but has been walking more. Feels like the muscles are coming back just not as flexible. Went to Amsterdam for a break of 3 days and did 20k steps every day. Felt good afterwards and no pain. ' In evidence, the Claimant told me, ' Yes, well, I think I was so eager to get going. I went one hundred per cent at the first hurdle. ? I think in comparison to before the hip replacement, because I was using the wheelchair so much, to be walking around a city was, like, such a different page.' She noted, however, that her walking in Amsterdam had been an achievement, and that, in general, she had not been walking twenty thousand steps every day. The physiotherapy record further noted that the Claimant had been swimming five or six times; feeling well, though a bit stiff; and that she had been advised about the importance of regular exercise. The Claimant told me that she was keen to continue to build up the strength and stability of her hip in the hope that it would assist the residual achiness in her hip, shoulders and back, and so that the replacement would last longer.
The Claimant was reviewed at RNOH on 12 July 2023. It was noted that, '?She has recovered very well after her hip replacement eight months ago and feels that she is slowly improving with her muscle strength. She does continue to get some twinges of discomfort around the left hip region which given the number of years of problems post her DDH and multiple surgeries, is not particularly surprising. I have explained that it can easily take her one or two years to rehabilitate her muscle strength after this surgery. She feels that her leg lengths are equal and is quite happy with her current position, and is starting to return to work and is building up her activity levels'.
At around the same time, the Claimant engaged with a number of the expert witnesses in these proceedings. In July 2023, she told Ms Benfield that her mobility and agility were the best that they had ever been and that she was experiencing no ongoing pain in her left hip and leg. She said that her left hip would ache at times, after prolonged standing and walking, explaining that she did not see that as pain; rather as more of a discomfort. She also said that, following her THR, she felt well and psychologically much stronger than she had felt in her adult lifetime, acknowledging that there was a direct link between pain, her left hip function, and her mood.
On examination the following month, Mr Ashworth recorded the Claimant's description of her struggle to come to terms with the surgery which she had undergone and with the potential for further surgery in the future: 'She perceives these to be lifelong issues. At present, given that her recovery from the recent total hip replacement surgery is good, she advised me that her psychological condition is near normal'. Mr Ashworth also recorded that the Claimant had informed him that she was having no restrictions at work but had been advised to avoid heavy lifting. She was, at that stage, undertaking two six-hour shifts per week at Nando's, which were not causing her any issues. There were no restrictions on her social life, or self-care.
2024 to trial
The Claimant told me that she often felt low, lacking in confidence and struggling to find motivation. She had felt anxious about going out and participating fully in life. Somewhere between June and September 2024, she had been to see her GP, having been seeing a counsellor for a short period of time as a result of her lack of motivation born of a struggle to find work. The GP had prescribed Sertraline, but the Claimant said that she had not wanted to take it because she had also been referred for cognitive behavioural therapy and had not wanted to rely upon medication. She told me, 'I think I do feel very strongly that I've always had something to look forward to ? going to university, surgery, a hip replacement, physiotherapy ? and then, earlier this year, the physiotherapy that I had been assigned had to come to an end and I found I didn't have much to look forward to. I was just hoping that a job would answer me. So, my mental health declined quite a bit and ?everything I'd been putting to the back of my mind suddenly had nothing to put in front of it, if that's a good way to explain.' She also said that her jobs had given her a big confidence boost, which had been very helpful to her.
The Claimant stated that, notwithstanding her degree classification, she would like to improve her portfolio, which was not as good as it would have been had she not been studying whilst in pain. She intended to apply for an internship but currently lacked the emotional strength to do so and would like to have the recommended psychological treatment to assist in that respect. Her ambition was to be a stylist or designer for an ethical, high-value high street brand which had a good reputation, hoping to design an item which had impact and high consumer demand. Her hope was to obtain a graduate role, internship or fixed term placement, through which to gain two to three years of experience which would allow her to obtain a permanent role. That would usually involve moving to different cities for the various companies. At this stage, she was unsure of the area of the industry within which she would like to work permanently and anticipated exploring different options whilst gaining initial experience. She enjoyed the more creative aspects, such as designing patterns and garment technology and thought it likely that she would work within those roles. She told me that her delayed diagnosis, symptoms and the requisite past and future treatment had had, and would have, repercussions for her career and earning potential, including at Nando's during her degree course.
The Claimant gave evidence of certain ongoing mobility issues, for example requiring regular podiatrist appointments for nail care, because she could not touch her toes. She also gave evidence regarding the psychological impact of her hip difficulties, including the impact on her life at secondary school, from the age of 13. She said that she had struggled emotionally, asking herself why there was something wrong with her and feeling upset, very emotional and fearful after each appointment at GOSH, often sitting on the steps outside the hospital in tears. She said that it had been difficult to hear from the doctors that there had been something wrong with her hip, that she would need an operation in the future, and that she would experience increased pain. Her lack of confidence in her body had made her unhappy and she described having gone into her own shell.
At university, she told me, she had found the uncertainty regarding her future to be emotionally draining. She could often feel low and lacking in confidence and motivation, feeling that her university friends had been able to move on with their lives, whilst she had not. She continued to work at Nando's rather than in her chosen career, observing that that is not where she wanted to be in life. At the date of trial, the Claimant was working two or three days a week, on shifts of between four and six hours. Her evidence was that she could not do more than that because she could not stand for the 10 or 12 hours which some of her colleagues worked. She said that she now tended to have a break between working days, although would sometimes work on consecutive days if working four-hour shifts. Even then, she would experience more pain in her legs, so would try not to push herself too hard, which her employer understood. When working longer shifts, she would need to take a day off owing to pain and stiffness in her hips.
The Claimant gave evidence of the care which she had required throughout her life. Prior to moving to university, she had lived at home with her parents whose help she had needed during periods of pain when her hip had deteriorated before undergoing each surgery. That would involve assisting her with mobilising, fetching and carrying, preparing snacks and drinks, and tidying her room. During post-operative periods, she had also required help with personal care, washing and dressing. When limited prior to her THR, she had been obliged to rely on friends at university as well as on her family. Her friends had carried her bags for her and had helped her to get to, from and around university. They had fetched, carried, run errands, and got lunch for her every day. The Claimant said that she had also incurred the cost of food deliveries for which she would otherwise have shopped, like other students. Her friends would bring the delivery into their flat and would sometimes help her put the food items away. At the beginning of term, her parents would often do a large shop for her so that she would not have to purchase larger items. She had relied on friends to help her cook her meals, and her mother would also batch cook so that she could heat meals in the microwave. Albeit that she had tried to help with housework, she had only been capable of wiping surfaces and would push herself to empty the dishwasher on occasions. She had been able to do her own laundry whilst sitting down and would sit on her bed, which had been raised with two mattresses, in order to hang it up. She had relied on friends and family for household chores such as vacuuming, tidying and changing her bedsheets, and continued to have help with heavier tasks.
The Claimant's evidence was that she had attended many hospital appointments for monitoring and treatment and that her family had stayed with, or visited, her at times when she had been an inpatient. She had relied on family for lifts to and from work and social events because she had been unable to travel independently, owing to the pain in her hip, and had not been able to walk short distances or use buses. She had been obliged to rely on Uber taxis at university for distances which, but for her symptoms and limited mobility, she would have been able to walk. She had begun learning to drive a manual car but had been obliged to change to an automatic vehicle so that she could avoid using her left leg. As a result, she had incurred the cost of ten additional driving lessons, with which she had been unable to continue owing to the pain which she had been experiencing. Following her THR, she intended to continue with lessons and would incur an additional theory test fee as her original test had expired. Her preference was to continue to drive in an automatic car in order that she would not be reliant on her left leg and would still be able to drive when her left hip deteriorated prior to the further revision operations which she would require.
The Claimant's evidence was that, since recovering from her THR, she had been learning to have more confidence in her mobility; that she was more able than had previously been the case, but that it was taking time to get used to being able to participate in activities, without experiencing subsequent consequential hip pain. She observed that 2023 had been the first Summer which she had been able to enjoy as an adult when not recovering from surgery or experiencing deterioration, and that she had always been determined to live life as fully as her hip would allow. Since its replacement, she had been able to participate in activities which she had not previously been able to enjoy, such as joining her friends camping at a festival. The Claimant told me that she would experience some twinges, or mild cramping, in her right hip, which she attributed to weight-bearing habits which she had adopted when using crutches. Her evidence was that she would experience those symptoms in the lower groin area, which were provoked by standing or sitting for a lengthy period, and that she would experience some numbness when lying in a certain position for an extended period. She said that she tried not to let it limit her anymore. She was conscious of not overusing her left hip, with a view to prolonging the longevity of the replacement.
The Claimant acknowledged that she was something of a worrier, and that she was concerned about whether the positive outcome which she had experienced to date would last. She was aware that each revision surgery would last for a shorter period and was concerned that, when she was older, it would not be possible to revise her hip further and that she would be extremely limited and perhaps housebound. She stated that she would like her living conditions to accommodate the periods of time in the future during which her left hip would deteriorate, so that she could continue to live as comfortably and as fully as possible when experiencing greater pain and difficulty with her mobility. Nevertheless, she acknowledged that she was incredibly determined. From a time a few months after her hip replacement, when she had started to feel as if she could function better, she had made many online job applications in the fashion and design industry. Approximately three weeks prior to trial, she had begun working, on two consecutive days a week, from 09:30 to 16:30, for a small, family-run vintage clothing company checking high-end items for quality and making minor adjustments to enable them to be sold. It might be that additional days would become available, though that was not guaranteed. She would also promote the company on social media. When fixing clothing, she would work in a small office at the front of a warehouse. For the balance of the time, she would be standing or sitting in the warehouse. The Claimant said that she found that the cold gave her 'dilemmas', so she would wear two pairs of trousers, and put hand warmers in her pockets and a long hot water bottle on her chair. She said that her employer was very understanding and had provided her with a chair when she needed it, and a little radiator. She said that, to date, at the end of her two days at work, things had not been too bad, though she would find out more as the weather got colder, or if she were to work an extra day. The Claimant would be working there for the foreseeable future, she told me.
The Claimant is also employed as a volunteer on Saturdays, adjusting trousers. She described that role as more of a teaching experience, as her boss had been a tailor for 40 years and could sew really quickly. He had been teaching her different skills which she had not acquired at university. In that role, she mostly sat at a sewing machine using the foot pedal with her right foot, and it was not too bad. Her left leg would usually be propped up, and she would have to move it every now and again in order to be comfortable. She experienced some discomfort in her back after a while, because she was hunched over getting close to her work, so she would have to straighten herself every so often.
The Claimant told me that she had applied for certain jobs on the recommendation of her friends, who had helped her with her CV and portfolio, and with the applications themselves, but she had not received any replies. Whilst, ideally, if financially viable, she would like to move out of her parents' home and regain some independence, she thought that that might not be an option for a little while.
The Claimant's desire is to have a large family in the future ? she hoped to have four children, but worried about the effect of pregnancy on her hip and considered that she was likely to need additional help during pregnancy and when having a young family.
Natalie Lynch
Mrs Natalie Lynch is the Claimant's mother. In addition to the Claimant, she has one daughter and three step-daughters. She gave evidence of the effect of the Claimant's condition on her wider family. She stated that, before the problem with her hip had been identified, the Claimant had walked with a waddle and a limp. Mrs Lynch believed that the Claimant's hip had been painful. She gave detail regarding the Spica plaster cast which the Claimant had worn for two months, following surgery in September 2003. That cast had run from her waist to her ankle on her left leg and to her knee on her right. A splint had been fixed between her knees, to keep her legs apart, such that she had only really been able to move her feet. Initially, she had been able only to lie flat, but, at the first checkup appointment, a U-shaped section had been removed from the cast around the Claimant's stomach, so that she could sit propped up. She had been unable to sit properly with her legs extended in a fixed position, or to bend from her hips; only from her waist. Her parents had been provided with a wheelchair which had had leg supports so that she could lie semi-flat in it. They had been obliged to use cushions to reduce the depth of the car seat and support her back, and Mrs Lynch had used a double buggy without the central division when taking the Claimant and her younger sister out at the same time. It had been necessary to lift the Claimant in order to move her, and her parents had carried her up and down the stairs and to and from the bathroom and her bedroom. The Claimant had used a bed pan and had returned to wearing nappies, particularly when going out. In order that the cast be kept dry, she could not have a bath and so her parents would give her a body wash. Her hair had been washed over a borrowed portable sink into which her head had been tilted back from her wheelchair.
Mrs Lynch's evidence was that she and her husband had had to spend more time trying to engage the Claimant in activities which could be undertaken in a seated position, because she had been unable to entertain herself to the extent which she had previously done, having been unable to walk around. Mrs Lynch considered that the Claimant had missed out on normal childhood activities on a daily basis. Prior to her first operation, the Claimant had attended pre-school every day. Following some recovery time, she had been taken to nursery on two afternoons per week, which had allowed her to see her friends. The staff had accommodated her needs and had set up a high table at which she had been able to sit in her wheelchair. They had provided a range of different activities for her, but it had been difficult for the Claimant because she had been unable to choose where to be, or to mix with her friends.
Mrs Lynch's evidence was that the cast had been removed after approximately two months and that the Claimant had then mobilised with a Zimmer frame and crutches. Her left foot had been rotated outwards, and she had walked with a limp. During that time, she had had physiotherapy. The Claimant had missed her friends' birthday parties whilst recovering from her operation. Following her recovery, she had been physically able but nervous that her left leg might be knocked. At the end of pre-school, and at the beginning of primary school, she had held back and had avoided getting involved when playing with her friends.
Mrs Lynch noted that the Claimant had been in hospital for four days at the time of her operation in January 2005, which had taken place four months after she had started primary school. She had been able partially to weight-bear, using a Zimmer frame or crutches, and had been given a wheelchair to use at school. On her return to school, the pupils in her class had looked at her as a result and she had felt awkward about being different. She had not mixed and made friends as she had been reliant on teachers wheeling her from the classroom to lunch and had been unable to go out to play in the playground. She had also been conscious of her surgical wounds and worried about knocking them. The metal work had been removed from the Claimant's hip in February 2006.
Mrs Lynch said that the Claimant had not enjoyed primary school and would cry every morning. Mrs Lynch considered that she had been obliged practically to force her to go into school each day, and believed that her inability to play and develop friendships in the reception class had affected her school experience ? other children had seen her as different and had often been nervous around her, leaving the Claimant feeling quite isolated. She had not really enjoyed going to friends' houses, or birthday parties, and, whilst receiving treatment, had been unable to join in running around. She had often become upset and left parties early.
Following her operations, the Claimant had been physically more able but had always been nervous and conscious of her hip, frequently avoiding joining in with other children and missing out on activities such as bouncy castles because she had been unable to do anything which would have a high impact on her hip. She had been unable to participate in certain sports at school. Her parents had tried to teach her to swim, but she had only been able to kick one leg, her right having been stronger than her left. She had been keen to try ballet lessons but had found them difficult, remaining in the same class and making slower progress, whilst other girls would progress to the next class. She had been uncomfortable and had performed many of the steps awkwardly.
Mrs Lynch said that the Claimant had attended the hospital with her parents for checkup appointments every 12 or 18 months, before which she would always be anxious. She would be upset and down for a while after such appointments. At the age of eight, the Claimant had begun to experience a deep ache in her hip, which would flare up after walking, and her back had ached. Ms Lynch would give her Calpol and Nurofen for pain relief. The Claimant would tire following normal daily activities and would sleep more. She had been unable to sit on the floor, or to get out of the bath easily.
In July 2009, following her referral to GOSH, the Claimant had been advised to try swimming. Mrs Lynch said that she had already been going to swimming lessons on a weekly basis, but had started to go more frequently. She had not been keen, though Ms Lynch thought that it had helped her for a while. Mrs Lynch's evidence was that, between the ages of nine and 11, the pain in the Claimant's hip would flare up at times, though, with pain relief, she had been able to cope. During secondary school, her pain had progressively worsened. Mrs Lynch would collect her from school because she would be in pain after walking home. Mrs Lynch would also collect her and drop her off when she wished to go out socially, as walking any distance would trigger pain. By the age of 13, she said, the Claimant had been limping more, as she had been trying to reduce the use of her left leg. The heel raise with which she had been provided had not eased the pain and Mrs Lynch had asked the GP to refer her for physiotherapy.
Mrs Lynch told me that, during that same year, she had taken the Claimant to see the GP having discovered that she had been self-harming. Mrs Lynch had been devastated. Whilst, to some extent, the behaviour had related to a friend, the Claimant had also been emotional owing to her own physical difficulties and had often questioned why the issue with her hip had happened to her. Mrs Lynch recalled the referral which had been made to CAMHS. That service had spoken to them jointly, and to the Claimant separately, as had a different service. Ms Lynch noted the Claimant's view that each had only been interested in helping her if she were at risk of taking her life, and her decision not to attend any further sessions.
Mrs Lynch stated that, between the ages of 14 and 16, the Claimant had been in increasing discomfort. She had been given a chair to sit on during certain lessons and had been unable to walk as far without being in pain. She had started to struggle to get in and out of the back of Mrs Lynch's two-door car, for which reason, in July 2015, she had bought a four-door Ford Focus, retaining the original car (which, she told me, had not been worth anything, including by way of trade-in) for the Claimant to learn to drive. In the event, the Claimant had been unable to use the manual clutch, so her sister, Amy, had used the car instead. Mrs Lynch acknowledged that it was possible that she and her husband would have purchased a slightly larger car at that time anyway, because they had had two growing daughters, but did not think that they would have been upgrading the car for independent reasons at that point. A few years later, after the Claimant had gone to Manchester, Mrs Lynch had traded in the Ford Focus for the larger Ford Galaxy.
Mrs Lynch said that, during 2016 and 2017, whilst the Claimant had been at college, she had continued to have the low-level pain which she had always experienced and tolerated, but had had increasing flare ups and had taken pain relief to help her. She had been unable to sit in certain positions and there had been times when she had not gone out with her friends because she had been in pain. She had been working at Nando's and frequently had relied upon pain relief medication in order to get through her shifts. She would sometimes telephone Mrs Lynch, upset whilst at work, because she had been struggling to carry out the tasks required. Her employer had been supportive ? giving her rest breaks and allowing her to undertake the less active duties. If her parents had been unable to give her a lift to work, it would have been a struggle for the Claimant to have travelled by bus.
By 2018, Mrs Lynch told me, the Claimant had been taking increasing pain relief, with less effect. She had struggled to walk up and downstairs and been unable to do very much without it hurting, and suffering with pain afterwards, though she would have good days and bad days. Mrs Lynch noted that, generally, the Claimant had been strong-minded and determined to push through the pain. She would always live as fully as she could. She could become emotional at times, for which she would be unable to identify a specific reason. She had sometimes been low, and upset that she could not act spontaneously on days when her pain had been bad. She had avoided making plans because she had not known how her hip would be. It had always been in her mind that she would have to cancel any arrangements made, if she were in pain.
The Claimant had been admitted to RNOH for reconstruction surgery in July 2018, at the age of 18. Mrs Lynch said that she had been on a ward with elderly patients, including a lady who had dementia, who had screamed throughout the night. Mrs Lynch had rented a room in the hospital grounds and had been allowed into the ward after breakfast. She said that one particular nurse had had a tendency to be harsh with patients and that she (Mrs Lynch) had provided her daughter with emotional support. She had also helped to wash and dress the Claimant in hospital. The Claimant had been uncomfortable and so Ms Lynch had kept moving her pressure pillows and changing her socks.
Although the operation had been intended to defer a hip replacement for approximately 10 years, it had not been successful. Mrs Lynch stated that her daughter had continued to experience some pain, but had been determined not to defer her place at university because she had wanted to be there at the same time as her peers. Her parents had ensured that her accommodation was based across the road from the university campus. As a safety measure, they had not wanted her to live on the ground floor, and so she had struggled with the stairs. Mrs Lynch said that the Claimant had not really had any friends during her first year, but had learnt to ask her flatmates to help her. Her parents would do a bulk shop, so that she could put food in the freezer, and had purchased a barstool on which she could sit whilst preparing food.
Mrs Lynch said that, on starting university, the Claimant had felt out of place because she had been on crutches. She had not been able to go out as much and had not really been able to join in freshers' week. She had been unable to travel on the Manchester trams as many of the other students would do. Her symptoms had improved following the removal of the metalwork from her hip, in 2019, but, not long after that, she had begun to suffer with significant pain, which Mrs Lynch considered to have really affected her experience of university life. There would be times when the Claimant would have meltdowns, or when her parents would travel to see her because she could not cope. They would take food parcels so that she did not have to go shopping. Mrs Lynch said that they had done as much as they could for her and that there had been times when she had been unable to go to work. There had been one day when she had had a meltdown outside Nando's and had been on the telephone to Mrs Lynch whilst her father had been on the phone to the branch manager who had then gone to help her. Mrs Lynch and her husband had travelled to see her, to try to help her, and had done all that they could.
Mrs Lynch's evidence was that, during the Claimant's fourth year, they had had many long telephone conversations during which Mrs Lynch had provided support and encouragement, because the Claimant had been struggling with pain and mobility. She had received a lot of support from her university friends at that time. Mrs Lynch stated that there had been many times when she had wanted to go to Manchester to help her daughter. Sometimes she would just go up to see her if she were not coping well. Her evidence was that she and her husband had travelled to visit the Claimant more frequently than would have been the case had it not been for the difficulties with her hip. Mrs Lynch had visited her every six weeks or so, and sometimes at weekends. The Claimant would also come home more frequently, usually to attend hospital appointments. Her friends would help her onto the train at Manchester, and Mrs Lynch or her husband would drive from their home in Essex to Euston Station to pick her up, or Mrs Lynch would help her onto the train from Euston to Essex, using a disability buggy, and would repeat the process in reverse for her return trip. Occasionally, Mrs Lynch said, she would travel with the Claimant to Manchester and return to Essex on the same day.
Mrs Lynch described her daughter as having been determined at university and having tried not to let her difficulties stop her. She had 'powered through all the obstacles' and had graduated with an upper second-class degree. During her graduation ceremony, the Claimant had been obliged to sit separately from her friends, within a disability area, and had walked across the stage using her crutch. During the Summer of 2022, she had remained in Manchester, and, in September of that year, her friends had helped her parents move her out of their accommodation. Mrs Lynch and her husband had converted their sitting room into a downstairs bedroom, and had purchased a high bed, for the Claimant.
At the time of the Claimant's THR, Mrs Lynch had stayed in a hotel close to RNOH in order to be nearby. She said that, following the operation, the Claimant had cried, saying that she felt that she ought to be in significant pain and could not feel anything. Mrs Lynch said that her daughter still expressed surprise that she could walk without pain, albeit that she had days when she ached. In Mrs Lynch's words, 'she has lived most of her life in pain and now she is like a different person; she is happier'.
Mrs Lynch said that her daughter struggled emotionally because her symptoms and the surgery had held her back. She lacked confidence and motivation, and her parents were encouraging her to apply for positions in the industry in which she wished to work. There had also been times when the Claimant had felt anxious about going out socially, and, on some days, she would not get out of bed. She had started volunteering at the children's nursery at which Mrs Lynch worked, which had helped her.
Mrs Lynch observed that, during the periods when the Claimant's hip had deteriorated prior to surgery, and after each operation, she had needed help from Mrs Lynch and the rest of her family. She had been unable to help with chores around the house, as other older children would. At a time when the Claimant had been limited by pain prior to surgery, Mrs Lynch had looked out for her when she showered and mobilised, in case the Claimant stumbled and fell, which she would sometimes do. She and her husband had also helped with fetching and carrying; running errands; driving the Claimant to places; preparing food and drinks; laundering clothes; tidying; and cleaning. During the recovery periods which had followed each operation, they had continued to help the Claimant with such tasks, and she had also required more help to move around, such as on stairs, or in the wheelchair, and with transfers. Mrs Lynch would assist with the Claimant's personal care, such as by washing and dressing her and washing and styling her hair.
Mrs Lynch said that she and her husband had also purchased various aids and equipment for the Claimant, including a walker. A double buggy had been required when the Claimant's sister had been born because the Claimant had been unable to walk far, or to stand on a buggy board. Following the initial surgery in 2003, they had purchased walker mats to encourage the Claimant to straighten her foot. They had also purchased baskets and trays to enable her to carry items whilst supporting herself when walking. The Claimant's father had fitted a stair rail, a grab rail, and a lower shower attachment, to make it easier for the Claimant to shower when sitting down. Mrs Lynch had purchased some elbow crutches which she thought would be more comfortable as the Claimant's hands had blistered from use of the crutches provided by the National Health Service. The Claimant's parents had also purchased a wheelchair, having witnessed the pain which the Claimant had been experiencing when struggling to walk around on crutches. Prior to her hip replacement surgery, they had bought a smaller folding wheelchair which she could use when in Essex, to avoid the Claimant's need to cope with bringing her larger, more comfortable wheelchair back from Manchester when travelling alone.
Mrs Lynch's evidence was that the Claimant had been in pain for much of her life. Although she had been determined to live as normally as possible, there had been lengthy periods of time during which it had been a struggle. As she had gained confidence in the THR, she had been able to enjoy activities and events in the way in which she should always have been able to do. She had recently been able to dance with her friends and, at the age of 23, had said that it had been the first time in her life that she had felt normal.
Mrs Lynch said that she and her husband currently transported the Claimant to and from work, as she would struggle to get to the bus stop. Only recently had she been able to get up and about and to do more. Mrs Lynch noted how proud she was of her daughter and that she thought that she was doing really well. She said that the Claimant was determined not to let anything get her down, and would pull herself out of bed, but did have days where she would get home from work and just want to collapse. She would not cook dinner for herself as she would be too tired and have aches and pains. Her parents would tell her to have a hot bath and just rest. Nevertheless, Mrs Lynch said, the Claimant would not let it beat her ? she was just going to get up and go.
Mrs Lynch said that she had attended all of the Claimant's hospital appointments, each of which would typically last for around half an hour. In cross-examination, she was asked whether the hospital letters represented a good summary of the situation as it had stood at the relevant times. She said that she would agree that they did, when you saw her on those days, adding, 'I think a lot of it, at the time ? yes, she could do the movements and things when we went to the appointments, but then, living with her at home when she was trying to go to school every day, although she's got through school every day and it seemed quite easy, from pre-school there was a lot of adaptions made. So, she could go in with her wheelchair ? a member of staff would meet me from the car so that I could just wheel the wheelchair into the pre-school. When she went into reception, into primary school, she was in the wheelchair and she couldn't go out into playtime, and things like that, so she could do PE. She'd try; she wouldn't let it get her. She would try?.She's had a good day but like we've made adaptions at home with her, we've lifted up the beds and all things like that so that she could make life easier for her.' Mrs Lynch agreed that, when the Claimant had been young, it had largely been she (Mrs Lynch) who had informed the doctor how she had been getting on. Revisiting the issue in re-examination, she said, 'I think when they see her at those times? she did look like she was having a ? she was okay and she was fine, but it was the day-to-day living that she struggled with more? Sort of getting up, getting to places, daily things she struggled. It was hard to ? you just wanted to support her and do as much as we could.? Amy is flying the ladder. She's up in Nando's and Daisy's definitely been held back. She'd have gone on the internship rather than having a hip replacement. She'd be flying off with the girls.'
Linsey Lynch
Ms Linsey Lynch is the Claimant's half-sister. Between 2003 and September 2023, she had worked for Nando's, most recently as General Manager, based in Bishop's Stortford. When the Claimant had turned 16, Ms Lynch had helped her to secure a part-time job as a waitress in the Harlow branch of which she had then been the Manager. The Claimant's duties had included taking orders; working at the till; taking food to tables; cleaning tables; and helping to keep the restaurant tidy. The role could be very active and require a lot of time on one's feet. Ms Lynch said that, when her sister had first started, she had been able to manage, but that, after a few shifts, she had begun increasingly to suffer from aches and pains. She would persevere, as she had wanted to do the job well, but one could see that she was in pain. It had been in approximately 2017 that the Claimant's hip had begun to trouble her. As a result, initially she had been obliged to undertake shorter shifts ? normally of four hours rather than the eight hours which other colleagues of her age could work. In addition, she had not picked up as many extra shifts (for which there had been frequent opportunities, when someone had called in sick or had been on leave) as her colleagues had done. Ms Lynch said that they had tried to put measures in place which would help the Claimant, such as a stool at the till area so that she could sit whilst working. That could make her feel awkward, as some of the other staff members had not understood her disability. She would constantly apologise, not wanting to appear lazy, and would always try to do as much as possible, albeit that she had been limited in her mobility. Accommodation had been made whereby the Claimant had been based in a particular area of the restaurant, which would not require her to walk more than a few steps, although even that would become challenging for her when the restaurant was busy. She had not always been comfortable with the accommodations made, which had placed a spotlight on her disability. Ms Lynch said that the Claimant's limitations had precluded her from learning about the whole business, hindering her opportunities to develop, notwithstanding which she had been a highly regarded and valued employee.
When the Claimant had gone to university, she had transferred to a branch of Nando's in Manchester, though Ms Lynch thought that she had lacked the same support system whilst there and did not think that she had been able to integrate as well. She had returned to work in the Bishop's Stortford branch during 2020, over which period it had been clear to Ms Lynch that her pain and discomfort had been worsening and that she had been able to do less and less. The accommodations made had not really helped. She had been in constant pain and neither standing nor sitting had assisted her. She had therefore left Nando's for a period, returning in May 2023, after her THR, to a branch in Cheshunt at which another of her sisters had then been working, and so had been able to drive them both to and from work. Ms Lynch said that the management team at Cheshunt had described the Claimant to her as being efficient and on the ball. Ms Lynch noted that the Claimant's experience meant that she knew what she was doing and was getting on well, now being involved in additional aspects of the role. In Ms Lynch's opinion, but for the limitations caused by her hip, the Claimant would have progressed in the business and would have been likely to have been employed as a manager by now, notwithstanding her desire to work in the fashion industry. Nando's, she said, had a track record of good internal progression for about 70 per cent of its staff. Ms Lynch would start a development plan for staff once they reached the age of 18 and had worked for at least a year in all positions. Every year, Ms Lynch would promote a minimum of two to four people into supervisory roles. Her sister had started working as a waitress around two years after the Claimant had commenced work, also combining work with study. As she had been able to be trained across the entire business, she had been able to progress, achieving promotion to Supervisor, and, having recently completed the three-month development program, now working as a pro-rata manager. Ms Lynch gave evidence to the effect that a large number of staff members who had worked whilst studying had also been promoted. She said that she had worked in several branches and had opened six across the Nando's estate, also running development programs within the company and instigating various projects for young workers. She had promoted several people at the age of 18 or 19, having developed and mentored them from the age of 16 or 17. Ms Lynch said that supervisory roles at Nando's remained hourly paid, such that one did not need to await a vacancy, as long as the branch was operating within its forecasted budget. A supervisor would be assessed by an area manager, or a different general manager, and, if passing that assessment, would continue to work as a supervisor until a vacancy for the post of assistant manager arose in another branch, although it was not necessarily the case that one would have to move branches, in particular where there was a disability to be accommodated.
Georgia Randles
Georgia Randles was a contemporary of the Claimant at university. She currently works in a permanent role as a junior product designer for H&M, in its head office in Stockholm, and considers it likely that she will be there for the next few years. She and the Claimant met during their first year of university, in 2018, and studied on the same course. They did not live together but had spent a lot of time together during the first and second years of the course, in the studio and in the library. A typical day would start at around 9:00 or 10:00am and conclude at 10:00pm. Ms Randles recalled that, during their second year at university, the Claimant had been walking around a lot more without her crutches, but had had a limp. During that time, she had just been getting on with the course and taking part as much as possible in her studies and in university life. In November 2019, Ms Randles and the Claimant had joined a university trip to Amsterdam which had involved a lot of walking. She recalled that the Claimant had broken down in tears at one point as she had been so tired and her body had been so sore from all the walking. She had told Ms Randles that she just wanted to walk normally. Ms Randles said that the Claimant had always put on a brave face and had been very stoic about her symptoms, but that it had been at that point that Ms Randles had become much more aware of the impact that such activities had on her and that she needed more time to do them.
During the third year of the course ? the sandwich year, all students had tried to find work experience placements, of which there had been far fewer than would ordinarily have been the case, owing to the Pandemic. Ms Randles had been able to secure a placement as a boyswear designer, with a company in Oldham. She had stayed in contact with the Claimant via social media but could not recall much about their discussions at that time. In September 2021, during their final year at university, Ms Randles, the Claimant, and their friend Zoe Dixon had shared accommodation. Ms Randles and Ms Dixon had undertaken the viewings and had selected a flat for the Claimant's benefit which had had no stairs. Ms Randles noted that, on the first day of their final year, the Claimant had been unable to get out of bed, as she had been in so much pain, and had spent the day in the Accident and Emergency Department. She described the Claimant as having been much less mobile than had been the case during her second year. The best way for her to get to university had been by taxi, but that had been expensive. Ms Randles said that the Claimant had generally been able to get to university during the Autumn using her two crutches, and assisted by one of her friends carrying her bags, though she later bought a backpack. During the Winter and colder weather, the Claimant had been unable to use crutches and had travelled to and from university by wheelchair. Her friends would place her rucksack on the back of her chair, and she would carry her crutches. One of her friends would push the chair to and from university and the museums which they would visit.
Ms Randles described the Claimant as having been very strong and having retained some independence, such that she had been able to get herself out and about if necessary, often by ordering an Uber and taking her crutches with her. The course had required students to move around the studio a lot, to collect materials. Either the Claimant would use her crutches to do so, or her friends would help her. Sometimes, her crutches would cause her hands to blister, or her arms would tire from using them, and her friends would be happy to help. They would also help her by taking her around the campus during the day, getting her lunch, and carrying her bags for her. Ms Randles told me that the Claimant would try to help in their flat as much as possible and had been able to do jobs such as wiping down surfaces and helping with the dishwasher. Her flatmates would mop and clean the floors and take the rubbish out, as it had been necessary to carry the bin bags down a few stairs and then across a car park, which the Claimant had been unable to manage. She would have her food shopping delivered and her friends would carry it into the flat when it arrived.
Ms. Randles said that, during the time that they lived together, the Claimant's medication had had a real impact on her. It had made her very drained and drowsy in the morning, and she would really struggle to get up. Ms Randles would try to motivate her. She and Ms Dixon would often arrive at the studio one or two hours ahead of the Claimant. The Claimant would sometimes work from the flat in the morning, depending upon how she had been feeling at the time.
During their final year, all three would still go out and would normally take an Uber taxi. The Claimant would take her crutches and would be asked frequently about why she had them. When she used a wheelchair, people would often comment and ask questions. If the three friends were in a pub or a bar, they would try to find an area which had comfortable seating, although the Claimant would try to lead as normal a university life as possible. In cross-examination, Ms Randles said that they had tried to do as much as possible, having a good time whilst still studying. They had wanted the Claimant to have the best experience possible, and would take her shopping and for drinks in her wheelchair, and go clubbing.
Ms Randles told me that, during her final year at university, she had applied for an internship with H&M, which had commenced in October 2022. Initially, it had been a six-month position as a designer, later extended to nine months, following which she had worked as a junior designer for three months. At the date of trial, she was employed as a junior product developer on a 12-month contract. She said that Ms Dixon had also obtained a placement with the same company, and, at the date of trial, was working for Tesco in its clothing department. Friends and classmates variously worked for Next; Regatta; Puma; JD Sports; and Assembly Label (Australia). Ms Randles described the Claimant as being very talented and thought that she could have had a similar career path. She recalled the Claimant's anxiety in her final year over obtaining a graduate job, and her worry about the physical element of such a job or internship, by reason of which she had wanted to wait until after her hip replacement, planning to work on her portfolio and then apply for roles. Ms Randles considered that, in September 2023, the Claimant had not really wanted to talk about job applications, and that she had lost some of her confidence. In Ms Randles' view, the Claimant's injury had held her back from applying for jobs following their final year at university and its impact continued to hold her back. She said that, in order to obtain a design job in fashion, it would be likely that the Claimant would first need to secure an internship or graduate role, through which to gain experience. For some companies, it was likely that the role would involve a certain physicality and an element of running around, which could include cleaning up the studio after others; fetching coffees; and collecting things. Once one has graduated from such positions, the roles become a lot more computer-based, Ms Randles said.
Zoe Dixon
Ms Dixon is employed as an Assistant Designer for Tesco's F&F clothing range. Her recollection was that the Claimant had been walking with crutches during her first year at university but had used them a lot less during her second year and, from what she could recall, had been crutch-free by Christmas of 2019. Ms Dixon's evidence was that she and many of her classmates, including the Claimant, had been seeking to secure placements for several months in advance of their third year, but had received feedback to the effect that placements were being postponed owing to the Pandemic. Ms Dixon said that she had been one of the final three applicants under consideration for a placement with Next, in Jakarta. She had been asked questions which had led her to believe that she would be selected, but the placement had then been cancelled owing to concerns over Covid-safety. Ms Dixon said that they had formed a Facebook chat group in which they would share job opportunities of which they had become aware and that a number of opportunities in London might have been suitable for the Claimant, but a lot had been unpaid, or of very short duration ? it had been a very difficult time at which to get a job. Ms Dixon said that she had secured her own unpaid placement as a studio assistant, working in an independent studio in Burnley, which made high-end couture clothing, two weeks prior to the deadline. Amongst her responsibilities had been checking garments for quality control; helping with hand-sewing; pattern-making; dealing with orders; unpacking and packing a lot of boxes; assisting with photo-shoots and props; and undertaking any ad hoc jobs. She said that the internship had involved a lot of running around for the benefit of her colleagues and had been physically demanding.
Ms Dixon gave evidence of the assistance which she and Ms Randles would give the Claimant going up and down the communal stairs to their flat, noting that, because she had been so independent, she had not always liked them to do so. She said that, at the beginning of their final year at university, the Claimant had been able to use two crutches to go back and forth, but had soon had to use her wheelchair to do so. Ms Dixon and Ms Randles would help her by carrying her bags or pushing the chair, ensuring that she had plenty of blankets and hand warmers during the Winter. Ms Dixon said that, at university, she had sat next to the Claimant and had helped her by fetching materials and other things from around the studio. The Claimant would often be very tired and would sometimes fall asleep at her desk. Her medication had also made her very sleepy, and she could struggle to wake up in the morning. When deadlines were approaching, Ms Dixon and Ms Randles would spend long days at university and would often arrive very early. The Claimant's medication would preclude her from joining them, and, on those occasions, she would take an Uber to class. She would also sometimes take an Uber home, if her friends were staying later in the library, or if it was too dark to push her wheelchair home. As a result, Ms Dixon said, the Claimant lost a lot of time during her fourth year and was provided with a two-week extension for the provision of her final project.
Ms Dixon's evidence was that the Claimant would try to do as much as possible in their shared flat, with household tasks being allocated between them, according to what she could and could not manage. Ms Dixon would clean the bathroom, as the Claimant could not manoeuvre to clean the bath. The Claimant would keep the kitchen clean by wiping surfaces, and, about halfway through the year, discovered that she could use a kitchen chair to sit at the sink and do the washing up. Her friends would help with carrying her food shopping deliveries from the front door, so that the Claimant could unpack them in the kitchen.
Ms Dixon said that, during her final year, she, too, had secured a six-month placement ending in March 2023 with H&M in Stockholm, as a design intern for older girls' clothing. The Claimant had not applied as she had been concerned that her health would not allow her to carry out the role. At the end of Ms Dixon's placement, the team within which she had been working had had no available vacancies, and so she had moved to Tesco, in Welwyn Garden City, to work in her current role, in which she intended to remain. She told me that she was living in rental accommodation (being a converted garage which she shared with her landlady's two children), at a cost of ?650 per month, and that she had looked at other positions in London but had either just missed out on obtaining them, or the level of remuneration would not justify the cost of moving to London, so that she was stuck. Her understanding was that the going rate for shared accommodation in London was approximately ?1,050 per month, excluding bills). At the outset, Ms Dixon had been offered a salary of ?24,000 a year, later learning that that had exceeded entry-level salary, which she thought had been the result of her experience at H&M in relation to the same consumer age-bracket, and her degree qualification. A colleague of hers had earned ?21,000 per annum. In April, Ms Dixon had been awarded the maximum pay increase of ten per cent, such that her current annual salary was around ?26,500. Whilst the remuneration for a number of jobs was not advertised, her position in London would command a salary of approximately ?28,000, with the better employers paying up to ?31,000, she told me. From discussion with friends, Ms Dixon was aware that, six months following graduation, the salary in Manchester would be approximately ?21,000 a year, with salaries in London being approximately ?24,000 plus.
At the end of the Summer in 2022, the Claimant had moved back to her family home to focus on her then imminent operation and becoming healthy. Ms Dixon had tried to help her to apply for a job which had become available at Tesco, in 2023. The Claimant had been concerned that her CV and portfolio had not been as good as they could have been, and had heard nothing further. Ms Dixon stated that, in her experience of applying for roles in the fashion industry, there was a strong emphasis on prior experience, and she considered the Claimant to be at a disadvantage owing to the impact which her disability had had on gaining a placement and a graduate role. She also thought that the Claimant's confidence in her work and in herself had suffered.
The expert evidence
I summarise below only that expert evidence which relates to or touches upon the issues which remained in dispute by the end of trial.
The orthopaedic evidence
Professional expertise and experience
For the Claimant ? Mr David Conlan
Mr Conlan retired from NHS practice as a full-time consultant paediatric orthopaedic surgeon, based at Addenbrooke's Foundation Trust in 2016, and from private practice in 2018. During that time, he undertook numerous surgical procedures in cases of DDH, including revision surgery for re-dislocation, thereby acquiring experience of its effect on muscle development and the degree of surgical scarring which can occur after surgery. In 2016, he was appointed as an Honorary Visiting Specialist at Addenbrookes Foundation Trust but did not continue to operate after that date, though he did attend multi-disciplinary meetings to discuss and provide advice in paediatric orthopaedic cases. His clinical practice involving adults who had undergone primary and revision hip surgery following DDH surgery ended in approximately August 1990, at which point he had been a Clinical Lecturer and Honorary Registrar. During the course of his orthopaedic training, between 1988 and 1992, he carried out in the order of 80 primary hip replacements. He last undertook a primary or revision hip replacement on an adult in 1992 and his last follow up on such a replacement took place in 2008. He was not trained in the revision of THRs. His last clinical practice dealing with adults requiring further surgery following DDH was in August 1990, some 34 years prior to trial, for which reason during that same period he had not, as a treating surgeon, advised any adults on activity following THR. When in practice, Mr Conlan had focused entirely on paediatric orthopaedic surgery and paediatric spinal deformity surgery. Whilst, in common with all orthopaedic surgeons, prior to specialising he had undergone extensive training in different areas of orthopaedics in adults, including in joint arthroplasty, he has not performed a total hip replacement or revision for any patient during the period over which the National Joint Registry ('NJR', established in April 2003) has been in existence.
Mr Conlan contributed to a two-part publication, respectively on the pathogenesis and early management of DDH, and on management of the established case, in 1995. Since 2011, he has prepared causation, condition and prognosis expert reports on late diagnosis of DDH in approximately 20 cases. He was keen to emphasise that he maintained a good clinical understanding of the issues experienced by children who had had DDH and had gone on to have surgery. His evidence was that, having prepared a number of medico-legal reports in relation to late diagnoses of DDH, he had had the opportunity to discuss the important issues with his counterpart, and that, over and above the experience gleaned from carrying out hip replacements and seeing patients in clinic, he had found more valuable the discussion of issues with those consultants, and also particularly with care experts, whom he considered to have a much better insight than orthopaedic surgeons into how patients get on in their home environments. Mr Conlan's view was that, for the purposes of understanding the outcome of patients who had undergone hip replacement surgery, he would not have gained a great deal more from undertaking further clinical procedures than he had gained from his discussion with other expert witnesses, including care experts. Under cross-examination by Ms Power, he agreed that his approach to a case of this nature was essentially academic- and literature-based and informed by discussions in medico-legal cases; it was not based upon direct experience of performing THRs or revisions, or on following up with patients thereafter.
For the Defendant ? Mr Mark Ashworth
Mr. Ashworth has practised as a Consultant in Trauma and Orthopaedic Surgery since 1999. Until February 2022, elective orthopaedic surgery constituted approximately 70 per cent of his clinical work. Since then, his practice has been concentrated on that work. He is a specialist hip and knee surgeon having experience of most aspects of hip and knee surgery, from primary joint replacement through to complex revision surgery. He also performs hip and knee arthroscopies. His evidence was that, over the course of his career, he has, on average, undertaken somewhere in the region of high-teen hip revisions each year and has contributed data to the NJR since its inception. He has undertaken osteotomies of the femur and subsequent joint replacements; hip replacements following peri-acetabular osteotomy and subsequent to previous femoral fractures; and a situation which he described as having been analogous to the Claimant's osteotomy of the femur, though he had not had a patient who had undergone successive osteotomies. He is experienced in operating on adult and on paediatric patients, with patients towards the younger end of the age range, the youngest patient on whom he has carried out a hip replacement having been 17 years old. Mr Ashworth has prepared medico-legal reports since 1992, including in more than 30 medical negligence cases in the 12 months prior to trial, and contributed to numerous hip-related publications between 1997 and 2019.
The orthopaedic reports
Mr Conlan prepared three reports for the purposes of this case. The first, dated 5 October 2021, had been prepared before the Claimant had undergone a THR, and reflected the position in the run up to that surgery. A second report, dated October 2023 (following an examination in August of that year, some eight months after surgery), provided a conditional prognosis. The third report, prepared jointly with Mr Ashworth, was dated 24 August 2024. On 20 September 2024, Mr Conlan also answered certain questions regarding his professional experience, raised by the Defendant under CPR Part 35.
Mr. Ashworth's report was dated February 2024, and followed his examination of the Claimant on 19 August 2023. He was the co-author of the joint report, dated 24 August 2024. He noted that, in the interim, he had revised his opinion of the period over which pre-operative care would be required, on the basis that he had changed his view of the period during which the Claimant would be waiting for surgery. He had also become more optimistic as to the need for mobility aids following the third revision, informed by two articles relating to typical mobility aid usage in older patients.
Relevant expertise and experience
There is no doubt that Mr. Ashworth has current and relevant clinical expertise and experience which Mr Conlan lacks, including in relation to the particular type of implant which the Claimant has ? a Corail Pinnacle system with ceramic head and polyethylene liner. That is not to conclude that Mr Conlan's evidence is automatically to be rejected wherever in conflict with that of Mr Ashworth, or that he lacks any relevant expertise and experience. Of importance, for example, is his understanding of the impact upon a child's body of multiple surgeries during childhood. The fact that there were substantial areas of agreement between the experts also indicates his broader understanding of the relevant orthopaedic procedures and their attendant risks and consequences. Mr Conlan's own opinion was that the Claimant's is an exceptionally complex and unusual case, for which reason Mr Ashworth was at no particular advantage over him in assessing the issues arising. Whilst rejecting that broadbrush proposition, which appeared to me to lack force in circumstances in which Mr Ashworth has considerable relevant and current clinical experience and knowledge on which to draw and from which to extrapolate, inevitably lending weight to his opinion, I bear in mind that it is for the Court to be satisfied of the conclusions which safely may be drawn in relation to each disputed issue having regard to the evidence as a whole.
Summary of the key areas in dispute
The experts agree on the overall trajectory of the Claimant's orthopaedic future. In the course of her lifetime, she will: require three revision hip operations?with progressively diminishing outcomes; experience?periods of symptomatic deterioration before each revision; and require?temporary support?and?short-term care?around those procedures. The key issues between them concern the?extent of her long-term functional limitation, including how far residual weakness, discomfort and fatigability will limit her activities; the?level of assistance?which she will require with daily independent living as she ages; and the degree to which her childhood surgical history will affect her?mobility, independence and living arrangements, including whether she will require?single-level accommodation,?ongoing domestic or childcare assistance, and?additional support with travel and daily activities.
It is convenient to summarise the expert orthopaedic evidence thematically.
Post-THR recovery and trajectory
The experts agree that the Claimant's muscle bulk will improve, but never fully normalise, with recovery plateauing in around November 2025. Whilst living with her parents, she will make a near full recovery, with symptoms resolving by that date, apart from mild ache with walking very long distances. They disagree about residual weakness and fatigability at a time when the Claimant moves to live independently, working and managing her home. Mr Conlan anticipates that she will then experience more in the way of aching in her left hip and easy fatigability. Mr Ashworth expects minimal restriction on activity.
Whilst opining that the Claimant had not undertaken normal activity as a child to stimulate muscle development, and had undergone multiple operations which had caused scarring, leading to weakness in the hip, Mr Conlan shared Mr Ashworth's view that she was, nevertheless, doing better than would be expected following her THR. His evidence was that there had been no deterioration and that the process of recovery would continue until November 2025 ? a view shared by Mr. Ashworth.
Mr Conlan stated that his approach to writing his reports and contribution to the joint statement had been to think of measures which would be reasonable to ensure that the Claimant had a better quality of life ? that she would enjoy life as much as she possibly could. In his opinion, the Claimant was going to be very active, in particular as a young woman, which was to be encouraged and would reduce the prospect of muscle wasting in later life, building muscle function and conditioning the muscle, though there remained a balance to be struck as increasing demands would also cause intrusive symptoms and fatigue. In his view, the major difference between Mr Ashworth's opinion and his own was that, in his (Conlan's) view, as the Claimant's levels of activity increased, she would experience more problems, whereas, in Mr Ashworth's opinion, with further recovery those problems would decrease. It seemed to Mr Conlan that the effect of the Claimant's own evidence was that her symptoms and fatigue had increased. Nevertheless, it was his opinion that he and Mr Ashworth had reached broadly the same conclusions regarding her trajectory, albeit that Mr Ashworth had been more optimistic regarding the recovery which would occur subsequent to his examination and report.
Mr Ashworth stated that his view of the difference between his own opinion and that of Mr Conlan was more nuanced ? his own position was based in part upon his assumption that the Claimant was committed to her potential outcome, and in part upon his experience of patients who had lived with relatively minor issues, and had presented in his clinic informing him that they could do pretty much everything which they wished to do.
It was put to Mr Ashworth that the outcomes on which he had opined reflected his particular expertise and dogged pursuit of an outcome which other surgeons would not feel obliged to seek. He replied, ' I think I do what a reasonable surgeon and a reasonable revision surgeon should do, and I would be very happy to, and I do, take on cases where that has not occurred in order to advise the court in such cases. ?Because some are unreasonable and quite simply just tell their patients, "What do you expect?" and then leave them to languish with pain that they need not have.' Mr Ashworth stated that he defined an excellent outcome to mean a forgotten hip replacement, where the patient says, 'Life is great; I've forgotten I've got my joint replacement. I just carry on as normal. Occasionally, I look in the mirror and I see a scar.' Such situations were unusual but not infrequent. A good outcome, he considered to be one in which the patient's symptoms were a bit like those of the Claimant, whereby she could do pretty much everything which she wished or needed to do ? 'I can do everything I need to, but I get a little bit of an ache with a long walk or if I lift anything heavy', or, 'I was turning the garden over yesterday with a fork and it was a bit sore afterwards.'
Mr Ashworth's initial analysis of the Claimant's status was 'at the upper end of "good", on the basis of the evidence that's been presented and [the Claimant's] comments [in court], with a degree of discomfort which is, in my opinion, probably fatigue-related, but otherwise she's doing a lot of what she wants to and is on the trajectory to recover over the timeframe that [Mr Conlan and I] had both opined, which was November 2025.' On further questioning, he stated that he would perhaps downscale the Claimant's then position to simply 'good', having regard to the Claimant's evidence as to the pain or stiffness which she experienced in her hips, or hip, when working two long shifts on consecutive days, and the references in the clinicians' letters to the fact that she was making a good recovery. Mr Ashworth stated that there were four categories of outcome ? a bad outcome, where there had been a complication; a poor outcome, where the patient was not making satisfactory progress, nearly always related to something which needed to be addressed; a good outcome, where the patient was making expected progress at the right rate for the timeframe; and an excellent outcome ? the forgotten hip replacement ? which, if it is to occur, will normally do so at around one or two years after the hip replacement. He would allow for some slippage at the time of revision, on the basis that, with each operation, the outcome would be slightly less good than for the primary operation.
Mr Ashworth agreed with Mr Matthews' proposition that the Claimant had clearly been very pleased with the outcome of surgery when she had seen him, less than a year later. His opinion was that the Claimant was discovering the current capability of her muscles and that appropriate levels of exercise, supervised by a therapist, would maximise recovery and be likely to negate the discomfort which she experienced with greater activity, longer days and longer walks. He considered the problem to be one of fatigue. In general terms, most recovery would occur in the first three to four months following a primary hip replacement and would continue for a period of up to about three years, with improvement of up to about 10 per cent taking place in the final two to three years, though it would depend upon the underlying problems, and some patients would recover more slowly. Mr Ashworth's position, agreed by Mr Conlan, was that the Claimant would have a near-normal recovery but might have discomfort when walking longer distances, and would be symptomatic if she were to push herself too far. She would lead a near-normal life. He stated, 'I think the potential for [the Claimant] to recover to a good degree is there. Her muscles have been demonstrated on the MRI scan to be near-normal, albeit at the time reduced in volume. She's had surgery on the femur, which, in my opinion, from an orthopaedic perspective is mild. It does not have huge impact on her mobility. She had an operation in 2003 which she's now had 21 years to recover from. She's had a muscle-protecting approach to the periacetabular osteotomy. There is no reason to suspect that these muscles will not recover well, but not fully, as we have agreed.' Mr Ashworth said that all doctors see patients who do not optimise their outcome owing to psychological issues. Equally, they see patients who ignore what is going on and just get on with life, in terms of their potential for recovery.
Mr Ashworth accepted that, on the basis of a snapshot of her current situation, the recovery which the Claimant had made two years after her operation was not at the absolutely excellent end, because she still had quite significant residual discomfort. The difference between the experts was as to how that informed the likely trajectory, one year further on, and whether some support would be helpful at that time. On the basis of the Claimant's evidence, and whilst acknowledging that there could never be certainty, Mr Ashworth saw potential for further improvement, aided by her remaining as active as possible and challenging herself with mobility issues. Mr Ashworth stated that his opinion of the trajectory of the Claimant's recovery had been reinforced by her evidence to the Court to the effect that she was then working four days a week and on a Saturday. Albeit that she was only three weeks into that working pattern, such that she was not sure of its impact, he noted that she was getting on quite well and thought that she was more physically capable than had been the case a year earlier, in the space of which her leg muscles had returned and her weight-bearing ability had improved. In Mr Ashworth's opinion, that evidence also indicated the ability to rehabilitate muscles to a point at which they were larger and stronger, which would compensate for any lack of development at an earlier age.
Based upon his experience of dealing with patients who experienced residual pain, and having regard to what he described as being the Claimant's 'admirable approach', Mr Ashworth considered that she would be more likely to be at the better end of function and ability, though she might retain nuisance-level discomfort with longer distance walking and greater physical activity. He accepted that a patient who is less able, or less physically well-conditioned, prior to a first revision is less likely to have an excellent outcome, although the difference was likely to be minimal in comparison with the risk of infection, for example. In general, he considered the impact of any lower starting point following the end of the recovery period (as anticipated by Mr Conlan), to be minimal in comparison with the potential for a complication, or a less good outcome from surgery ? in his opinion, one could not predict accurately on the basis of the starting point. Further, barring a complication of which the risk was considered to be low, (per studies by Gell et al (2015) and Statista (2014)), there was the potential to reset with a revision operation ? one could not make a straightforward prediction of a declining slope.
Mr Ashworth acknowledged that, when giving his prognosis in August 2023, he had anticipated that the Claimant would be doing more and doing better than her evidence had suggested to be the case, which might, in turn, affect her forward trajectory. Nevertheless, he considered that, on the balance of probabilities, she had the potential to return to working full-time, with minimal discomfort when walking longer distances. One might infer that she would experience discomfort at the end of a long day on her feet, but he did not see that restricting her from a physical point of view. Sensitivity to cold could result from surgery or injury, and was generally relatively mild, nuisance-level (by which he meant unintrusive), and something with which people lived, like sciatica. Whether that could be improved was a matter outside his area of expertise. Were it to have been the case that the Claimant had been favouring her right side, Mr Ashworth accepted that that could have contributed to pain in her hip on that side, after a long day of standing, but he also observed that there was a very slight shallowness at the front of the Claimant's right hip socket (apparent on X-ray), which might have led to a pressure overload and to a dull ache in the groin which would have developed in her middle years, in any event, by reason of a pre-existing vulnerability. Whilst Mr Ashworth's evidence was that walking abnormally did not create a problem in a normal joint, he acknowledged that it did not follow that the Claimant would have experienced pain had she not had to bear weight on the right hip, owing to the problems with her left. In his view, having observed the Claimant in court, her gait had been fairly even, accepting that she had walked more heavily on her right side in previous years. Nevertheless, he considered that she would have experienced aches and pains in her right hip in later life in any event.
Muscle condition, scarring and activity tolerance
The orthopaedic experts agree that muscle improvement will not fully normalise and that Sarcopenia (age-related loss of muscle mass and strength) can be mitigated by activity. They disagree on the extent to which the Claimant's childhood operations and scarring will restrict long-term function.
Mr. Conlan acknowledged that, particularly following surgery, in general hip function will be optimised by its use and by building up the musculature surrounding the joint. He further acknowledged that, depending upon the nature of the surgical procedure, it might be necessary to cut through muscle in order to access the operative area, albeit that one would tend to cut in line with the fibres, so as not to damage muscle. Further, a patient who experienced pain in the joint might limit her activities, or avoid certain activities altogether, leading to deconditioning of the muscles surrounding the joint, itself leading to weakness and causing pain and fatigability. Mr. Conlan accepted that the Claimant had made very good strides indeed but observed that, in the course of an open reduction of a DDH, three groups of muscles had to be lengthened, operating to weaken them. Secondly, multiple surgeries had caused more in the way of scarring than would be the case for the majority of those who undergo a primary hip replacement and who have not had prior surgery. Finally, normal activity levels and stimulation of the muscle were important aspects of muscular development in a child; something which, in his view, the Claimant had not had. As a result, she could not expect to obtain the same benefit from conditioning exercise as would be obtained by the average person. Mr Conlan's opinion was that the Claimant would be able to cope with stairs, but not as comfortably as would otherwise have been the case. Single-level accommodation would be much more energy-efficient and would go a long way to achieving the quality of life which would have been enjoyed but for the admitted negligence. He explained that, in the short term, the Claimant would benefit from whatever form of exercise a physiotherapist, or personal trainer, would advise, in order to improve her strength. In the medium term, whilst living independently, she would have plenty of exercise through walking to the bus stop, engaging in social events, going to work and looking after her home.
Mr Conlan acknowledged that, when the Claimant had been reviewed in the early stages, she had been doing well and had not since deteriorated. His concern was that she would increasingly experience fatigue and troublesome symptoms. She would be more prone to experiencing difficulty or greater fatigue when climbing stairs at an earlier age than would otherwise have been the case. In his opinion, the multiple surgeries in her childhood had compromised her musculature, which would contribute to difficulties in the future. Furthermore, muscle scarring would have decreased her flexibility and would cause discomfort during regular activity. Mr Conlan stated that he was of that view notwithstanding the content of the medical records relating to the Claimant, then aged six, recording her ability to walk normally, jump normally, squat and so on. In general terms, he said, if the clinician digs deeper at the time of such consultations and seeks greater detail from the child's parents, s/he will often find that the child is experiencing greater difficulty than would seem to be the case ? the account given by the patient, or her parents, of the effect of surgery on the Claimant's early life ought not to be ignored.
Mr Conlan's position was that the Claimant had been working hard to try to regain semi-independence whilst living at home, going out to work and increasing her hours, hoping to improve her career prospects. It was clear that she had seen the benefits of perseverance and activity. As a result, he said, she had been experiencing 'a lot of troublesome symptoms'. Mr Conlan agreed with Mr Ashworth that the Claimant ought to avoid activities which might put repeated strain on the joint itself, such as heavy impact sport, or heavy digging in the garden. He was also of the view that account should be taken of that which the Claimant could manage comfortably, as life developed.
Mr. Ashworth acknowledged that, with surgery such as that which the Claimant had undergone in 2018, there would have been disruption of tissue which had already been disrupted by prior surgery undertaken at an earlier age. He further agreed that the Claimant's case was unusual and complex. As a matter of principle, the muscle will not be perfect following surgery, but the extent of scarring or damage would depend upon the route taken into the hip. He agreed with Mr Conlan that, as the Claimant became more active, her muscle bulk would improve but would never fully normalise.
Dislocation risk and use of stairs
The experts agree that, to avoid dislocation, the Claimant should avoid extremes of movement involving hip flexion, adduction and internal rotation ? a position known to be associated with an increased risk of dislocation following posterior approach to replacement surgery. Whilst it was not essential that she avoid impact or carrying heavy objects, it was reasonable for her to do so, in order to improve the lifespan of her hip replacement. In Mr Conlan's opinion, it was reasonable to avoid heavy activities, not only to improve the lifespan of the implant, but also having regard to that which the Claimant could safely and comfortably do in order to enjoy as good a quality of life as possible, and to minimise the risk of premature implant failure. The experts agreed that she would be best suited to a relatively sedentary occupation, which avoided heavy lifting and twisting activities.
On Mr Ashworth's evidence, the risk of dislocation was at its greatest immediately following surgery and usually followed from incorrect positioning of the implant. So, all things being equal, when the implant was in the right position, as was true of the Claimant's, the risk of dislocation was small. As was clear from the study by Cnudde et al (2024), by two years after the operation, there was a two per cent risk that dislocation would occur. The Claimant had now passed beyond that period, and there had been no dislocation. After three years, the risk increased by 0.3 per cent. Each year, the risk of any dislocation resulting in the need for revision was one third of the rate of a very small number. By 15 to 25 years down the line, it would become very obvious that the hip was wearing out, being the cause of dislocation, at which point, there would be the need for revision. Mr Ashworth was also critical of the paper by Kwak et al (2021), which recommended that stair-climbing ought to be avoided during the early post-operative period. His evidence was that it was concerned with short-stemmed implants, which the Claimant did not have, and those which had not been correctly aligned down the middle of the femoral canal, which also did not apply to the Claimant. In her case, climbing stairs was to be encouraged, for the reasons previously summarised, though there would be times when negotiating stairs would be difficult, such as immediately prior to, and shortly after, revision surgery.
Revision surgery forecasts and risk of early failure
Mr. Ashworth and Mr Conlan are agreed that: 1) on the balance of probabilities, the Claimant will require revision surgery to her left hip at the ages of 47, 67 and 82, and on the cost of that surgery; 2) there is a cumulative 4 per cent risk of the need for revision in the 16 years following the primary procedure, and a risk, albeit modest, of the need for further revision surgery before the ages of 67 and 82; 3) there are risks of other complications which would require some form of less invasive surgical intervention; and 4) there will be a progressively less satisfactory outcome to each revision and a higher risk of complication.
The experts agree that there is a risk of early implant failure, before the Claimant reaches the age of 47, but disagree on the magnitude of that risk, with Mr Conlan assessing it as falling between four and eight per cent, based upon the NJR data, and, in his opinion, supported in that view by a paper by Kang et al, entitled 'Outcome and complication rate of total hip arthroplasty in patients younger than twenty years: which bearing surface should be used?' Having regard to the Claimant's recovery to that point and to the NJR data, which he considers to be more apposite, Mr Ashworth is of the view that greater optimism is warranted and that the risk is no higher than five per cent. In his opinion, the Kang study had looked at a very limited number of patients and reported a very high failure rate. There had been no DDH patients within the group, and the explanation for the very poor outcome had been the presence in the study of historical implants, including the bearing surface (being one of the matters which caused loosening). If one starts with a poor-quality bearing, it is no surprise that it will wear out more quickly, he said. The range of prostheses considered had not included that of the type which had been implanted in the Claimant. Mr Ashworth's evidence was that the outcome of the paper was completely inconsistent with the evidence drawn from the NJR, and with the Corail Pinnacle data extracted from the latter. The quality of implants had since improved. Whilst the paper related to the correct age range, in Mr Ashworth's opinion it was not a very good paper from which to extrapolate for current purposes.
Mr Ashworth, though not Mr Conlan, was also referred to the Huerfano paper, which, he noted, related to the appropriate adolescent age group, but within which only 116 replacements had related to DDH, compared with the thousands of cases recorded in the NJR data, and, specifically, relating to those below the age of 55, of whom there were ten times more. Huerfano referred to a complication rate of 3.4 per cent and a revision rate of 14 per cent, but, as the authors acknowledged, one of the reasons for failure had been the quality of the plastic, such that poor implant design had played a part. Things had since moved on. Once again, the study had been concerned with the historical position, and with a short-term follow up. The Claimant's ceramic implant, he noted, was very smooth, with a low risk of catastrophic complication, which, when placed against the newer plastics, resulted in wear to the latter of less than 0.1mm per year. Mr Ashworth estimated that there would have been statistics and studies relating to the type of implant fitted in the Claimant relating to a period of around 10 to 12 years, which he considered to be a reliable basis for extrapolation. The lines on the graphs had started to diverge, he said, giving a degree of confidence that there was a difference in performance.
Mr Conlan acknowledged that, on the whole, a femoral osteotomy would not have too much effect upon the muscles, and that the modern approach to a periacetabular osteotomy involved much less damage to muscles than would previously have been the case. He further acknowledged that the benefit of a ceramic, as opposed to a metal, femoral head was that it caused less daily wear. The titanium socket, lined with polyethylene, would also wear out less quickly. He agreed that the main reason for failure of hip implants was septic loosening, whereby excessive loading on the new hip would cause an inflammatory reaction leading to loss of bone around the prosthesis. The most common reason for earlier failure, certainly in the primary replacement, would be infection or dislocation. Generally speaking, a deep infection would require revision surgery. Mr Conlan considered that the Claimant had passed through the initial period of risk for early failure owing to infection or dislocation. Whilst observing that no DEXA scan had been undertaken in this case, he speculated that, as a result of her past history and reduced level of activity, the Claimant's bone quality might not be as good as would otherwise have been the case, acknowledging that there was no direct evidence to that effect, or of poor implant orientation of the socket and femur in this case.
In Mr Conlan's view, the progressive improvements in prostheses over the years required that the literature, particularly that concerned with older data, be treated with caution, because it did not differentiate between particular groups of patient, That notwithstanding, and acknowledging that there had been significant improvement over the last 30 years in the quality and nature of components used, Mr Conlan considered that it was unrealistic to expect a quantum leap within one generation.
Mr Ashworth's evidence was that there had been huge changes in technique and components during the 30-year period since Mr Conlan had performed a hip replacement. In his words, 'modern implants are much grippier and therefore less likely to subside', including in an osteoporotic patient. Similarly, there had been huge changes in the type of acetabulum used. Personalised implants enabled the manufacturer to make a hip replacement bone-shaped, rather than requiring the bone to be hip replacement-shaped, meaning that the replacement could be matched more accurately to the shape of, and any defect in, the patient's bone. The majority of implants used for revision surgery were titanium, often in multiple pieces, facilitating a more accurate match of the replacement to the shape of the patient's bone. Mr Ashworth described the Claimant's implant as a modern prosthesis, having excellent longevity. Nevertheless, he acknowledged that, whilst lower than in the past, the various risks attendant upon THR and revision surgery which might result in ongoing impact on a patient's mobility and ability to carry out day to day activities could not be reduced to zero. It was for that reason, that he and Mr Conlan had agreed the risk of failure of the primary hip replacement to be four per cent, based upon the NJR figures relating to a 19-year period, albeit that those figures did not cover the percentage for all risk; rather for those risks which would require surgery. However, the number of implants inserted in DDH patients was too low to enable extraction of meaningful first, second and third revision complication data.
The experts were agreed that the risk of complication which would restrict activity following the first revision would be five per cent, doubling with each operation, to 10 per cent for the second revision and approximately 20 per cent for the third. In each case, the risk was of issues which would be likely to have a more than minimal impact upon the Claimant, giving rise to a need for additional assistance or earlier subsequent revision surgery, and the experts' views had been informed by a study by Badarudeen et al (2017), in which the main types of complication identified (short of death) were infection; redo revision; venous thromboembolic disease; dislocation; pulmonary embolus; and aseptic loosening. They noted that there were no publications dealing with the risks following multiple revision THRs and that, having reviewed the literature from the NJR, only 1.5 per cent of Corail Pinnacle hip replacements had been performed for DDH. Mr Conlan observed that there was very little literature on the complication rates of second and third revisions. He and Mr Ashworth were of the view that it was not possible to identify in detail the possible outcome (in terms of treatment and impact on longer term prognosis), were each of the complications of which there was a risk to occur, and that it was, 'for this reason that we are in agreement that the award of provisional damages would be appropriate, to allow the Claimant to return to Court should a complication occur which impacts on her from a pain, suffering or loss of amenity, causing a need for additional assistance, treatment or surgery, which was not previously subject to financial compensation.' (sic)
Girdlestone procedure
The experts agree that, if required, a?Girdlestone procedure ? excision arthroplasty of the hip ?would have profound consequences for the Claimant, resulting in?wheelchair dependence both indoors and outdoors , with associated leg-length shortening and limited mobility. They further agree that the ? lifetime risk?of the need for such a procedure is?very low, being?less than one per cent , and that the indication would typically be?deep infection?following revision surgery. If eventuating, it would most likely be required towards the end of the Claimant's life, in her eighties.
Mr Ashworth's evidence was that the risk of a need for a Girdlestone procedure could occur earlier, but more likely later, in life. He noted that most patients who underwent such a procedure would have leg shortening; additional needs which would need to be considered by other experts, such as a shoe raise; and limited mobility, the degree of which would be proportionate to the age of the patient. Following such a procedure, a patient would probably mobilise for a maximum of approximately half a mile, almost certainly using a walking aid, before becoming too uncomfortable, or the muscles too fatigued. That said, his evidence was that he had performed a Girdlestone operation on a patient who had been 35 years old at the time. Ten years on, she had told him that she could walk as far as she needed to, which had stunned him, but indicated that the effect of a Girdlestone procedure was age-related. The most common cause of the need for such a procedure would be infection. Whilst the risk of it being required in the Claimant's case would be about one per cent over her remaining lifetime, were it to eventuate, it would be very serious in terms of its effect on her mobility and ability to undertake heavier physical activities.
Review, waiting lists and peri-revision assistance/care needs
The experts agree on a need for follow-up imaging and review, though Mr Conlan did not propose a specific schedule, or criticise that proposed by Mr Ashworth (see below).
Mr. Ashworth observed that the Claimant had been advised to have an X-ray 10 years following her implant. That reflected the fact that there would be a period of asymptomatic damage relating to polyethylene wear. A patient would usually become aware that something had changed through discomfort when walking. In Mr Ashworth's opinion, it would be at that point that the Claimant would have a complex discussion with her private surgeons, following appropriate investigations, weighing up the risks and benefits of surgery. It was likely that, if, at that stage, she was managing with minimal, if any, disruption to her daily activities, she would carry on under supervision and be advised to re-attend or kept under review. At such point as symptoms became intrusive to the point at which care, or amendment to her activities was required, she would be placed on the waiting list, for around four months. Mr Ashworth noted that the Claimant would be aware, from discussions with her treating team and from the evidence given at trial, that she was certain to need a revision operation. The longer the time which elapsed between the onset of symptoms and surgery, the greater the damage which would occur to the bone. With that in mind, on reflection it was Mr Ashworth's view that the Claimant would present at an earlier stage than he had opined at the time of his original report, recognising that it was impossible to know which other features of her life might dictate her decision-making at the relevant time. Mr Ashworth acknowledged that his revised timeframe was closer to that which Mr Conlan had given in his report.
In Mr Ashworth's view, unchallenged in cross-examination, it would be appropriate for the Claimant to have a follow-up appointment ten years after the THR, and every five years after that until the end of the anticipated 25-year lifespan of the hip replacement, together with two further follow-ups after the second revision. That would identify any problem during the asymptomatic phase and enable surgery to take place before greater damage had occurred to the bones and at a time when operating would be more straightforward, with a greater rate of success. It would also enable any earlier implant failure to be spotted, reducing its impact in the unlikely event that it had occurred. No follow-up would be required after the third revision because it would be highly unlikely that anyone would offer surgery were the hip to fail at that stage. For each such follow-up, to include an X-ray and an immediately adjacent appointment with an orthopaedic surgeon for review of that X-ray, he estimated a cost of approximately ?500 ? a total cost of ?4,500.
In relation to the assistance/care likely to be required during the peri-operative period for each revision:
The first revision
a. the experts agreed that the Claimant would require increasing assistance with the more arduous domestic activities, including gardening, deferring to care expert opinion in that respect. Mr Ashworth considered that there would be a four-month period of pre-operative disruption. In Mr Conlan's opinion, pre-operative disruption would occur over a six to eight month period. The difference between them lies in Mr Ashworth's assumption that the Claimant will benefit from private healthcare, meaning that she is likely to be placed on the agreed four-month waiting list as soon as she reaches the point at which she requires assistance, and Mr. Conlan's view that it ought to be recognised that the Claimant will be unlikely to present immediately that her symptoms deteriorate, and that allowance ought to be made for the inevitable need of any patient to organise his or her life in order to be able to have the revision operation. The experts were agreed that the post-operative period of disruption would be four months.
The second revision
b. Mr Ashworth considered that the Claimant would have an increasing need for care and assistance with domestic activities leading up to the second revision and a decreasing need following the revision. He again deferred to care expert opinion as to the care required. In Mr Conlan's opinion, the Claimant was likely to require even more support in the six to eight months preceding the second revision procedure. The experts agreed that the Claimant would require decreasing help with personal care and domestic activities in the four months following the second revision operation, deferring to the care experts in relation to the type and frequency of assistance required.
The third revision
c. Mr Ashworth considered that the relevant period of pre-operative disruption relating to the third revision would be four months. In Mr Conlan's opinion, it would be six to eight. Both experts deferred to care expert opinion as to the increased need for care and assistance during that period, over and above the but for position.
d. During the post-operative period, the experts agreed that the Claimant would require help with personal care and all domestic activities, in addition to that which would have been needed in the but for situation, on a decreasing basis, over six months. Here again, they deferred to care expert opinion as to its nature and frequency.
Pain and pain-management
The experts agree that, in the run up to each revision, there will be no need for additional pain management, because the waiting list at each stage will be sufficiently short. The claim is limited to one for 10 private consultations, with a typical cost for an initial consultation of between ?250 and ?300, and follow-up consultations charged at ?200; a total sum of ?2,000 (to which the appropriate multiplier will be applied).
In Mr Conlan's view, pain management via access to a pain consultant will be required in relation to the Claimant's everyday living, maybe after the first revision, more probably after the second and so on until the end of her life, with rumbling pain secondary to the less satisfactory outcome. That would be pain which would not justify a revision but would, in Mr Conlan's words, 'cause the Claimant grief'.
Mr Ashworth's view is that any such pain will be adequately dealt with through the NHS, without the need for specialist private provision. He considered that a GP could provide common sense, first-line pain management, of the type which a pain consultant would provide. Many hospitals instructed General Practitioners to do so. Thus, it was only in the event that the Claimant would be unable to access a GP that an argument could be made for access to a pain consultant. Mr Ashworth acknowledged that, where private patients suffered from post-operative pain, they had access to pain consultants, though his personal experience was that such patients were nearly always knee replacement patients, who were at greater risk of experiencing chronic pain. With one possible exception, he could not remember having referred a hip replacement patient to a pain specialist ? certainly it would have been a very infrequent occurrence in his revision practice over the last 25 years. His opinion was that, if one looked hard enough, one could nearly always find the source of pain around a hip, being an area of his own specialist expertise.
Accommodation
The experts agree, for example, that bathroom adaptation (such as a walk-in shower) would be reasonable, if the Claimant were to purchase a property which did not have one. They disagree on whether single-level accommodation is warranted as a matter of course. In Mr Conlan's opinion, it is not that the Claimant ought to avoid climbing stairs per se, but that living on one level will be less tiring, minimise symptoms, potentially reduce the risk of premature implant failure and thus improve quality of life. Whilst acknowledging that nothing in the literature indicates that stair climbing is a cause of premature implant failure, he notes that the paper by Kang et al indicates a greater risk of implant failure in young patients as a result of wear debris. The forces going through the hip are greater when ascending and descending stairs than when walking on a level surface. Mr Conlan accepted that in the case of most patients who undergo hip replacement late in life, it is reasonable to overcome any temporary mobility problems by sleeping downstairs for a period of time, or, if necessary, by installing a stairlift, or a lift between the ground and first floors. The Claimant had, however, undergone multiple surgical procedures in her early years and had not, therefore, had the opportunity to enjoy a normal childhood. She would require at least three major surgical interventions, as a result of which her function and mobility would be very variable and become progressively less satisfactory. For those reasons, in Mr Conlan's view, it was not reasonable to expect the Claimant to have the indignity and inconvenience of having to sleep downstairs, use a stair lift, or to struggle more than she would have done to maintain her independence for as long as possible. Life would present greater challenges when she had a family. It was reasonable to support the Claimant in whatever way necessary to ensure that she experienced the best quality of life possible in the circumstances ? including by making provision for accommodation on one level. In Mr Conlan's opinion, it would be better for the Claimant to maintain a good level of fitness by participating in activities which she enjoyed rather than having no option but to repeatedly climb stairs when fetching and carrying. He would not, he said, go as far as to advise against using stairs when she was out and about, which would be totally impractical.
Mr Ashworth's view is that there will be no markedly greater need for single level accommodation than occurs in the general population with ageing, and that the requirement for single-level accommodation born of any complication which would markedly affect the Claimant's mobility and could not be resolved by remedial treatment or surgery was negligible. In the absence of a complication, he opined, such accommodation adaptation could not be justified for the short rehabilitation period which would be needed after each revision operation, estimated to be of four months. Prior to discharge, patients were assessed on their ability to use stairs, and additional rehabilitation was provided in hospital if that ability were delayed. In any event, any difficulty in negotiating stairs could be met by the insertion of a lift between the ground and first floors.
Mr Ashworth considered that ascending and descending stairs was physical exercise and, therefore, useful to assist in muscle strengthening. Yang et al (2024) reported that ' sensible stair climbing exercise in the postoperative period can achieve better clinical outcomes'. Unver et al (2015) stated that 'stair climbing is one of the important functional activities of daily living to maintain mobility and independence. Walking and stair climbing have been identified by clinicians and patients as critical functional activities before and after total hip arthroplasty'. In Mr Ashworth's view, it would have minimal, if any, impact on the longevity of an uncemented implant. Further, he considered it to be illogical to advise that the Claimant avoid stairs and steps in her own home, unless similar advice were given for when she was outside. There was no evidence for such advice in relation to uncemented hip replacements.
In Mr Ashworth's opinion, single-level accommodation would not be essential from an early age. He acknowledged the distinction between 'quality of life' and 'essential need'. He did not consider that single-level accommodation could be beneficial in later life. In Mr Ashworth's experience, the outcome of joint replacement at a young age was better than the outcome in older age, owing to other factors associated with ageing ? other joints beginning to ache; de-conditioning occurring with inactivity; and all other aches and pains which come with ageing. In his opinion, the Claimant would not face an inability to use stairs; any restriction would arise from temporary pain, or from surgeon-imposed limits on weight-bearing in the early period following a revision. He anticipated that stair use would be more difficult at around the time of the second and third revisions, anticipating that the peri-operative periods of reduced tolerance would be longer at that stage. He acknowledged that not everyone could maximise his or her potential by pushing through pain. On the basis of his own clinical practice, he was of the view that there would be roughly a 10 per cent chance of a temporary need for mobility aids arising at the age of 67, and a 50 per cent chance at the age of 82. Such a need was unlikely to occur at the first revision, the likely outcome of which the experts regarded to be good. In between surgeries, he considered there to be a benefit in using stairs. Whilst expressing a degree of sympathy with Mr Conlan's view that the Claimant should be freed from having a need to use stairs, Mr Ashworth's concern was that the more one avoided physical activity, the greater the risk of de-conditioning. As a de-conditioned muscle had to work harder, it could be more uncomfortable. There was no evidence that stair climbing caused premature uncemented implant failure. Kwak et al advised that it should be avoided during the early post-operative period, said to be about three to four weeks. Accordingly, there was a balance to be struck.
Work capacity / retirement
The orthopaedic experts agree that the Claimant will be able to work full-time until around the age of 60, with a need for time off and phased return at the time of each revision. They disagree as to the position beyond that age.
In Mr Conlan's opinion, having regard to the less satisfactory outcome of surgery in patients who have had multiple previous operations for DDH, the Claimant would probably need to work part-time between the ages of 60 and 65, and to retire at 65. In Mr Ashworth's opinion, she would be working full time until the age of 67, following which she would retire at around the time of her second revision operation, alternatively might need to reduce her hours and amend her activities in the four months leading up to that procedure. That opinion was said to be informed by Mr Ashworth's experience, over 24 years, of the recovery rate of older patients returning to light or sedentary occupations following revision surgery, including those who had had prior surgery as a child.
In Mr Ashworth's opinion, it was unlikely that the Claimant would need to work part-time prior to the age of 60, given that both experts were agreed that there would be a good outcome to the first revision operation. Similarly, Mr Ashworth disagreed on a likely need for the Claimant to retire at the age of 65, stating that, in his view, the degree of damage which had occurred to the Claimant's muscles was less than that assumed by Mr Conlan, on the basis that surgery performed through a posterior approach did not damage muscles to the same degree.
Domestic assistance
The experts agree that the Claimant will require?additional domestic support in the months before and after each revision operation , owing to the temporary loss of mobility, increased symptoms, and functional limitations associated with using walking aids during those periods. Their disagreement concerns whether the Claimant will require?routine domestic assistance outside the peri-revision windows. ?
Mr Conlan's position ? is that the Claimant ? will require such ongoing domestic support, considering that her ? multiple childhood DDH surgeries, and resulting?muscle scarring, weakness, and reduced flexibility will limit her capacity to perform heavier or more physically demanding household tasks on a routine basis. That broader functional vulnerability was linked to the increased likelihood of?fatigue and discomfort?during activities involving lifting, carrying, and bending, which he considered sufficiently burdensome to justify?continuing domestic assistance.
Mr Ashworth considered that the Claimant?would not require routine domestic support ? between revisions. Outside the identified peri-revision periods, the Claimant would be able to carry out the?majority of domestic tasks , with restrictions limited only to heavy domestic and gardening tasks , to be avoided by any patient in order to prolong implant life.
Mobility aids
The experts agree that the Claimant will require?walking aids around each revision procedure and that, immediately after each revision, she will need a?walking frame for the first few days , followed by?crutches for approximately four weeks , and then?one or two walking sticks for a further two to three weeks. It is agreed that, in the?lead-up to each revision , increasing symptoms of prosthetic failure will necessitate some use of walking aids. The principal area of disagreement concerns?how early and how extensively?the Claimant will rely on mobility aids?outside?those peri-operative periods.
Mr Conlan considers that the Claimant's childhood muscle lengthening, scarring, and?underdeveloped musculature, taken with the cumulative burden of?multiple revisions, will result in a materially earlier and more significant decline. In his opinion, the Claimant will probably require a?regular outdoor walking stick from about the time of the second revision ?beginning in her?late sixties to early seventies. He also considers it?probable?that she will require a?walking frame indoors and a mobility scooter outdoors?from?roughly 75 to 82 onwards, reflecting the compounded effects of surgical trauma rather than ageing alone, though he defers to expert care opinion on the Claimant's need for mobility devices in later years.
Mr?Ashworth?considers that, once the Claimant has recovered from the?first and second revisions, her longer-term need for mobility aids will be?only slightly greater than the rates applicable in the general population. In his view, after recovering from the?second revision, she will not routinely require mobility aids until?the period between the second and third revisions?(roughly, from her?mid-seventies to early eighties). He estimates that the additional lifetime risk of needing a stick is?no greater than five to 10 per cent above that of the general population, noting that population data indicate that around?25 to 30 per cent?of adults over the age of 65 use aids in any event. His views are informed by the Claimant's favourable early recovery, the good performance of her implant type, and the well-recognised effect of normal age-related de-conditioning.? Noting the rate of walking frame use in the general population to be nine per cent, he estimates a doubling of that risk for the Claimant from the age of 82, having regard to the multiple operations which she will have undergone by that age.
The experts agree that the Claimant will have a temporary requirement for a wheelchair around the time of each revision procedure, as part of her post-operative rehabilitation. During the weeks when her mobility will be most restricted, the use of a lightweight collapsible wheelchair will enable her to access the wider community whilst regaining strength and confidence. They further agree that family members will be able to assist with transport and handling, and that no home adaptations or vehicle modifications ordinarily will be needed for this short-term use.? In the event of a Girdlestone procedure, the Claimant would become?wheelchair-dependent both indoors and outdoors, owing to the substantial functional loss which follows excision arthroplasty.
The dispute concerns the?likelihood and timing of any longer term wheelchair use,?independent of a Girdlestone procedure. Mr Conlan considers wheelchair use in later life to be probable, even absent a Girdlestone procedure. In his view, from around?the age of 75 to 82 onwards (the period leading up to and following the?third revision), the Claimant will regularly need to use a wheelchair or a mobility scooter to access the wider community. In his opinion, that will not simply be an age-related progression but the predictable result of the Claimant's?surgically altered biomechanics, including muscle underdevelopment, scarring, cumulative surgical trauma and reduced functional reserve attributable to the childhood DDH interventions. He therefore regarded the need for longer-term wheelchair use as significantly greater than that which would ordinarily apply.?
Mr?Ashworth's view is that, apart from the temporary use around each revision, the Claimant's longer-term risk of needing a wheelchair is only?slightly higher?than the "but-for" risk in the general population. He cited statistics which indicated that approximately seven per cent?of older adults use a wheelchair. His opinion is based on his clinical experience of older patients who have undergone multiple revision operations and the Claimant's strong early recovery. In the absence of any literature to guide him, he considers that the multiple operations which the Claimant will have undergone will result in a doubling of the 'but for' need (the latter being three per cent) to use a mobility scooter outdoors.
Pregnancy, early childcare and back pain
The orthopaedic experts agree that the Claimant's risk of developing back pain in pregnancy exceeds the general risk by approximately 10 per cent and that any such pain should reasonably be treated by analgesia and physiotherapy. In relation to the latter, they defer to expert physiotherapy opinion.
Mr?Conlan considers that the Claimant's history of?multiple childhood surgeries, muscular under-development and scarring meant that pregnancy would have a?greater functional impact?than in a typical patient, giving rise to particular difficulty with heavier aspects of childcare. Although he accepts Mr Ashworth's position, in cases in which patients have?not?undergone multiple prior hip surgeries, he maintains that, in the Claimant's case, the musculoskeletal compromise created by earlier interventions will produce a?materially greater burden of pain and fatigability?during pregnancy and the postpartum period, requiring?additional support, especially in relation to the physical aspects of caring for young children.
More generally, Mr Conlan's view is that the Claimant will experience?predictable, recurrent back-pain flare-ups?throughout her life, centred on the?months before and after each hip-revision surgery, lasting?six to eight months pre-revision?and?four to six months post-revision, caused by gait disturbance, muscular scarring, and biomechanical strain resulting from her early DDH surgeries, and long-standing leg-length discrepancy which was only corrected by the THR in 2022.
Mr Ashworth's position is that the softening of tissue which results from hormonal changes in pregnancy will not affect the Claimant's prosthesis and will affect the soft tissues in the left hip almost to the same extent as those in the right. Nevertheless, he accepts that a patient with a prosthesis will be more likely to experience pain in pregnancy. He also acknowledges that the Claimant is more likely to experience back pain as a result of the surgical procedures which she has undergone, albeit that it is to be recognised that back pain is common in the general population in any event, as indicated by a study by Salari et al (2023), which reported a prevalence of back pain in pregnancy of between 63 and 74 per cent. He advises that the Claimant keep herself fit, through seeing a physiotherapist, yoga and Pilates, in order to maintain muscle strength and avoid fatigue, whilst considering that most patients who experience back pain and minor aches will manage their own affairs without support. Any childcare difficulty will relate primarily to?heavier childcare tasks, and even then only intermittently. The Claimant will otherwise be able to undertake early childcare duties.
More generally, there would be flare-ups of back pain at around the time of each revision surgery, and intermittently through life. Physiotherapy would be required at around the time of each revision. Flare-ups in the interim would be short-lived, as was the nature of back pain ? most would resolve within two weeks, give or take ? occasionally six. Anything which persisted beyond that period would require investigation and would be unlikely to be related to the Claimant's earlier problems. Mr Ashworth told me that, if the muscle were not strong enough, it would have to work harder and would feel discomfort, but accepted that tiredness had an impact on pain perception and that orthopaedic consultants were very aware that psychology had an impact on the outcome of surgery. Mr Ashworth did not accept that the Claimant's childhood surgical history would materially amplify back-pain frequency or severity outside the predictable discomfort associated with the months immediately surrounding each revision.
Travel-related accommodations
Mr Conlan's view?was that provision should be made for?extra legroom?on long-haul flights, following the first revision operation. That was rooted in the Claimant's reported history of?discomfort and numbness when sitting with her hips flexed for prolonged periods, which he considered that additional legroom would help to relieve by reducing hip flexion.
Mr Ashworth did not share Mr Conlan's view. In his opinion, the relevant discomfort and numbness would not be addressed by extra legroom; what was required was the ability for the seat to rake backwards, meaning that the hip would no longer be set at 90 degrees, but at a more obtuse angle which would relieve pressure on its front.
Mr Conlan considered that the Claimant?would require help with luggage, especially heavier suitcases. He linked this to the combination of?childhood muscle scarring, weakness, and reduced flexibility, which would make load-bearing tasks, including lifting, carrying, and manoeuvring luggage, increasingly troublesome, including outside peri-revision periods.
Mr Ashworth's position?was that, other than during the peri-revision periods, the Claimant?would not require assistance with luggage, to which the discomfort which she experienced when seated with her hips flexed was not relevant, because carrying luggage does not involve sustained hip flexion at 90 degrees, and the Claimant's symptoms during sitting are unrelated to the biomechanics of lifting or pulling suitcases. His evidence therefore implies that, whether travelling long- or short-haul, she can manage normal luggage without assistance.
The physiotherapy evidence
For the Claimant ? Ms Susan Filson
For the Defendant, Ms Sara Dickinson
Ms Filson qualified in 1978, starting her own group of practices in 1983 and continuing to consult locally and nationally. She has 37 years of experience as an expert witness. Ms Filson saw the Claimant on 16 June 2023, reporting in October of that year. In September 2024, she contributed to a joint statement, also signed by Ms Dickinson.
Ms Dickinson qualified in 1986. She specialises in trauma and orthopaedics. Since 1999, she has worked at a private hospital, predominantly treating in-patients and regularly supervising physiotherapy staff and students. Her responsibilities include day to day management of a predominantly orthopaedic and spinal surgery caseload. She has acted as an expert witness since 2009. Ms Dickinson assessed the Claimant in May 2023 and reported in February 2024.
Both experts were present throughout the oral evidence of the orthopaedic experts and of the witnesses of fact, following which they produced an addendum joint statement. As a result, the Claimant's needs were broadly agreed, and such disagreement as remained related to the way in which those needs ought to be met. The two issues remaining in dispute between them were: a) whether the Claimant will have a need for a personal trainer during pregnancy, and, if so, the number of sessions required; and b) whether it is appropriate to make provision for the cost of membership of a private leisure club, or for swimming sessions at a local leisure centre.
Pregnancy
Ms Filson told me that it was the evidence of developments since she had seen the Claimant which had informed some of the changes made to her recommendations. Recommendations relating to the physiotherapy required during pregnancy had been based on her experience of a particular young woman who had undergone a hip replacement, some two years prior to consulting her, and whose pain in pregnancy had benefited from kinesiology taping, some soft tissue work, and some advice on lifting and bending. It had not been based on any recommendation of Mr Conlan.
Ms Dickinson noted that there was very little that physiotherapists could do for people with pregnancy-related back and hip pain. Such advice as could be given was often available elsewhere, through midwifery services and in the public domain. Kinesiology taping, if desired, could be done by the patient herself and was not terribly efficacious for the relevant group of patients. In her opinion, swimming would be ideal, and more beneficial than adjunct taping and measures which would not alter the course of the pregnancy. Physiotherapy was not a number one treatment during pregnancy. The Claimant might benefit from postural advice, though Ms Dickinson thought it not reasonably required by most women who presented as the Claimant did. Lower impact stretching was likely to be helpful.
Personal trainer/gym membership/swimming sessions
Ms Filson's view was that the Claimant lacked motivation to undertake the exercise which both orthopaedic experts were recommending, on a regular basis. Accordingly, were Mr Conlan's evidence to be preferred, she recommended a personal trainer to assist with motivation. In cross-examination, having been taken through the exercise which the Claimant had shown herself willing and able to do without the assistance of a personal trainer, Ms Filson acknowledged that motivation did not appear to be an issue, nevertheless, on the basis of the exercises, Pilates and yoga which Mr Ashworth had recommended, she considered that gym classes would be beneficial. In order to join those classes at her local leisure centre, the Claimant would need to take out 'gold' membership, at an annual cost of ?708. Ms Filson considered that, if the Claimant were not feeling the cold when swimming at the leisure centre, she could continue to swim there, though a private leisure centre would be more 'conducive', where changing would be easier and the water warmer, bearing in mind the Claimant's susceptibility to the cold.
Ms Dickinson's evidence was that gold membership at the local leisure centre would not be a reasonable provision for the Claimant, who, as it seemed to her, did not need to be in the gym, or in fitness classes, or playing racket sports, nor did she reasonably require use of the spa, though she did need to swim. Both orthopaedic experts had recommended low impact sports, for which reason she would recommend shying away from fitness classes, racket sports and the gym. Swimming could be accessed as a standalone, pay as you go, facility.
Ms Dickinson's evidence was that exercise was everything within the first few days of the procedure. Thereafter, it was about getting back to a normal life, activities, stairs, getting in and out of a car, in and out of bed, into work, and on and off public transport etc, rather than the pursuit of exercise for exercise's sake. One could achieve normal function through normal function. Hip replacement patients ? even a few months after the procedure, and definitely after a year or two ? would not be doing hip exercises, per se, rather they would be going about their daily lives at work and recreationally; they did not need to be guided through a programme of exercise. The Claimant had acknowledged that the musculature in her legs had returned, that she was able to weight-bear more evenly on each side and that she had achieved physical fitness by getting up and getting on with things. Whilst, in order to make progress, she would have to go through more discomfort than would have been the case had she not had an artificial hip, over time that discomfort would recede. The best way forward was for a patient to be as normal as she could possibly be; the greater the normality put in, the more normal the joint would feel ? it was about picking up the threads of the normal activities of daily living. Ms Dickinson said that her advice to patients was that the procedure had been undertaken to liberate them, not to bind them to tedious exercises. Rather, exercise should be woven into what the patient would be doing anyway, even if that meant standing on one leg when brushing one's teeth, rather than becoming another task. It was the regularity of that which the patient did each day which mattered ? half an hour with a personal trainer or physiotherapist was neither here nor there. Ms Dickinson recalled the Claimant's evidence that she counted her activities 'as doing my physio'. In other words, she was applying the knowledge which she had gained on a day-to-day basis.
As to the need for a private leisure centre by reason of the warmth of the swimming pool, Ms Dickinson observed that any pool will be cool as one steps into it. The difference in temperature between a pool in a private leisure centre and the municipal baths was not known, but, as the Claimant's issue was with a single joint, there was no other limitation which would prevent her from being able to move sufficiently in the pool to keep warm. The recommendation for a pay-as-you-go swimming facility would enable the Claimant to fit swimming in around her work and leisure commitments. If fitness classes were more appealing to her, it was acknowledged that they would come at a cost, though yoga and Pilates might well not be included within private leisure centre costs in any event.
The care expert evidence
For the Claimant ? Ms Emma Benfield
Ms Benfield has worked as a clinical case manager and private case manager for 11 years and as an occupational therapist for 16 years. The weight of her clinical experience lies in dealing with elderly patients, including those having co-morbidities. The vast majority of her case management cases are complex orthopaedic cases in which she works with young, working-age, and older adults who have sustained high impact lower limb fractures. Ms Benfield saw the Claimant on 12 July 2023, at which stage she had had access to Mr Conlan's prognosis and recommendations, but not to any material from the Defendant, reporting in October of that year. The joint statement which she wrote with Ms Lawson was signed on 18 September 2024. On 8 December 2024, having listened to the evidence given in court to that date (or, in some cases, read the transcript of it) they prepared an addendum joint statement.
Both in the joint statements and in oral evidence, Ms Benfield acknowledged certain errors in her approach, suggestive to me of some lack of attention to detail. Her ultimate recommendations for aspects of the care which she had originally recommended (such as live-in care at around the time of the first and second revisions, and care needs outside the peri-operative period from the age of 75) were abandoned or conceded. That Ms Benfield modified her view upon careful reflection is to her credit but the number of areas in which she did so suggested an overarching approach which sought to maximise the provision to be made, or, at least, to assume a worst case scenario rather than that which would arise on the balance of probabilities having careful regard to the evidence of the medical experts. Perhaps the starkest example of that approach was her recommendation of the need for single-level accommodation from the earliest stage, notwithstanding her evidence that the Claimant was ' absolutely safe on her stairs and fine on her stairs in the house where she is living currently'. Other examples were the recommendation of a specialist profiling bed, in the absence of evidence that the Claimant will have difficulty getting in and out of a standard bed, and her recommendation for two carers (one of whom living in) at the stage of a third revision, absent evidence of any associated orthopaedic need proffered by Mr Conlan other than in the event of a Girdlestone procedure. All of that indicates that her evidence needs to be approached with care and a degree of circumspection, where the recommendations made are not agreed.
For the Defendant ? Nicola Lawson
Ms Lawson assessed the Claimant and produced her report in February 2024, later contributing to each of the joint statements. She has 30 years' experience as an occupational therapist, having a particular specialism in hand injuries and serious hand traumas. Albeit that she has in the past worked as a case manager and continues to advise case managers on care packages, she no longer works in that role. I found Ms Lawson to be a measured and careful witness whose recommendations were rooted in the evidence.
The areas of dispute
Future care
Albeit that I received a considerable amount of evidence on the subject of past care, by the end of the trial only future care needs remained in dispute, the evidence about which I summarise below.
Ms Benfield's recommendations
Ms Benfield noted that she had revised her initial recommendations having regard to the evidence of Mr Ashworth and of the witnesses of fact. She and Ms Lawson had provided costings on the alternative bases that each orthopaedic expert's evidence was preferred. Were Mr Ashworth's evidence to be preferred, she and Ms Lawson were in broad agreement in respect of the initial revision surgery but further apart in relation to the surgery which would be required at the ages of 67 and 82. In that scenario, Ms Benfield told me, the Claimant would have much better functionality and a better symptomatic outcome than Mr Conlan was anticipating, which would lead to a reduction in her care needs. Both sets of costings had been provided on the assumption that there would be no complications ? she had not, for example, been asked to cost on the basis of a prospective Girdlestone procedure.
Ms Benfield said that the focus of an occupational therapist was on promoting independence, full activity and quality of life. Where one was working outside the NHS, the approach adopted for best results was the enablement approach, using a combination of equipment and care. In connection with the first revision, she had recommended three months of care, whereby a carer would come to the house twice a day, which she appreciated to be a lot when compared with a standard elective hip replacement, but the focus of that care would be on enabling the Claimant to build her confidence, to provide some hands-on assistance, if needed, and then to reduce it so that there was supervision at the end of it. Care would encompass supervision, fetching and carrying. Ms Benfield stated that, as an occupational therapist in the NHS, she would never put a care package in place for three months, which could neither be justified nor would it be right. However, in the Claimant's case, both orthopaedic experts had stated that recovery would be prolonged and more arduous by reason of her surgical history, and it would be very difficult to predict what she would be doing in 23 years' time. Ms Benfield considered that her approach would enable the Claimant to build her confidence and become independent at a faster pace. In her opinion, the provision which she had recommended was not critical but was advised and beneficial as a fair, appropriate package of care.
Ms Benfield's view was that the provision of two hours of domestic assistance a week, once the Claimant had moved out of her parental home, would not prevent her from needing to undertake domestic tasks for herself, particularly having had a family, but would allow her to pace herself, thereby managing fatigue, and a quality of life which would promote independence and enable her to focus her energy on meaningful occupation and activity. That opinion, Ms Benfield told me, had been based partly upon her assessment of the Claimant in July 2023, and partly on the evidence which the Claimant had given at trial of the fact that two full days' work would require her to take a day off by reason of exhaustion. In other words, fatigue and pacing ? in Ms Benfield's terminology, a boom-and-bust pattern ? remained problematic for her, which, in Ms Benfield's opinion, had an impact upon her quality of life, function and independence.
The care experts are agreed that, following the first revision surgery, there will be a period of recovery during which overall care needs will diminish to a point where they become non-existent. In addition to the two hours' a week of domestic assistance for which Ms Benfield has made provision, she recommends 24 weeks of personal care and domestic assistance from agency carers, who would attend twice a day, morning and evening, for three months prior to, and three months following, surgery. Ms Benfield stated that, were the Claimant to have a supportive partner at home at the time of her first revision surgery, when she was experiencing pain and symptoms of implant failure, that partner might cook a meal and would probably do some fetching and carrying. Having worked out the care needs, and because she could not know what the Claimant's social situation was going to be, she had transferred those needs into a package of care, comprising some assistance with personal care in the morning, probably some meal preparation at night, and some fetching and carrying. In her view, there was no choice but to cost for commercial care, as it was not possible to know the circumstances in which the Claimant would find herself 23 years in the future. Essentially, the provision made was for the activities which would be carried out by a caring, supportive partner of someone in pain, with fatigue, or who had had a bad day. Ms Benfield noted that, if she, as a care expert, considered there to be a care need which a supportive partner would meet, that need would be reasonable, irrespective of whether it was provided commercially or gratuitously, and she would not consider it to be excessive. She would still expect the Claimant to make a meal and drive to work, but was assuming that assistance would be required, especially at the beginning and the end of the day when her hip would be more painful. Ms Benfield noted that she had based her recommendation on the understanding that the Claimant would be symptomatic and likely to be in pain and experiencing increasing fatigue in the three months prior to her revision surgery, albeit that she had no personal experience of dealing with pre-operative patients in such circumstances. She agreed with counsel that, in a case such as the Claimant's, care would not be provided by the NHS following discharge after a first revision at the age of 47. She would be reviewed by a physiotherapist and occupational therapist before leaving hospital, to ensure that she could manage stairs, was mobile and could undertake transfers, though, in Ms Benfield's view, a lot of people were discharged before being ready to go home.
Ms Benfield stated that the difference between the experts in relation to the care needs surrounding the second revision operation was essentially the same as for the first, acknowledging, as before, that, if Mr Ashworth's evidence were to be preferred, the Claimant's care needs would reduce. She accepted that Ms Lawson's approach (see below) was reasonable. Ms Benfield noted that she and Ms Lawson had each provided agency rates (one of which included travel, the other costing travel separately) which would meet the Claimant's needs.
Ms Benfield was also of the opinion that provision ought to be made for a full-time live-in carer to accompany the Claimant on a two-week holiday, at around the time of each of the first two revision surgeries, whilst agreeing that it was highly unlikely that she would choose to travel, certainly on holiday, during the periods around either revision. In essence, she stated, she had made provision on the basis that the Claimant's hip might fail at an earlier stage than had been anticipated, at a time when work or family commitments might, nevertheless, require the Claimant to travel abroad, acknowledging that provision was to be made for the Claimant to be away from work in the run up to the first revision; that the Claimant's case was that she would retire by the age of 65 (and I interpose to note the orthopaedic experts' view that she would retire before the second revision); and that any travel for the purposes of, say, a family wedding would be likely to take place in the company of family members. Even then, Ms Benfield's position was not that live-in care would be required per se ? rather that the difficulties of sourcing a temporary care package abroad would make travelling with a live-in carer the only practicable option. Gratuitous care would be the most reasonable and proportionate way of meeting her needs, but its availability could not be predicted or guaranteed.
Ms Benfield's costing of care at around the time of the third revision surgery (being for two carers, one of whom a live-in carer and the other an agency carer who would assist with safe transfer) for a year had been carried out adopting a worst-case scenario. She accepted that Mr Conlan had not opined that the Claimant would require two carers at that point. She acknowledged that the Claimant's mobility at that stage in her life would be unpredictable and that live-in care might be justified were she to be unable to transfer independently, or to mobilise for short distances within her home, albeit that there was no evidence of that from Mr Conlan, who had considered the possibility that the Claimant might require a powered scooter, or wheelchair for outdoor mobility. Ms Benfield also acknowledged that there was no evidence that the Claimant would be unable to use a commode at night. She stated that the care package which she had recommended would be appropriate 'for the rare chance that the Girdlestone procedure might go ahead', but also on the assumption, shared by Ms Lawson, that the Claimant's care needs would increase substantially. In Ms Benfield's view, her recommendations had been based on quality of life and her experience as a case manager, particularly for much older clients, to the effect that an extensive package of agency care could be disruptive and chaotic, such that provision for a consistent carer would provide a better experience and would be fair and appropriate. Ms Lawson's recommendation she considered to be unreasonable, in having made no provision for night care, in circumstances in which, adopting a worst-case scenario, the Claimant's mobility would be unpredictable. Were Mr Ashworth's opinion to be preferred, however, she and Ms Lawson were agreed as to the costs of reasonable agency care.
Ms Benfield also recommended some proactive case management, born of the needs which the Claimant was likely to have, especially at the ages of 67 and 82, with a view to optimising outcome. That recommendation was made in addition to the separate provision made for occupational therapy and agency care, and acknowledging the Claimant's prior experience of the relevant form of surgery and her likely associated needs. Ms Benfield's rationale was the position, adopted by both orthopaedic experts, that each surgical period would be more challenging, such that rehabilitation and recovery would take longer and be more complicated. By the age of 67, the Claimant would not have had surgery for a period of 20 years, during which time things would have moved on such that she might require some recommendations. She would also require physiotherapy, and, possibly, some psychological support, both of which ideal for case management, for two reasons ? the first being the sourcing of effective practitioners, and the second being communication with all professionals involved during the recovery period to ensure that she was recovering and rehabilitating well. It was to be borne in mind that the Claimant would be older at the time and might have other health challenges.
In Ms Benfield's opinion (adopting Mr Conlan's prognosis), in addition to the occupational therapy required at the times of revision, such therapy would be required in the event of deterioration between surgical procedures. In that event, an occupational therapist would undertake a functional assessment and explore whether any compensatory interventions could be made, in the form of additional equipment, for example. In the event that Mr Ashworth's opinion were preferred, Ms Benfield and Ms Lawson were agreed as to the additional occupational therapy which would be required.
Ms Benfield had made provision for podiatry at a cost of ?30, compared with Ms Lawson's allowance of ?18.50, the latter assuming its provision by a local clinic. Ms Benfield agreed that the clinic which Ms Lawson had costed was appropriate.
Ms Benfield had also made provision for a profiling bed, having the capacity to lift the occupant's head and knees ? designed for use by someone unable to sit up in bed herself ? from the age of 47 onwards, and on the assumption that Mr Conlan's evidence was preferred. Her stated rationale was that it would accommodate the Claimant during her more difficult, as well as her better, periods. Nevertheless, Ms Benfield accepted that there was no evidence that the Claimant would be unable to get in and out of a standard bed at the time of any revision operation.
Ms Benfield recommended that the Claimant be able to access level accommodation from the point at which she commenced independent living, a recommendation which she considered to have been shared by Mr Conlan. She acknowledged, however, that, as matters stood, the orthopaedic evidence was that the Claimant did not need to avoid stairs and that it would be good for her to use them. Nevertheless, she was of the opinion that, from the point at which the Claimant acquired her own long-term accommodation, it should afford her the ability not to use stairs, should she be going through a difficult period. That opinion was based on the fact that she would have three quite extensive periods during which, at best, stairs would be painful and uncomfortable, and also on the Claimant's projected fatigue and functionality, in eight years' time, when she would be working, with up to three young children. A young toddler would be difficult to carry up and down stairs and single-level accommodation would provide her with the option not to use stairs, were she to be in pain or having a bad day. Ms Benfield stated that she did not think that the Claimant should ever not use stairs and that she was absolutely safe on the stairs in her current accommodation. She agreed that the need which she had identified could be addressed by the installation of a through-floor lift, albeit that she would defer to accommodation experts on that point.
Ms Benfield supported as reasonable Mr Conlan's opinion to the effect that the Claimant was likely to require greater assistance than would normally be the case during each pre- and post-partum period. Her view was that, functionally, strain on the Claimant's left hip when mobilising, bending, lifting, and reaching whilst pregnant, or post-partum, would increase her care needs, therefore recommending an increase in paid domestic care by one hour per week for those periods and advising that domestic and housekeeping tasks be covered, in addition to three months' childcare assistance post-partum, with lifting, carrying, fetching items, and helping to change and care for the baby. In Ms Benfield's opinion, that would help to reduce the Claimant's need to flex or extend her hip at the extreme ranges of motion and would assist her in the event of pain and difficulties with fatigue and mobility.
Ms Lawson's recommendations
Ms Lawson acknowledged that the aim of effective rehabilitation was to achieve maximum possible independence, by use of various techniques, aids, equipment and practices. She further acknowledged the need to ensure that all necessary exercise was undertaken by the patient, recognising that it may not be possible to achieve full recovery, and the associated need to ensure appropriate support in that event. Ms Lawson stated that she understood there to be a difference between the compensatory principle, whereby reasonable restitution was to be made, and that which was reasonably required from a medical perspective ? between reasonable provision for quality of life, and essential need for rehabilitation, though she considered quality of life to be a subjective question. Her approach had been to cost for that which she regarded to be necessary by reason of the Claimant's medical condition, rather than for things which would enhance her quality of life.
Ms Lawson stated her strong belief that there was no physical disability which would prevent the Claimant from undertaking light daily chores, which ought to be encouraged to maintain a normal daily routine. Whilst she did not consider that anyone could say that any existing discomfort would disappear in the space of a year, she considered that she had been quite fair in the level of care which she had recommended for each revision surgery and ongoing following the second revision. If the Claimant were experiencing discomfort after undertaking four-hour shifts, she did not see that any support with domestic activity of two to three hours per week would make any difference. She considered that the care which she had prescribed was that which the Claimant would need, and that it had exceeded that which she would have prescribed to any other person ? were she to treat somebody in the NHS, that person 'wouldn't get anything like that', she said. Ms Lawson acknowledged the difference between NHS and private provision, but considered that her recommendations for pre-and post- care per revision remained generous, even by the standard of the latter. Her view was that it was not necessarily the case that there would be periods following the first or second revision when the Claimant would be unable to use stairs. She would be seen by a physiotherapist, prior and subsequent to surgery, and would be advised on the appropriate technique, though there would be some discomfort associated with stair use in the initial stages, and there might be some pain and fatigue for a short period following her immediate recovery from surgery.
Ms Lawson also understood that there would be a general decrease in the Claimant's abilities between the second and third revision operations. She considered that the only disadvantage of a through-floor lift over single-level accommodation was that it would occupy more space, recognising that such a lift had the capacity to break down and might not be used in the event of a fire. She accepted as fair Mr Matthews' proposition that it was not ideal for an elderly person who had limited mobility to be reliant upon a through-floor lift. She further accepted that, with age-related degeneration and multiple hip replacements, single-storey accommodation towards the time of the third revision operation would be beneficial in terms of quality of life and access, particularly in the event of an unsatisfactory outcome following one of the earlier revisions, though she was not of the view that it would be necessary. She did not consider that it would make sense for accommodation of that type to be provided at an earlier stage, being of the opinion that accommodation could be adapted as and when the Claimant's needs changed; that the Claimant should be encouraged to use stairs, as a normal activity, on a daily basis; and that provision of single-level accommodation at an earlier stage would remove that physical activity.
Ms Lawson disagreed with Ms Benfield's provision for any future care provided by a live-in carer, rather than by agency staff, considering that recommendation to be disproportionate to the care which was likely to be needed. A carer living in the property would be very disruptive of family life and privacy. There was a benefit to agency care provision. There were set times when the carers would come in to undertake certain tasks. The fact that care might be provided by different carers was beneficial in the event that one carer was unwell ? flexibility which was not afforded by live-in care. Whilst agency carers would not be available other than at the times arranged, the orthopaedic evidence in the Claimant's case did not suggest that she would be unable to mobilise within a home environment, such that there was no functional reason why she could not get up to make herself a sandwich or a cup of tea in between care visits, even if that were to cause her extreme pain in a post-revision context.
Ms Lawson stated that her emphasis had been on maintaining the Claimant's independence, not on substituting that with care. Encouraging the Claimant to be as active and independent as possible and to live a normal life could easily be done by the provision of occupational therapy and equipment, as included in her report. That would provide her with choice because she would be able to undertake tasks at a time of her choosing, whereas, on Ms Benfield's approach, some of the cleaning chores would be undertaken only at the time at which cleaners attended. Ms Lawson acknowledged that, at around the time of the Claimant's revision surgeries, she would require some assistance with cleaning, at a recommended level of four hours per week, accepting that she would be reliant on gratuitous care from her family for the balance of the time (estimated to be two hours per week), for which she would not have had to ask but for her injury. Such care would be for lifting a delivery which she would struggle to lift, but for which there would be no urgent requirement, but would not be required on a daily basis such that a commercial carer would be needed.
Following the first revision operation, Ms Lawson had allowed for daily post-operative personal care, household cleaning and domestic tasks, shopping and delivery services, as well as two hours per week of gratuitous care from a partner or family member. She considered that, as the Claimant would be able to drive within a couple of weeks of surgery, she would be able to give lifts to any children whom she might have had by the age of 47, and, in any event, that the children could be transported within the two hours of gratuitous care for which she had allowed.
Ms Lawson agreed that it was possible that the overall effect of aging, in conjunction with the hip replacement, would be likely further to inhibit the Claimant's ability to engage in domestic care. She considered that any such difficulty would not arise until the second revision, accepting that it could do so at an earlier stage, but adopting Mr Ashworth's opinion on that matter. Similarly, she had made provision for domestic assistance from the time of the second revision, at which there was likely to be a more significant impact of aging. She accepted that it was possible that things would become more challenging for the Claimant from somewhere between the ages of 67 and 82.
196. Ms Lawson considered it reasonable to allow for 16 weeks of transport by taxi at the time of the first two revision operations, and deferred to the Court as to whether Ms Benfield's recommendation of an allowance of ?150 per week was appropriate ? it was difficult to judge, she said, because where the Claimant would be living and which hospital she would be attending at the relevant times could not be known, recognising that she was unlikely to be living next door to a private hospital. I did not understand Ms Lawson to agree that taxis for other purposes would be required, or that the Claimant would be unable to drive at all during each 16-week period ? indeed, her evidence in a different context was that the Claimant would be able to drive within a couple of weeks of having surgery. Mr Ashworth's opinion on that matter (as set out at section 7.7 of the orthopaedic experts' joint statement) was more cautious: '?around the time of recovery from the revision the Claimant could return to driving a few weeks more rapidly were she to have access to an automatic car instead of a manual car.'
Ms Lawson stated that she disagreed with the provision of case management. The care which she had identified was agency care which was very easy to source through a Google search and the Claimant was familiar with the functions of a physiotherapist and an occupational therapist, most of whom could be found online.
The only surviving difference between the care experts regarding the provision of occupational therapy was whether there should be three or four sessions at a time of deterioration in mobility, somewhere between the second and third revision operations. In Ms Lawson's view, the additional session would not be required because the advice would not change. She also disagreed with Ms Benfield's provision for a profiling bed, being one which was height adjustable and elevated the individual to a sitting position if that person had difficulty transitioning from lying to sitting ? there was no indication that the Claimant would have any difficulty with transfers in and out of bed and most beds were of a height which would be reasonable for use by a person of average height. Her evidence was that profiling beds were recommended for those patients who required care, mainly when hoisting, enabling a carer to put the hoist underneath the bed or to raise the bed to a level at which the patient could be bathed in bed ? they were not intended for use by a person who did not have any difficulty with transfers.
As to pregnancy, Ms Lawson's opinion was that the equipment which she had recommended would meet any need born of a flare-up of back pain and other symptoms at that time. It was her understanding that hormonal changes in pregnancy would affect any woman and that most women would experience difficulty with bending down and breathing when walking uphill during the third trimester, for which reason she did not foresee that the Claimant's pregnancy would be any different from any other.
Areas of agreement
Both care experts were of the view that provision ought to be made for an automatic car, at a cost of ?1,500. Ms Benfield's earlier contention that a wheelchair-accessible vehicle would be required, should the medical opinion of Mr Conlan be preferred, melted away in the course of her oral evidence. The need for a boot hoist, a scooter, a swivel seat, and (subject to their purpose and cost) taxis over a 16-week period surrounding each of the first and second revisions were agreed, such that there was no remaining issue between the care experts surrounding future transport costs.
In relation to holidays, the care experts agree on the need for a luggage-carrying service, at an annual cost of ?226. Ms Benfield was of the view that the Claimant, whose height is five feet four inches, also required provision of ?100 a year for additional legroom, again in the event that Mr Conlan's evidence were preferred, but noted that that provision did not reflect the exercise of independent judgement on her part. Similarly, the cost of taking someone with her would arise only in the event that the Court assessed the Claimant to have such a need. The same would be true of the furnishing costs associated with any need for live-in care, at a time when the Claimant was 82 years old.
The psychiatric evidence
For the Claimant ? Dr Rachel Gibbons
Dr. Gibbons is dual-trained in psychiatry and adult medical psychotherapy. She examined the Claimant on 7 August 2023, reporting in October of that year. She contributed to a joint report dated 27 August 2024. She was present in court throughout Mr Ashworth's evidence and read the transcripts of the evidence of fact.
In Dr Gibbons' opinion, the Claimant has three separate conditions: Complex Post-Traumatic Stress Disorder ('CTPSD'), resulting from the multiple surgeries which she has had from a very early age, said to be ongoing and at a moderate level; recurrent mild to moderate anxiety and depression, following a four-year episode of moderately severe depression (between 2018 and 2022); and an iatrogenic codeine dependence, also at a mild to moderate level, over two separate periods, amounting to approximately 30 months, now in remission. As set out at paragraph 69 of her report, those diagnoses are said to be according to the ICD-11 [1] criteria for diagnosis, the evidence for which documented in section B4 (corrected in oral evidence to read 'B3') of her report.
Dr Gibbons considered there to be a profound aspect of the case which appeared to be missing, being the mind-body link. In her opinion, the Claimant had suffered quite significant early trauma which would have affected the development of her mind as well as her body and would have a long-term and profound impact on all aspects of her life. Complex and difficult aspects of psychological injury would affect health, well-being, pain, and functioning, however, if one engaged well in therapeutic work, there was the possibility that a better outcome would be experienced.
Dr Gibbons considered that the Claimant required psychological and psychiatric input which, if received, would improve her physical outcome. Albeit that significant childhood trauma could not be undone, it could be mitigated, through therapy.
Dr. Gibbons said that her opinion was based on the information with which she had been provided by the Claimant, on the medical records and on her clinical examination of the Claimant. In her opinion, self-harming from the age of 11 or 12 until the age of 18, as the Claimant had done, was a sign of complex post-traumatic stress, being something which affected personality development, every aspect of the person's life, and relationships. Acknowledging that she did not suggest that all of the symptoms set out at paragraph 31 of her report had been suffered by the Claimant throughout the full period to which her diagnosis related, Dr Gibbons told me that the condition would have manifested itself for the first time in the Claimant's primary school years, when, on Dr Gibbons' understanding, the Claimant had not enjoyed school, had felt isolated, 'like the girl in the wheelchair', and that it had not been easy to get on with other people. That would have affected all of her relationships and her capacity to engage in schooling and would certainly have had an impact on subsequent surgeries, which would have been re-traumatising, and her attitudes to them. In Dr Gibbons' opinion, the Claimant would not have developed that condition but for the events which had given rise to these proceedings. She told me that she found it very, very odd that Dr Denman did not see what she considered to be really significant indicators of ongoing complex post-traumatic stress, such as 'seven years' of self-harming; substance abuse; difficulties in relationships; immense guilt; and difficulties concerning the burden on others, which were ongoing and affecting all aspects of her life. She considered that the Claimant was deploying psychological defences as part of her disorder; that there had been a level of denial and avoidance ? in essence, she had been putting on a brave face and trying to avoid engaging with, or had been minimising, the emotional impact of events on herself, which it was easy to assume reflected the reality. The mixed messages indicated that to be the case ? for example, at one point the Claimant had told Dr Gibbons that she had nearly died, which had been very frightening, before describing the event as 'a bit concerning'. There had been points at which one could catch a flash of the true impact, before it was minimised, said Dr Gibbons, though she acknowledged that the phenomenon had not been mentioned either in her report or in the joint statement.
In cross-examination, Dr Gibbons was taken through the diagnostic criteria for CPTSD in the ICD?11 classification on which she had relied in her report. It was first suggested to her that there was no evidence of re-experiencing as that term had been defined in the guidelines, whereby the traumatising event was not simply remembered but experienced as recurring in the here and now, in the form of vivid, intrusive memories or images, flashbacks, or repetitive dreams or nightmares thematically related to that event. Dr Gibbons considered that such evidence did exist, though she acknowledged that she had not included it within her report. She told me that, having gone to court and looked at an awful lot of documentation and thought about it, the quality of her evidence had deepened and that she had greater clarity. She considered that the Claimant did experience flashbacks, though symptoms were less clear where the traumatic events occurred very early on in life, at a pre-verbal stage. In Dr Gibbons' opinion, the Claimant experienced flashbacks in the sense that she panicked when going into hospital, which re-triggered very early experiences, together with the disassociation symptoms experienced. Those were aspects of being flashed back into an early primitive state of anxiety, she told me. She said that, at the time of writing her report, she had 'felt in some ways that the argument internally wasn't strong enough; that [she] didn't go into fine detail.' In Dr Gibbons' opinion, a panic attack is triggered by a flashback into a memory; the two are not distinct issues. She also noted the Claimant's mother's evidence to the effect that the Claimant would cry on most days when going to primary school. She considered that, when an individual has developed CPTSD from early trauma, s/he does not develop classic symptoms of post-traumatic stress in the same way as would someone who has had those experiences later on in life, and that, in her view, that was documented within ICD-11, under the heading 'Developmental Presentations'. In her opinion, young people, particularly children, did not express depression in the same way in which adults expressed it ? emotional distress was expressed through their behaviour ? wanting to stay at home and not wanting to go to school. Both were manifestations of anxiety and a sense of dread at going into that environment with its relational difficulties.
It was also put to Dr Gibbons that there was no evidence in her report of hypervigilance or enhanced startle reaction in the Claimant's case. Acknowledging that she had not included it in her report in those terms, and that she had not considered it right to go into that in the joint statement, Dr Gibbons considered there to be such evidence, whilst stating her view that the structured exercise of going through each criterion set out in ICD-11 was non-sensical because, in practical terms, she had taken a holistic view of matters having considered the evidence, the history of the patient, her examination of that patient, and the various records which she had read, rather than having gone through a checklist in order to diagnose the particular condition. She considered the diagnosis which she had made to be that which most clearly fitted, but that it was not perfect.
Against that background, Dr Gibbons considered there to be evidence of avoidance of psychological input by the Claimant, that is of emotional engagement with her experience. Albeit that the Claimant had referred to finding counselling beneficial and indicated an interest in having more of it, Dr Gibbons was not sure that the Claimant had seen very much of the counsellor, and also observed that being referred to CAMHS was a very difficult experience for young people. She noted that the ICD-11 criteria referred to differences in presentation where the condition occurred in adolescence. Dr Gibbons acknowledged that, throughout the Claimant's time at university, she had had good family relationships and friends, and that she had a current boyfriend. It was put to her that, in those circumstances, the Claimant did not experience persistent difficulties in sustaining relationships and in feeling close to others. Dr Gibbons opined that the Claimant remained very vulnerable to feeling abandoned and that the past was never quite the past. She stated her belief that the Claimant would need psychological treatment to ensure the best outcome in her relationships and that psychiatry was not about putting 'perfect containers around people' ? there was no other diagnosis which contained the sorts of difficulty, following profound developmental difficulties, which the Claimant had.
Referring to the recurrent depressive disorder, from 2018 onwards, which she had diagnosed, Dr Gibbons observed that the condition did not present in somebody who has had early complex trauma in the same way as it did when trauma was experienced as an adult. Depressive symptoms of early trauma could include self-harming and negative self-affect. The diagnosis was not perfect but was the best one, using Dr Gibbons' experience and expertise, which would illustrate the difficulties for the Claimant, and which treatment might help going forward. Asked the basis upon which she had rejected Dr Denman's diagnosis of a single period of moderate depression, from late 2022, which she considered to have resolved by early 2023, Dr Gibbons stated that that had been at a time when the Claimant had emerged into adulthood and could then display classic depressive symptoms. At a younger age, depression would have manifested itself in different ways, including in self-harm. That being so, there was no inconsistency in the Claimant's level of activity and engagement, including socialising with others, whilst at university.
For both CPTSD and depression, Dr Gibbons recommended psychodynamic psychotherapy. Whilst considering that treatment to be evidence-based, she appeared to acknowledge that it was not included in the NICE guidelines for the treatment of either condition, albeit that variants developed from it (such as mentalisation-based treatment) were included. In any event, she told me, the NICE guidelines were not based upon the most up-to-date evidence. Dr Gibbons considered that the weekly therapy over a period of two years which she had recommended would not preclude the Claimant from getting on with her life; it would help her to negotiate her difficulties. The six to 10 sessions of CBT which Dr Denman had recommended, were the Court to accept Dr Gibbons' diagnoses, would not, in Dr Gibbons' opinion, 'even touch the sides of [the Claimant's] difficulties', nor would they mitigate difficulties in the future. That was because they would not get to her underlying difficulties. It would be like a sticking plaster; useful ? everybody should have a bit of CBT ? but not able to get to the deeper trauma with which the Claimant needed to engage for her recovery. Were she to have significant psychological treatment at this stage, it might well improve the outlook for her pain and function in the future. That was because people used their bodies to express their emotional state, and their bodies used them. For example, people with depression would often suffer from chronic pain as well. They might feel more achy, a position which was much more extensive in those with complex trauma, such as the Claimant. So, in part, the pain would truly be greater for the Claimant and the pain sensors in her body more active, such that she was more sensitive to stress owing to the trauma which she had experienced. Processing her emotions cognitively and symbolically (ie being able to think through the cause of the pain), through psychological therapy, would take some of the pain out of her body and enable her body to relax, because emotions are first experienced somatically. In short, it was Dr Gibbons' view that the Claimant would experience less pain, and would cope better with such pain as she experienced, were she to have the psychological interventions which she (Gibbons) advocated. If anything, Dr Gibbons considered that she might have underestimated the therapy which she had proposed and that the Claimant might more suitably be treated in the personality disorder service.
Doctor Gibbons and Dr Denman agree on the risk of relapse. In her report, Dr Gibbons opined that the Claimant would have an episode of depression whenever she required a physical intervention, such as a hip replacement or other operation. In her view, the Claimant would require 20 sessions of psychological treatment per relapse, estimating around six relapses in the course of the Claimant's lifetime. By the time of the joint statement, the number of sessions recommended per relapse had increased to 30 and there was an additional recommendation of 'at least 30 sessions' whenever the Claimant had any physical intervention in the future. She rejected Dr Denman's suggestion that therapy fuelled resilience and provided tools with which to manage a low mood, such that, on each relapse, one would not need to go back to the beginning, rather to have a top-up of three to five sessions, stating that it would be a reasonable position to adopt on the assumption that the Claimant did not have significant deep complex trauma, but would not be a reasonable approach on the basis of the diagnoses which she had made.
Dr Gibbons accepted that there was no evidence of self-harm after the age of 18, but noted that the Claimant had then moved into opioid dependence, and so had managed her emotions and significant distress in a different, equally dysfunctional, way. Noting that Dr Denman's opinion was that the early period of self-harm, at which point the Claimant had been referred to CAMHS, had been due to an adolescent friendship which had de-stabilised her and for which the appropriate diagnosis was an adjustment disorder of six months' duration, in Dr Gibbons' opinion most adolescents experienced friendships which did not function, or broke up, and which were de-stabilising, but did not end up in CAMHS for self-harming. If it were the case that there had been a degree of peer influence, that would give rise to two considerations ? first, one self-selected one's friendship groups, such that, if one formed a friendship with an individual who was self-harming, or had suicidal ideation, that was because there was a degree of resonance; secondly, self-harm carried with it a lot of shame ? it was very rare for parents to know very much about it at all, such that the fact that it had come to the attention of the Claimant's parents was indicative of its severity. Whilst, in general terms, there was a 14 per cent rate of such behaviour amongst adolescent girls, it was very transient, as opposed to established and entrenched, and did not result in referral to CAMHS. Dr Gibbons acknowledged that the Claimant had never been re-referred to CAMHS, or referred to any other mental health service. She considered that the Claimant had conveyed to her that, as a result of profound body boundary violations arising from her surgery and scarring, self-harming was a reasonable response ? that she had a relationship with her body whereby it did not matter to her because she had such large scars anyway; that her body was not her own.
For the Defendant ? Dr Francesca Denman
Dr Denman is a consultant psychiatrist and psychotherapist. She prepared two reports in connection with these proceedings, the first in July 2023, following her examination of the Claimant the previous month, and the second in February 2024, following her review of additional documents. She also contributed to the joint statement, dated 27 August 2024.
As at July 2023, Dr Denman considered that the Claimant was not diagnosable with a formal mental health condition but that she had had three periods of time in the past when she likely had had a diagnosable mental health problem. The first of those had been in 2013, when she had had a period of self-harm and had been referred to CAMHS. Dr Denman considered the best diagnosis for that to have been an adjustment reaction which had lasted for about six months. The second had been in 2018, when the Claimant had had 'a short period' of harmful use of opioids, and significant withdrawal symptoms when she had stopped taking that medication. The third had occurred in late 2022 and the early part of 2023, when the Claimant had been withdrawn and had felt unable to work or leave the house by reason of pain. She had lacked motivation, even after recovery from surgery. Dr Denman considered that she had likely had a depressive illness, since which time her symptoms had reduced in severity and, at the time of her report, had been below the threshold for diagnosis.
When reporting again in February 2024, and by reference to the material then available, Dr Denman stated that she remained of the views expressed in her earlier report. She considered that the Claimant's harmful use of opioids had been a direct consequence of their availability to her at the time, and of the surgery which she had undergone. It was said to have been an episode of iatrogenic drug misuse which the Claimant had resolved as soon as she had recognised what had been going on and its consequences for her. Dr Denman's view was that the depressive episode had been a consequence of the slow failure of the Claimant's hip surgery, in 2018 and subsequently, and had resulted from a combination of the pain, disappointment, and uncertainty which had preceded her THR. She considered that she (Denman) had underestimated the probability of a further relapse of depression in her previous report and that the combination of a depressive episode and a chronic and continuing difficulty related to the problems in the lifespan of the Claimant's hip replacement set her risk of relapse in the 75 per cent range.
By the time of the joint statement, Dr Denman acknowledged that the iatrogenic codeine dependence which both experts agree to be in remission had been of a 30-month [2] duration. She stated her view that the adjustment disorder which the Claimant had suffered in 2013 had been of mild severity, as had the opioid dependence. The former was more likely to have been related to difficulties with a friend than to hip problems. The depressive episode had been of moderate severity. The opioid use and depressive illness were directly attributable to pain and disability in the Claimant's hip.
In oral evidence, Dr Denman confirmed that the combined period of iatrogenic codeine dependence had been 30 months. She stated her view (inaccurately recorded in the joint statement) that the Claimant had had repeated surgeries and a disability as a child, which would have conditioned her experience and personality development, as part of her life. The issue was whether they had been necessarily detrimental, and, if so, to what extent. In Dr Denman's opinion, the Claimant had emerged remarkably unscathed, sometimes referred to as a 'steeling effect', whereby an individual feels that life is going to improve, having managed to get through, and, in some ways, been strengthened by, a really bad patch in life, which formed a part of her memories and experiences. Dr Denman had read the transcript of the Claimant's evidence, though had not been present in court when that evidence had been given. The only new information to have emerged, she said, was that the Claimant had more recently been to her doctor having felt 'rough' and had been prescribed Sertraline, which she had chosen not to take, instead having counselling and being placed on a list for cognitive behavioural therapy ('CBT'). Dr Denman considered that information to be consistent with her opinion of what had happened in this case, in which a young woman had had a rough time in relation to deteriorating physical symptoms; pain; disability coming back from surgery in 2018, which had not 'fixed' her; and then enduring a THR at a time when 'the booster rocket after university has got to fire, and it is time to leave home and have a career', instead of which she had been thinking about her surgery, unable to leave home and becoming depressed. The issue was how to move on from that.
Dr Denman said that she did not share Dr Gibbons' view that the Claimant had suffered from CPTSD from the age of three. That was a condition, contested to some extent, which had made it into the diagnostic schedules relatively recently and which attempted to describe a group of individuals who suffered from post-traumatic stress disorder ('PTSD'), but also displayed a range of other symptoms which, in the past, would have resulted in that group being labelled as having a personality disorder ? a particularly stigmatising label with which people found it difficult to live. CPTSD attempted to do justice to the early adversity which results in a combination of symptoms one half of which are of PTSD (intrusive and anxious phenomena), and the other relating to relationships and emotional stability (emotional dysregulation; difficulties in relationships; and, to some extent, impulsive behaviour). The condition was one which Dr Denman recognised and for which she had treated patients. She said that it was tough to treat and that, in her experience, patients with that condition were a lot more unwell than was the Claimant, but also had PTSD symptoms to start with, describing flashbacks; intrusive phenomena; and traumatic avoidance. In Dr Denman's opinion, those symptoms were not present in the Claimant, such that the Claimant did not qualify for the diagnosis. Her diagnosis of depression was consistent with the symptoms which she had detected, and depression would be 'a very classic diagnosis' for pain, difficulty, surgery and an uncertain future. Dr Denman told me that her diagnosis had taken account of the Claimant's self-harming. The Claimant had told her that she had started self-harming when quite young, at a time when she had been very influenced by someone at school, and that there had been an improvement when that influence had gone away. Without minimising its nature, it had not been self-harm of the very, very worrying nature which Dr Denman saw in her practice, which caused profound, deep scarring, often hidden. It was consistent with feeling frustrated, irritable and unable to settle, of a kind commonly reported by 14% of adolescents ? definitely a sign of distress, but not indicative of a particular condition.
Dr Denman agreed that everything which an individual thinks and does is an expression of his or her physical nature; that mood influences the amount of pain which someone is likely to experience; and that the pain experienced itself influences mood. She said that she was aware that there was a group of psychiatrists and psychologists who believed that experiences write themselves on the body and are encoded within it, which, in her view, was not an evidenced-based opinion and from which it was very hard to draw a simple line to state that mending the mind would mend the body, or vice versa. She accepted that, at the centre of modern pain management practice was the connection between mind and body and the importance of treating both. The most common cause of pain was injury to the body. Most of us feel pain. How we feel it, how much we feel it, and how much it gets us down, is what the Army would call a matter of morale, she said. Helping people to boost their morale, better manage their pain, and not engage in pain-prone behaviours was central. The evidence was that boosted morale did people good and made them report improved quality of life, but there was no evidence that it improved their pain rating, as distinct from improving their ability to cope with the same level of pain. That mind-body connection was well understood to be important in managing pain and managing in life.
Dr Denman's opinion was that people emerged from early experiences of adversity weaker, stronger, or the same as before. Consistent with an evolutionary view was the need to have developed psychologically and physically capable of handling pain. That was not to say that things did not go wrong ? some people emerged from early traumatic painful childhoods very damaged; some with a steeling effect; and some with a variety of effects which went in a number of directions. But Dr Denman was not convinced that there was a necessary connection between early traumatic childhood and subsequent medical ill-health. It was an association, not a necessary connection. To some extent, it would depend upon how the individual and those around him or her dealt with early trauma. Acknowledging that the Claimant had told Dr Gibbons that her experiences had had a big impact on her life, Dr Denman considered that to have been as much by reason of the social effect of having been in a wheelchair and of other children having had to make accommodations for her; and having been a bit worried about being left out in social situations. She was not sure that the effect had been generated by the painful operations, horrible though they had been.
In Dr. Denman's view, the Claimant manifested distress about what was happening to her at the time at which she was having a chronic health problem. Her actions were indicators of the level of distress, as a small child, associated with her medical condition, but they were not indicators of trauma ? they were exactly how one would expect a child who felt a bit awkward and out of place owing to her physical health problems to feel. There was a distinction to be drawn between adversity and trauma. The Claimant had experienced early childhood adversity, and, at an earlier stage, when having operations, trauma. The more serious and prolonged the trauma, the more likely one is to show signs of serious ill health as an adult. The traumatic set of operations and socially adverse childhood would predispose the Claimant to develop PTSD; a personality disorder; depression; schizophrenia; and a list of other mental health conditions, all of which associated with early adversity in childhood, but they did not predict that she would do so, and, in Dr Denman's opinion, those conditions were not present in the Claimant as an adult ? Dr Denman saw an adult who had had depressive illness and an opioid dependence problem, and had self-harmed as a child. She had told doctors, 'It doesn't matter that I've got scars on my arms because I have huge scars from the surgery'. In Dr Denman's view, that sounded a bit angry, defiant and hopeless all at once, but the Claimant's account as given to her, and, she thought, to Dr Gibbons, had been that she felt quite strongly that she had fallen under the influence of a girl at school, which had formed a big part of her self-harming. That accorded with the evidence concerning self-harm, which was what psychiatrists called 'a culture-bound syndrome' ? distressed activity but also sometimes running as a bit of an epidemic through schools, though it would not be reasonable to suggest that pain from the Claimant's hip had not been a factor. Acknowledging that it was also a possibility that one sought out friends with whom one had commonality of experience, Dr Denman questioned the weight to be attached to events which were quite common in childhood and noted that one must also consider that it might have been an independent event. With the help of her mother, the Claimant had demonstrated resilience to adversity as a teenager.
In cross-examination, Dr Denman acknowledged the possibility that she had lost her sense of balance as an expert, and that there had been nothing else in the Claimant's childhood which would have predisposed her to mental health difficulties. Her evidence was, 'I think, had she had a normal hip, Dr Gibbons and I, insofar as we agree, definitely would agree that she wouldn't have developed the codeine dependency ? that would have been gone; I don't think she would have developed the depressive illness that I say was there; and I am quite willing to concede that she would have been less likely to self-harm, except to say that children with no adversity in their backgrounds do self-harm, sometimes?There is the friend?Unless you think that that friend was sought out, as it were ? 'deliberately' is the wrong word ? that people with similar sorts of adversity are attracted to one another. Well, I just think friendship is so idiosyncratic ? who could say why people like each other?'
Dr Denman told me that she disagreed with Dr Gibbons' approach, whereby where there are symptoms, they are said to be attributable to the horrific nature of surgery, and where there are no symptoms, they are considered to have been masked and repressed, also attributable to the horrific nature of the surgery. One had to be careful about deciding that something was present, and that if one cannot find it, it must still be present, because that was to adopt a circular approach.
Dr. Denman recognised Mr Ashworth's surprise that the Claimant had not made greater progress than she had done by the date of trial. She also recognised that the Claimant had been to see her GP, been offered Sertraline, gone to see a counsellor and was on the waiting list for CBT, all of which marked a change from the position when Dr Denman had examined her, when the Claimant had told her that she did not think of herself as having a mental health problem. Dr Denman said that one does not go to see a GP, receive a prescription for Sertraline and join a waiting list for CBT if one has not now come to think that one has a problem. That independent psychiatric evidence told her that the depressive symptoms which had not been present when she had interviewed the Claimant were back, or had never completely gone away, and that it was tough to claw back from having been to university and returning home, but she did not think that it provided evidence for a diagnosis of CPTSD. In Dr Denman's opinion, her view in May 2023, that the Claimant's depression had resolved, had been born of the fact that it was almost certainly a fluctuating state, and not because her approach at interview had been superficial. She accepted, however, that she had not dug far enough into the period of the Claimant's opioid dependence, as to which she had revised her view in the joint statement. Nevertheless, she considered that the Claimant had a tendency to put her best foot forward. Whilst it was probably fair to say that she put on a brave face, Dr Denman's evidence was that she was a bit less comfortable with saying that the Claimant minimised things, because she had struck her as somebody who had high levels of resilience. Whilst she was over-optimistic, the word 'minimising' implied some sort of driven activity, requiring her not to speak of things, which had not been the way in which the Claimant had come across to her.
Dr. Denman considered there to be a real issue over whether, if one pushes oneself physically, that is denial, as opposed to pushing the envelope; wanting to do things; getting on with them and then maybe doing more than one is physically able to do. Denial was a term of art in some forms of psychiatric thought, which implied that what one was doing was motivated by another need not to face some inner truth, which she was not sure to be the case for the Claimant. She did accept that the Claimant was probably someone who did more than her body could perhaps sustain at the relevant point, and who then paid the price for doing so. She did not accept that there appeared to be a degree of dysfunctionality in the Claimant's presentation.
Having regard to the ICD-11 diagnostic criteria for CPTSD, Dr Denman accepted that there were matters specifically related to the modified presentation of the condition in children and adolescents. Her evidence was that one had to satisfy the criteria for PTSD, on top of which one had to show other features, in order to support a diagnosis of CPTSD. The developmental presentations related to how one might display problems with affect regulation, being one of the additional features required for a diagnosis. The issue between the experts was Dr Denman's view that the Claimant did not qualify for a diagnosis of CPTSD because she did not display the features of PTSD to begin with, onto which, as she put it, other things may be piled. There was licence within the diagnostic criteria in relation to children and adolescents, but it did not extend to finding symptoms of PTSD. One might decide to depart from the ICD-11 criteria, but, if using them, they did not afford that licence, which related to the ways in which the additional symptoms might vary. Dr Denman did not agree that Dr Gibbons' overall diagnosis was the best fit available for the Claimant's condition.
In Dr Denman's view, the Claimant experienced periods of feeling very low, rather than of mood swinging (the latter incorporating feeling high, on top of the world, and maybe grandiose plans), which she considered to be a symptom of depression. Acknowledging that the Claimant had periods of feeling very low and that Dr Gibbons considered that she had emotional numbing, not all of the examples within the diagnostic criteria were present, and, in Dr Denman's opinion, the overlap was much stronger with depression. That which Dr Gibbons had described for negative self-concept was central for depression. There was no evidence of disturbances in relationships.
Dr. Denman also did not accept the proposition that, as the Claimant's physical difficulties receded, psychological or psychiatric difficulties would be likely to manifest themselves, hence her visit to the GP in the Autumn of 2023. In her experience, clinically, when people's lives improved, those difficulties got better, rather than worsening. She considered that the Claimant had gone downhill because everyone else around her ? her university friends ? had been getting on with life, had jobs, had left home, and had got moving, such that the gap between her and her peers had been widening. Dr Denman did not see that as a manifestation of an early problem, rather as a current one.
Dr Denman said that she differed quite strongly from Dr Gibbons' recommended treatment plan. In her (Denman's) view, whilst a psychodynamic therapy could be helpful in cases in which there were complex relationship entanglements, or for individuals who wished to gain a certain kind of self-knowledge, it was not an evidence-based treatment for depression or PTSD. She would not support its use as a first line treatment for those conditions even if she had considered them to be present. She noted the Claimant's expression of interest in therapy, which could provide support were she to feel that she needed help as she adapted to her newly increased mobility and worked through getting started in work and independent life ? something which would be more difficult for her, as she had lost the window of time in which young people were often together in their last year of university and able to chat and exchange ideas and support one another as they moved forward.
To that end, Dr Denman said, she would consider it reasonable to provide the Claimant (were she to want it) with a burst of solution-focused or other problem solving orientated therapy, by way of support, rather than with formal mental health treatment, and that it should be time-limited and structured. At most, she would recommend six to 10 sessions. In addition, she thought it wise to make reserve provision for psychological treatment, in the event of a relapse of the Claimant's depression, and thought that the Claimant would be an excellent candidate for CBT, which had a good evidence base in the treatment of depressed mood. In Dr Denman's opinion, the Claimant would need about 10 to 15 sessions of treatment with an appropriately qualified practitioner at the time of a first relapse. Dr Denman noted that the object of therapy was to provide resilience and tools for managing low mood, meaning that, were provision to be made for more than one relapse, there would be no need to repeat all of the treatment, though there was some evidence for top up therapy (a block of three to five sessions) in the event of a second, and additional relapses. She also recommended contingent provision of 10-15 sessions, to be drawn on as needed.
The accommodation evidence
For the Claimant ? James Nocker
Mr. Nocker is a surveyor, who, for a period exceeding 30 years, has advised on the accommodation needs of disabled individuals across a spectrum of disability. He is not a member of the Royal Institute of Chartered Surveyors, considering that never to have been a necessity, and that the Institute did not entirely grasp what surveyors did in the disability adaptation and assessment world, such that he could not be pigeon-holed into being a valuation surveyor, a building surveyor, or a quantity surveyor. His first report was dated October 2023. The first joint statement to which he contributed was dated 11 October 2024. A further joint statement, informed by the evidence by then given at trial, was prepared on 10 December 2024.
For the Defendant ? Gavin Hill
Mr Hill is a chartered architect, who prepared a report dated February 2024. He subsequently contributed to the two joint statements. His evidence was that he had experience of assessing the reasonable needs of individuals within a development scheme, and oversaw the work of a team of architectural technicians, though it did not form the mainstay of his practice.
The accommodation experts' evidence was extensive and heavily contingent upon my findings of fact and my conclusions in relation to the expert evidence of other disciplines. It is, therefore, convenient to summarise and consider the relevant accommodation evidence later in this judgment, having first set out those findings.
Analysis of the evidence
The Claimant's presentation as a child and adolescent
From a time seven weeks after the Claimant's surgery in February 2006, the medical records speak of a young girl whose life was not then significantly affected physically, by her DDH or by the procedures which she had undergone to that date. At that stage, not only had she not been complaining of any pain or tenderness, but she had been walking and running normally, and, clinically, had had full range of movement. The Claimant herself considered her left hip to have been more or less normal at that stage. That state of affairs persisted at the next follow-up, in October 2006, when it was recorded that she could walk and jump normally and squat; had an excellent range of motion; and was very happy with the results of the operation. The positive picture continued through to April 2007, when the Claimant was noted, on review, to have been walking normally, without a limp; playing sports in PE; able to run, jump, squat, and do pretty much everything which other girls did, having a pretty full pain-free range of movement in her left hip, with the osteotomy site having healed well. It was not until 13 May 2009, that the Claimant's inability to sit cross-legged on the floor was noted, by which stage she was nine years old, albeit that her own recollection in evidence was that that had been an issue during her early years of primary school. It is not at all surprising that someone who has been through as many surgical procedures and medical appointments as has the Claimant, and from a very early age, will not always accurately recall the timing of each experience, and it underscores the importance of testing recollection against the available contemporaneous clinical records.
The discomfort in the Claimant's hip and the limitation in movement progressed slowly over the next few years, as the Claimant herself acknowledged. In January 2011, Mr Bradish noted that there had been no deterioration since their previous encounter, some 18 months earlier, and that she was experiencing occasional left hip discomfort which was not limiting her activities. X-rays revealed that her left hip remained well-contained. The Claimant's account of that period described a lack of flexibility by comparison with her classmates.
In March 2013, Mr Bradish recorded the Claimant's awareness of intermittent clicking in her left hip and some stiffness when she first got going, but that she retained a very satisfactory range of movement, albeit that she was 1 to 1.5cm shorter on the left side. The Claimant herself accepted Ms Power's proposition that, over the years which followed, there had been a slow but gentle increase in her symptoms. In September 2014, she was noted to have been doing fairly well, albeit that she would experience pain in her groin for about a day after walking for about a mile or so. She was said to be walking with a normal gait, and the recommendation was that things ought to be left as they were at that time. The Claimant accepted as fair Ms Power's characterisation of the position as it then stood; that things were beginning gently to deteriorate but that she was doing fine and the recommendation was to watch and wait.
On review in September 2015, the Claimant was found to have been walking with a normal gait, with all movements of the hip on the left side being slightly reduced by comparison with those on the right. Notwithstanding the signs of femoroacetabular impingement at that time, she was described as having excellent function, with a recommendation that she be kept under surveillance and reviewed in 12 months' time.
At her next review, in September 2016, it was noted that the Claimant continued to progress well and had a normal gait, a good range of movement, and no restriction in her activity. She complained of occasional deep pain around her left hip after long walks and it was noted that pain was exacerbated by the impingement test. Her GP was asked to refer her for physiotherapy and the next review in clinic was scheduled to take place in another year's time. The Claimant's evidence was that, by 2016, she had been experiencing a dull, intermittent pain in her left hip and surrounding muscles after trying to stand and walk for shorter periods of time, and had needed to rest partway through her shifts at Nando's.
It was in September 2017 that the Claimant was referred to RNOH. The referral letter alluded to pain after two hours of activity. Records in November 2017, nevertheless, referred to her normal school and college life, recording that she would take simple analgesia, when required, and had needed to modify her activities.
Thus, it had been from late 2016 onwards that life had started to become more difficult for the Claimant, from an orthopaedic perspective. The account given by her mother of the Claimant's physical difficulties in the period up to that point was, in parts, difficult to square with the recorded picture as summarised above. Once again, it is not at all surprising that Mrs Lynch's recollection of her daughter's childhood, regularly punctuated as it had been by surgical procedures and reviews, does not entirely accord with the contemporaneous clinical records. Where the two materially diverge, I have preferred the latter. I reject the suggestion that each such record simply reflected a snapshot of the way in which the Claimant had presented on the particular day (a matter explored, on a generic basis, in cross-examination of Mrs Lynch), for the following reasons. First, the records themselves reveal consideration of the wider position at each stage, and of the activities of which the Claimant had been capable and/or in which she had been limited. Secondly, there is no indication that the Claimant's parents at any time challenged the accuracy of the position, whether as contemporaneously relayed by the Claimant to each clinician and/or as recorded on review. Thirdly, it is, I find, inherently unlikely that all of the various experienced clinicians who had made a record over the relevant period would have done so by reference only to a superficial snapshot analysis, particularly in light of the Claimant's medical history. The records indicate that, on each review, a history was taken from the Claimant of her subjective experience and a clinical examination then undertaken, with the findings arising from the latter being recorded. They also note, for example, that her parents were happy with proposals which left 12 months until the next follow-up. As the Claimant's mother acknowledged, it was she who had been the source of the recorded history at a time when the Claimant had been too young to provide her own account. Each appointment had lasted for approximately half an hour, allowing time for detailed discussion and examination, and it is inherently unlikely that a person who had a progressive condition would present with significantly greater function on the day of each clinical review than she would typically otherwise have and demonstrate. I have no doubt that much of the Claimant's progress was the product of her own stoicism and determination, and of the considerable assistance and encouragement provided by her loving parents throughout her childhood and adolescence, but I am satisfied that it was not until late 2016 that the Claimant began to experience flaring pain at a level and in circumstances which began to affect her day-to-day activities.
The Claimant's time at school
It is clear that, at primary school, the Claimant was aware that she was different from other children, though, here again, it is necessary to approach her own evidence and that of her mother regarding her school experience with a degree of caution, having regard to the records made of the information relayed to clinicians at the time. By way of example, the Claimant's account in evidence of having encountered difficulty, during the early years of primary school, in sitting cross-legged on the carpet was contradicted by the clinical records which first recorded that problem at the age of nine. Given her acknowledgement in evidence that her hip had been 'more or less normal' in April 2006 and the full range of movement recorded by the clinician at that time, school activities were not then presenting her with difficulty. A year later, the Claimant's participation in school activities, doing 'pretty much everything that other girls do', was not indicative of isolation at that time. The same is true of the position as recorded a year later.
Allowing for slow loss/decrease in range of movement from 2009 onwards, in 2011, it was noted that she was experiencing occasional left hip discomfort which was not limiting her activities. I accept that reduced flexibility by comparison with her classmates will have affected the Claimant's ability to participate in some of the physical activities in which they engaged and that, where that was so, she will have found that to have been somewhat isolating, but the picture painted by her medical records is difficult to square with unhappiness born of an inability to participate at school, or with her mother's evidence that she would cry every morning and that her parents would be obliged to force her to go into primary school each day. On balance, I consider that, with the passage of time, Mrs Lynch has come to remember her daughter's unhappiness at primary school as having been greater and more persistent than the contemporaneous evidence suggests it to have been.
I accept the Claimant's evidence regarding her inability fully to participate in PE, in 2013, and her mother's account of the lifts which she had provided to and from school and social activities at around that time.
In the context of the Claimant's then physical presentation, I have considered the competing explanations respectively advanced by Doctors Gibbons and Denman for the period during which she had self-harmed, which had commenced at the age of 13 (and not, as recorded by Dr Gibbons, at the age of 11 or 12). I note that the Claimant's own account to Dr Denman was that she had been very influenced by someone at school and that there had been an improvement when that influence had gone away. That was consistent with Dr Denman's evidence regarding a 'culture-bound syndrome' and with the agreed incidence of self-harming in the general population. I further note the multi-factorial account recorded by Dr Handysides in July 2014, including the Claimant's parents' account to her of other stressors which had then been affecting the family. I do not minimise the distress which the Claimant's self-harm indicated, and I acknowledge Dr Denman's position that it would not be reasonable to suggest that hip pain was not a factor, but I note that Dr Denman also referred to the likely effect of the social awkwardness which the Claimant had experienced as a result of her condition. I bear in mind the Claimant's own evidence as to her then fear of the surgery to come, and lack of confidence in her body. On the balance of probabilities, I do not consider the timing of the onset of the Claimant's self-harming to indicate any greater physical pain or limitation of function than was recorded in the orthopaedic medical records relating to that period. I shall return to the issue of self-harm in greater detail later in this judgment, when considering the wider expert psychiatric evidence.
By the end of the Claimant's time at secondary school, in 2015, the notes record excellent function and that she was not limited by her hip. Once again, that is not suggestive of significant physical difficulty during her school years.
The Claimant's college and university years
I have set out earlier in this judgment the position as it developed from the time at which the Claimant went to college, and, later, university, as to which there is no real dispute. In so far as material to the issues which I shall need to resolve, I accept as accurate the account given by the Claimant, her family and friends of their experiences over that period.
The Claimant's clinical progress post-THR and projected position as at November 2025
The medical records indicate that the Claimant's early surgical procedures did not preclude her from engaging in normal activity as a child, so as to stimulate muscle development, being one of the concerns said to explain a number of aspects of Mr Conlan's opinion as to her likely trajectory as an adult, to November 2025 and beyond. Whilst I note that he and Mr Ashworth agree that there will have been reduced muscle development in earlier life, I am mindful of Mr Ashworth's evidence that the later MRI scan had revealed the Claimant's muscles to have been near-normal, albeit reduced in volume, and, in any event, of his view of the Claimant's evidence at trial regarding the 'return' of her leg muscles and improvement in her weight-bearing capacity, indicative, in his opinion, of the capacity to rehabilitate muscles to compensate for any lack of development at an earlier stage.
Even in November 2017, the Claimant's medical records had referred to a normal school and college life, albeit with some modification of activities, and to the use of simple analgesia, when required, to relieve the pain which she had then been experiencing. There is no dispute over the increasing pain and symptoms which she experienced thereafter and which ultimately resulted in the osteotomy which she underwent in July 2018, but, as Mr Conlan acknowledged, on the whole a femoral osteotomy would not have too much effect upon the muscles, and the modern approach to a peri-acetabular osteotomy involved much less damage to muscle than would formerly have been the case. X-rays in 2007 had shown the earlier osteotomy site to have healed well. Mr. Ashworth described the 'muscle protecting' approach which had been taken to the later periacetabular osteotomy. Considered as a whole, the evidence does not indicate that muscle scarring as a result of surgery during and prior to 2018 itself had a significant adverse or enduring impact upon the Claimant's musculature.
Furthermore, notwithstanding his cautious approach and opinion on childhood muscle development and scarring born of multiple operations, Mr Conlan shared Mr Ashworth's view that the Claimant was doing better than would have been expected following her THR. Both experts noted an absence of deterioration and an expected continuation of recovery until November 2025. Mr Conlan acknowledged the benefits of a ceramic femoral head and titanium socket, and the caution with which literature dealing with older implants ought to be approached. He shared Mr Ashworth's view that the Claimant had passed through the initial period of risk for early failure of the implant through infection or dislocation, and acknowledged that there was no direct evidence of poor implant orientation; or reduced bone quality (the latter, in Mr Ashworth's unchallenged opinion, being of no significance, if present, in any event). He recognised that the Claimant had seen the benefits of perseverance and activity and that she was a very positive person, who always strove to make the most of her life. He acknowledged that her priority was to optimise her function and musculature, so far as possible. He further acknowledged that, particularly following surgery, hip function is, in general, optimised by using the hip and by building up the surrounding musculature. He accepted that the Claimant would and should be very active, in particular as a young woman, which would build muscle function and conditioning and thereby reduce the prospect of wasting in later life. The view of both consultants was that the Claimant would have a near-normal recovery but might experience discomfort when walking longer distances and would be symptomatic were she to push herself too far ? she would lead a near-normal life.
Whilst Mr Matthews sought to make much of Mr Ashworth's revision of his view of the Claimant's position, from 'the upper end of good' to, simply, 'good', I do not consider that it bears the weight, or ought to incline me to the conclusion, which he urges. 'Good' Mr Ashworth defined to mean an outcome whereby the patient could do pretty much everything desired or needed and was making the expected progress, at the appropriate rate for the timeframe. That was consistent with his opinion of the Claimant's trajectory. The fact that an expert witness revises his opinion to accommodate the evidence of fact which he considers to be material to his view is to his credit and indicative of his clear recognition of his duties to the court; I reject, without hesitation, Mr Matthews' submission that Mr Ashworth was seeking to advance an argument, rather than to give his professional opinion based upon all available evidence as it appeared to him to stand at the date of trial.
Mr. Ashworth's opinion as to the Claimant's recovery potential was rooted both in her presentation and subjective experience at various stages subsequent to her THR, and in her clinical history and results on examination ? near normal musculature as apparent from the MRI scan; the fact that, from an orthopaedic perspective, surgery to her femur had been mild and had not had a huge impact on her mobility; the 21-year period over which she had been able to recover from her 2003 operation; and the muscle-protecting approach to her peri-acetabular osteotomy. He also took into account his wider experience of patients who experienced residual pain, and the Claimant's 'admirable' approach to that date. Viewed collectively, that evidence inclined him to the view that, by November 2025, the Claimant was more likely to be at the better end of function and ability, whilst acknowledging that she might have residual, 'nuisance-level' discomfort with longer distance walking and greater physical activity. Mr Ashworth defined 'nuisance-level' to mean not an intrusive problem; rather an awareness. On the balance of probabilities, he considered that the Claimant had the potential to work full-time, with minimal discomfort when walking longer distances, which might occur at the end of a long day on her feet. Cold sensitivity, generally relatively mild, again described as 'nuisance level' and which people lived with, was something which he had seen in his patients ? whether it could be improved, he said, was outside his area of expertise. Acknowledging that, to some extent, his opinion was based upon his assumption that the Claimant was committed to achieving her potential (an assumption which I find to be warranted by her determined approach to date), Mr Ashworth's evidence was that it was also based upon his experience of patients who had lived with the relatively minor issues which she had described, who had told him that they could do pretty much everything which they wanted to do.
I also bear in mind that the Claimant's own description of pain in her right hip at the date of trial was of 'just some mild cramping' (and, in any event, I note Mr Ashworth's evidence that focal anterior dysplasia in one hip is associated with dysplasia in the other ? consistent with the appearance of the Claimant's right hip on the MRI arthrogram to which reference is made at section 2.7 of the experts' joint statement ? and that the Claimant would have experienced discomfort in the 'but for' scenario, with Mr Conlan deferring to Mr Ashworth's expertise in relation to the impact of focal anterior dysplasia in an adult). Similarly, the Claimant's evidence of the numbing which she experienced when lying in a certain position for an extended period was that it had not changed in consistency and that she tried not to let it limit her anymore. She said that she liked to think of herself as incredibly determined. She is right to do so, having demonstrated a remarkable, consistent and persistent determination and ability to study, and to work in a number of roles including at the time of trial. All of that is consistent with 'nuisance-level', as that term was defined by Mr Ashworth, being the appropriate description of her symptoms.
I do not lose sight of Mr Ashworth's acknowledgement that, at the time of the prognosis which he had given in August 2023, he had anticipated that the Claimant would be doing more and better than her evidence at trial would suggest to have eventuated. I acknowledge that that might affect her forward trajectory and/or give pause for thought as to the justification for Mr Ashworth's confidence in his prognosis as at the date of trial, but I also take account of his opinion of the effect of the Claimant's undoubted commitment to achieving the best potential outcome, and his experience of patients who have lived with relatively minor issues and have informed him that they can do 'pretty much everything' which they wished to do (see above). He prescribed maintaining fitness, and, with it, muscle strength and the avoidance of greater risk of deconditioning and associated discomfort, a position from which Mr Conlan did not demur, albeit that both experts recognised the balance to be struck.
On balance, having regard to the Claimant's progress and presentation as at the date of trial; her own account of her symptoms as they then stood; the evidence of limited muscle-scarring arising from earlier surgical procedures; the subsequent rehabilitation of her musculature and her level of activity; her demonstrated track record of resilience and determination to overcome her difficulties ? which, as Ms Filson acknowledged, indicated no lack of motivation to engage in the requisite type and level of exercise; and Mr Ashworth's considerable clinical experience of the activity of which people are capable, in my judgement, his prediction of the position as at November 2025 is to be preferred to that of Mr Conlan.
The relevance of the position as at November 2025
Whilst both experts were of the view that the position as at November 2025 would inform the projection for later life, Mr Ashworth was at pains to stress that, by far the bigger factor influencing longer-term outcome was the success rate from surgery, and the risk of any complications, which had been agreed for each revision to be, respectively, five, 10, and 20 per cent. The starting point as at November 2025 he considered to have a minimal effect in comparison with the agreed risks. Thus, if that starting point were in fact to be less good than he was projecting, it would affect the longer-term consequences only minimally in comparison with the other risks. One could not predict accurately, or in a straight line, based upon the starting point, he said. He further noted the potential for a reset at revision, barring a complication, particularly if a patient did not wait too long before presenting when symptoms of deterioration occurred. He remained steadfast in that view when challenged on it in cross-examination, and I accept it, informed as it was by current and extensive clinical experience, including in relation to the type of implant which the Claimant has. The personalised nature of modern implants also lends confidence in the prothesis which the Claimant has received, as does its wear rate of less than 0.1mm per year.
It follows that the limited difference between the orthopaedic experts regarding the extent of predicted recovery as at November 2025 was itself of limited significance to the level of risk attaching to each of the three revisions which it is agreed that the Claimant will require in due course. The real issue is whether sparing activity at an earlier stage, with a view to reducing or avoiding some discomfort and/or fatigue, will itself lead to de-conditioning, thereby reducing the extent of recovery and increasing the prospect of greater difficulty for the Claimant in later life and in connection with each revision surgery.
As to that, the experts were in agreement that, from about November 2025 and whilst the Claimant continued to live with her parents, she would probably not notice any significant ongoing weakness or discomfort in her left hip when undertaking the usual relatively light activities of daily living. That was notwithstanding the 'troublesome' symptoms which Mr Conlan had identified and which had inclined him to a more pessimistic prediction of that which the Claimant would be likely comfortably to manage as life went on. There is, I find, a tension between Mr Conlan's recognition that, in general, hip function is optimised by regular use and by strengthening the surrounding musculature, and his recommendations as to the activity which the Claimant should be deemed capable of managing, or expected to undertake. He accepted that muscle deconditioning would itself cause weakness, pain and fatigue, and that, particularly as a young woman, she should be encouraged to maintain a high level of activity in order to build strength and reduce the risk of later muscle-wasting. He also concluded that she would experience increased aching and easy fatigability when living independently, especially when managing a family. Yet his recommendation was for measures which would reduce her activity levels, despite the absence of any clinical need for her to do so.
Acknowledging that use of stairs would, at times, cause the Claimant greater discomfort than would have been the case had she not undergone a THR and earlier procedures, it is a long step from there to accepting a need for accommodations to be made which would themselves be more likely to lead to muscle deconditioning, particularly at the Claimant's current young age. Furthermore, it is easy to overstate the differences between the experts' respective positions ? even taking Mr Conlan's view at its highest, the issue is the degree of discomfort and fatigue, rather than the level of functionality, which the Claimant is likely to experience, and how that ought to be characterised. Both experts were of the opinion that the Claimant would lead a near-normal life. Having regard, in particular, to the five-yearly follow-up monitoring appointments recommended by Mr Ashworth (to which no challenge is raised), which would identify signs of deterioration before such time as they might otherwise generate intrusive symptoms for the Claimant, I have concluded that, on the balance of probabilities, Mr Ashworth's view of the Claimant's trajectory and related orthopaedic needs from November 2025 onwards is to be preferred to that of Mr Conlan, where the two diverge. The risk, as it seems to me, in making accommodations to minimise nuisance-level fatigue or discomfort, particularly at a time when the Claimant remains young and capable of high levels of activity, is that they will bring about or exacerbate that which Mr Conlan fears, rather than enabling her to condition her muscles to promote longevity of her implant and minimise residual symptoms. As Mr Ashworth observed, the pattern of the Claimant's activity and weight-bearing ability to date of trial indicates that there has been rehabilitation of her muscles, and the capacity for further strengthening. I shall address the heads of special damage affected by this conclusion later in this judgment. Suffice it to note, at this stage, that the approach to be adopted derives from a combination of legal principle and that which is (and which is not) clinically advisable at each stage of the Claimant's life in all the circumstances.
The Claimant's mental health
The psychiatric experts were also in agreement on a number of important matters. There was a shared acknowledgement that the Claimant's personality would have been conditioned by her earlier experiences, including repeated surgery and disability. There was agreement as to the 75 per cent risk of a recurrence of depression and the fact that there had already been a further depressive episode in 2024. There was shared acknowledgment of iatrogenic codeine dependence, over an aggregate period ultimately agreed to have been 30 months, and of a period of self-harm which had continued for (in so far as the experts agree) a period of five years. The experts also agree on the 14 per cent incidence of self-harm in the general population. They agree on the link between an individual's mood and the pain experienced, and vice versa. They agree that, at the centre of modern pain management practice, is the connection between mind and body and the importance of treating both. The real issue between them is as to the proper diagnosis of the Claimant's conditions, in turn affecting their prognoses and prescribed treatment. Before turning to consider the evidence relating to those matters, it is necessary to say a little of the expert witnesses themselves.
There can be no doubt that each witness is qualified to give the opinions sought and highly experienced in her specialist fields. Nevertheless, I found Dr Gibbons' evidence to be problematic in a number of respects. First, a number of the key matters on which she founded her opinions in oral evidence were not to be found in her report, or in the joint statement. That is curious and gives pause for thought when considering the merit in the conclusions affected. Her evidence in relation to the matters informing her diagnosis of one of the essential diagnostic criteria for PTSD ? that, at the time of writing her report, she had 'felt in some ways that the argument internally wasn't strong enough?' was telling, as was her evidence that she had not referred to hypervigilance or an enhanced startle reaction in her report, or in the joint statement. Her reliance in her report on the ICD-11 criteria for diagnosing CPTSD, followed by her oral evidence to the effect that analysis of the Claimant's condition by reference to those criteria was non-sensical, was problematic. It led to her struggle to answer directly the related questions asked of her in cross-examination. Where the Claimant's symptoms were demonstrable, she considered them to support her conclusions. Where they were ostensibly absent, that was said to be because the Claimant had minimised or masked them (an opinion also absent from her report and the joint statement), or was in denial, or had presented differently by reason of her age. In general, Dr Gibbons gave the impression of seeking to fit the evidence to her diagnosis of CPTSD, rather than her diagnosis to the evidence.
Dr Denman's evidence was measured and considered. She candidly recognised that she had not, initially, correctly identified the full period of opioid dependence, and that the Claimant's visit to her GP and his prescription, in 2024, indicated that her depressive symptoms had recurred, or had never completely gone away. She gave thoughtful consideration to whether, as Mr Matthews suggested, she might have lost her sense of balance as an expert, giving cogent explanations for the views which she maintained. In general, I found her to be an impressive witness, who was willing to be self-critical and to give ground where appropriate and whose views and conclusions were founded in the evidence and having regard to the diagnostic criteria set out in ICD-11. Her willingness to make appropriate concessions and to question her own approach served to re-inforce the merit in those opinions in which she remained steadfast having done so.
There is no doubt, as the experts agree, that the Claimant has been exposed, from an early age to events which were traumatic and which will have predisposed her to developing one or more mental health conditions. The primary issue is whether, in the event, she has developed CPTSD. In that connection, the question is, first, whether all diagnostic requirements for PTSD are met, and, if so, secondly, whether there are additional aspects of her condition which render that disorder complex.
The three core diagnostic requirements of (simple) PTSD, as described in ICD-11, are (in summary):
a. re-experiencing of the traumatic event(s), in the present. Expressly noted is the fact that, 'reflecting on or ruminating about the event(s) and remembering the feelings that one experienced at that time are not sufficient to meet the re-experiencing requirement';
b. deliberate avoidance of reminders likely to produce re-experiencing of the traumatic event(s); and
c. persistent perceptions of heightened current threat, for example as indicated by hypervigilance, or an enhanced startle reaction to stimuli such as unexpected noises. (It is recorded that, in CPTSD, unlike in PTSD, the startle reaction may in some cases be diminished rather than enhanced.)
Symptoms will persist for at least several weeks and will cause significant impairment in personal, family, social, educational, occupational or other important areas of functioning. Amongst the matters noted under the heading 'Developmental Presentations' is that the disorder can occur at all ages, but that responses to a traumatic event ? that is, the core elements of the characteristic syndrome ? manifest differently depending on age and developmental stage. An example given later in that section is that, in adolescence, self-injurious or risky behaviours (for example, substance use or unprotected sex) occur at elevated rates.
In the ICD-11 classification for CPTSD, it is noted that all diagnostic requirements for PTSD will be met, in addition to which there will be: a) severe and persistent problems in affect regulation; b) beliefs about oneself as diminished, defeated or worthless, accompanied by feelings of shame, guilt or failure related to the traumatic event; and c) difficulties in sustaining relationships and in feeling close to others. Those symptoms will cause significant impairment in personal, family, social, educational, occupational or other important areas of functioning. If functioning is maintained, it is only through significant additional effort.
Under the heading 'Boundary with Normality (Threshold)', is noted, 'A history of exposure to a stressor of extreme and prolonged or repetitive nature from which escape is difficult or impossible does not in itself indicate the presence of CPTSD. Many people experience such stressors without developing any disorder. Rather, the presentation must meet all diagnostic requirements for the disorder.' That is consistent with the view expressed by Dr Denman and inconsistent with Dr Gibbons' 'holistic' approach, the latter avoiding the need to have due regard to all of the diagnostic criteria.
It is also to be noted that, under the heading 'Developmental Presentations', the first bullet point reads, '[CPTSD] can occur at all ages, but responses to a traumatic event ? that is, the core elements of the characteristic syndrome ? can manifest differently depending on age and developmental stage. Because [CPTSD] and [PTSD] both share the same core elements, information provided in the developmental presentations section for [PTSD] also applies to children and adolescents affected by [CPTSD].' On that basis, I reject Dr Denman's position that it is inappropriate, under the ICD-11 criteria, to have regard to the prospect of a different presentation in children and adolescents when considering whether the essential diagnostic criteria for PTSD are satisfied, but it remains the case that those criteria must be satisfied before the question of complexity can arise for assessment. It is also the case that any differences in the presentation of the additional criteria will only arise for consideration if the underlying criteria for PTSD are found to be present.
On the evidence, I am not satisfied that the three core elements of PTSD ? re-experiencing; avoidance; and sense of current threat ? have been established. I accept Dr Denman's evidence that, having identified the application of ICD-11, Dr Gibbons failed satisfactorily to account for the absence of the essential elements of PTSD for which that classification provides.
The ICD-11 classification for CPTSD notes that re-experiencing '? typically occurs in the form of vivid intrusive memories or images; flashbacks, which can vary from mild (there is a transient sense of the event occurring again in the present) to severe (there is a complete loss of awareness of present surroundings), or repetitive dreams or nightmares that automatically related to the traumatic event(s). Re-experiencing is typically accompanied by strong or overwhelming emotions, such as fear or horror, and strong physical sensations. Re-experiencing in the present can also involve feelings of being overwhelmed or immersed in the same intense emotions that were experienced during the traumatic event, without a prominent cognitive aspect, and may occur in response to reminders of the event?' Dr Gibbons acknowledged the absence of any material which was indicative of re-experiencing (including by way of any alternative presentation) in her report. In oral evidence, she stated her view that the Claimant had experienced flashbacks in the sense that she had panicked when going into hospital. She also referred to Mrs Lynch's evidence to the effect that the Claimant would cry on most days when going to primary school (as to which I have made findings above). Yet, as Dr Denman put it, almost everyone has peak experiences in his or her life, which will come to mind unbidden. Unbidden memory, even vivid memory, is not necessarily a symptom of PTSD, in which re-living is intrusive, forced, frequent, and disabling. In cross-examination, it was put to Dr Denman that the Claimant's clear recollection of the trolley on which she had been taken for surgery at an early age, which had then been described to her as a fire engine and which had disinclined her to get on a trolley at a later stage, was an example of a flashback. Dr Denman considered it to be a painful and unpleasant memory, in common with the Claimant's memory of her father having subsequently had to hold her down in order that an anaesthetic could be administered, but she was clear that there was a distinction to be drawn between whether an experience qualified as traumatising (of which those recollections were indicative) and whether the individual had taken profound harm from it. I am satisfied that these were painful and unpleasant memories, but not flashbacks; the experience in the here and now was not present. I note that, at the time of writing her report, Dr Gibbons did not herself consider the argument deriving from panic when going into hospital to be strong enough. I accept Dr Denman's opinion that the way in which the Claimant presented at times in her life when she was undergoing surgical procedures or in significant pain, and the associated social discomfort, are indicators of her level of distress at the situation as it then stood but are not indicative of trauma.
There is also an absence of evidence of deliberate avoidance likely to produce re-experiencing of the traumatic events. When pushed on that subject in cross-examination, Dr Gibbons stated her view that the Claimant was avoiding 'psychological input?facing the anxiety of actually looking at emotionally engaging with these experiences'. Yet it was clear, from the Claimant's own evidence, that she had proactively sought out her GP in the three to six months prior to trial, and she acknowledged that she was 'quite keen on' CBT.
As to the third criterion for diagnosis of PTSD, Dr Gibbons acknowledged the absence of any reference in her report or the joint statement to hypervigilance or an enhanced startle reaction. I acknowledge the statement in the ICD-11 criteria for CPTSD that, in some cases, the startle reaction may be diminished (albeit that Dr Gibbons did not herself rely on it for her own opinion and there was no evidence of diminished startle reaction either), but the need for hypervigilance remains and is not demonstrated. When pressed on that matter in cross-examination, Dr Gibbons said, ' I think this is the diagnosis that most clearly fits. It is not perfect.'
It is no substitute for consideration of each essential criterion to suggest that a 'holistic' approach ought to be adopted, which, as it seems to me in this case, in fact requires abandonment of a structured analysis of the Claimant's signs and symptoms. Dr Gibbons herself considered her diagnosis to be imperfect, but to be that which 'most clearly fits'. As none of the criteria for PTSD is made out, I accept Dr Denman's view, supported by the ICD-11 classification, that the analysis ends there and that no question of the complex version of that disorder can arise. The further matters upon which Dr Gibbons relied as to the different presentation in adolescents related, on the face of the ICD-11 criteria, to those factors which would render any disorder, if present, complex. Even then, the evidence in relation to severe and pervasive problems in affect regulation, and to persistent difficulties in sustaining relationships and in feeling close to others, in particular, was lacking.
As to the former, I acknowledge the periods, respectively, of self-harm and of opioid dependence, and that each was longer than originally had been appreciated by Dr Denman. I accept Dr Denman's opinion that the Claimant's opioid over-use had been born of its availability as a prescribed pain-killer, and, as the evidence shows, it had been terminated by the Claimant herself, once she had appreciated its effect ? itself speaking to her determination and resilience. In my judgement, it was a form of harm inadvertently caused by medication for her physical pain ? iatrogenic (as agreed by the experts in their joint statement), as distinct from voluntary, compulsive substance misuse, of which there is no separate indication. Whilst self-harming falls into a different category, in my judgement Dr Denman is right to note: a) that it was not at the profound end of the scale which she would see in her practice (and I note that, having been referred to CAMHS, the Claimant herself considered that that service could not provide her with the help which she needed, having considered her not to be at risk); b) the significant peer influence, as relayed by the Claimant herself, who had noted that there had been an improvement when that influence had gone away; c) that it was a sign of distress but not necessarily indicative of a particular condition; and d) recognising that the Claimant experienced a later period of depression, her evidence to the psychiatrists and to the Court was that her experience had been of very low mood, rather than of mood swinging. I have previously referred to the other contributory factors recorded by Dr Handysides. I accept Dr Denman's evidence to the effect that the formation of friendships is inherently idiosyncratic, such that the Claimant's attraction towards the particular friend is something from which one can draw limited conclusions, particularly given the not insignificant incidence of self-harming in the female adolescent population as a whole. Acknowledging that the Claimant's physical difficulties were a contributory factor, I am not satisfied that her self-harming establishes any diagnostic criterion for PTSD, or for any complexity of that disorder. Further, as the Claimant's own evidence and that of her family members; Ms Randles; and Ms Dixon indicated, she is clearly capable of forming and sustaining, and has formed and sustained, strong and productive relationships. She has a current partner. All of that was acknowledged by Dr Gibbons.
In all the circumstances, I also accept Dr Denman's evidence that there is a danger in interpreting the absence of symptoms as evidence of masking and denial, rather than as indicating that the relevant criteria are simply not satisfied in the Claimant's case and that her adverse experiences have in fact had a steeling effect. Consistent with her personality, approach and achievements, as demonstrated since early childhood and recognised by all witnesses of fact and expert witnesses in this case, I am satisfied that the evidence indicates that that is the effect which it has had. That is not synonymous with masking or denial. On the basis of everything which I have learned and observed about the Claimant in the course of trial, I am satisfied that Dr Denman's characterisation of her as putting her best foot forward; pushing herself ? sometimes too far ? to improve, rather than as manifesting a dysfunctional unwillingness or inability to face the truth, is correct.
In summary, in my judgement, the Claimant has at no time had, and does not now have, PTSD or CPTSD. In such circumstances in particular, the Claimant's signs and symptoms; periods of self-harm; and iatrogenic opioid dependence are properly accounted for by Dr Denman's alternative diagnoses.
Single Episode Depressive Disorder/ Recurrent Depressive Disorder
The diagnostic descriptions and criteria for single episode depressive disorder and recurrent depressive disorder are set out, respectively, at 6A70 and 6A71 of ICD-11. The former disorder is characterised by the presence or history of one depressive episode when there is no history of prior depressive episodes. A depressive episode is said to be characterised by a period of depressed mood or diminished interest in activities, occurring most of the day, nearly every day during a period lasting at least two weeks, accompanied by other symptoms such as difficulty concentrating, feelings of worthlessness or excessive or inappropriate guilt, hopelessness, recurrent thoughts of death or suicide, changes in appetite or sleep, psychomotor agitation or retardation, and reduced energy or fatigue. There will never have been any prior manic, hypomanic, or mixed episodes, which would indicate the presence of a bipolar disorder. Recurrent depressive disorder is characterised by a history of at least two depressive episodes, separated by at least several months without significant mood disturbance. For those purposes, too, a depressive episode is characterised as just described.
Dr Gibbons diagnosed Recurrent Depressive Disorder, present as at 2018, considering that there had been earlier depressive symptoms which had manifested themselves differently in childhood, including self-harm and negative self-affect. As with her diagnosis of CPTSD, she acknowledged that it was not perfect. I have already made my findings as to the genesis and nature of the Claimant's self-harm, which ended when she was 18. In so far as Dr Gibbons placed reliance on Mrs Lynch's evidence that the Claimant had cried on most days when going to primary school, I have found Mrs Lynch's recollection not to have been supported by the contemporaneous records. The opioid misuse was iatrogenic. In my judgement, the Claimant's first episode, of moderate depression, was that which Dr Denman identified, beginning in 2022, when the Claimant, by then an adult, left university and felt unable to move forward in the way in which her friends were then doing. It is agreed that that period of depression resulted from the Claimant's hip problems. On balance, however, and noting that the Claimant has now had two periods of depression, I am satisfied that the condition which she has is Recurrent Depressive Disorder. There is an agreed 75 per cent risk of relapse, attributed by Dr Denman to earlier depressive illness and a chronic physical health problem. In those circumstances, whether the correct diagnosis of the Claimant's condition derives from recognition of at least two distinct past depressive episodes or is based upon the prognosis having regard to current risk factors may be of limited significance other than to clinicians, particularly as Dr Gibbons accepts Dr Denman's proposed treatment plan to be reasonable, should her own diagnoses be rejected. Having regard to that treatment plan and to the agreed risk of relapse, I consider it probable that there will be a relapse at or around the time of each surgical intervention (respectively, at or around 47, 67, and 82) and that it would be prudent to make provision for additional relapses in the course of the Claimant's lifetime (see below). Nevertheless, consistent with the Claimant's approach and progress to date is Dr Denman's opinion that the depressive illness is unlikely to constitute a very major disability. Further, as she noted in the joint statement, depressive illness is common in the population, and the vast majority of people do not have significant impairments in their ability to maximise employment potential; resilience and employment; ability to have a family and work full-time; or ability to work until State retirement age.
In summary, I consider that, viewed in the round, the evidence indicates that: a) the Claimant's initial period of depression, of moderate severity, occurred in 2022; b) as of 2024, she has had Recurrent Depressive Disorder; c) she is most likely to experience recurrence/relapse at or around the time of each revision, though additional periods of relapse cannot be ruled out, all of which is unlikely to have occurred in the but for scenario; d) her period of self-harm ? over the course of, but not continuously throughout, a five-year period running from 2013 to 2018 ? was indicative of an adjustment disorder spanning that same period, to which her hip problems had contributed, but of which they had not been the sole or predominant cause; and that e) for a combined, but non-continuous, period of 30 months, over a period spanning c.2019 to 2022, the Claimant had an iatrogenic codeine disorder, now in remission, which would not have occurred in the but for scenario.
Dr Gibbons' opinion of the appropriate treatment plan expressly applied on the assumption that her diagnoses were accepted by the Court, in default of which she considered the treatment plan recommended by Dr Denman, by reference to her own diagnoses, to be reasonable. Having found that Dr Denman's opinion, where divergent from that of Dr Gibbons, is to be preferred, I also accept that her recommendations for future therapy are appropriate and that the treatment proposed by Dr Gibbons is not warranted by the diagnoses which I have found to be correct. On the balance of probabilities, I accept that, having regard to the Claimant's determination, resilience and keenness to undergo CBT, the plan advocated by Dr Denman will arm her with the tools required to cope with low mood and any relapse. In that context, I consider that the impact of any further depressive episodes will not materially affect the trajectory of the Claimant's physical progress and recovery from future surgical procedures. For that reason, on the balance of probabilities, I do not consider there to be any psychological reason why she will not optimise her physical recovery and condition by reason of any separate or related mental health condition.
Pregnancy and the period post-partum
The orthopaedic experts agree that the Claimant will be able safely to conceive, carry a pregnancy, and undertake a normal vaginal delivery (if otherwise considered appropriate by her obstetric team), but diverge on the functional implications of the later stages of pregnancy; on pain management; and on the need for support during pregnancy and in the early post-partum period.
(a) The Claimant's prospective age at the time of each pregnancy
Albeit that the Claimant has expressed a desire to have four children, the claim has been advanced on the basis that she will have two, with one or more long-term partner(s). There is no evidence as to when those children are likely to be born, though I note Mr Conlan's understanding (recorded at section 4.2 of the orthopaedic joint statement) that approximately 1.5 per cent of first pregnancies occur in women who are over the age of 40, said to be higher than the birth rate amongst women in their twenties. Doing the best I can having regard to the Claimant's twin strong desires to have children and to establish herself in her desired career, I find that, on the balance of probabilities, she will give birth to her first child at around the age of 31 and to her second at around the age of 34. That being so, by the age at which it has been agreed that her first revision surgery will take place, those children will be aged 16 and 13, respectively, and each will have a degree of independence.
(b) Back pain and functionality
The orthopaedic experts are of the shared view that the Claimant's risk of back pain in pregnancy is in the region of 10 per cent higher than would have been the case in the but for scenario, in which, so the literature suggests, the prevalence of back pain amongst pregnant women generally is in the region of 63 to 74 per cent (Salari et al: 2023), and, according to one study, between 25 and 90 per cent (Katonis et al: 2011). Mr Ashworth gave evidence that there may be a small increased risk of left hip discomfort impacting on heavier childcare demands. Ms Filson gave evidence regarding a patient, whose circumstances as relayed were comparable to the Claimant's, who had experienced considerable back and hip-specific pain. I bear in mind the study by Sierra et al, to which reference is made at section 4.2 of the joint statement of the orthopaedic experts, which notes that, of the 47 women who had had a successful pregnancy following total hip arthroplasty, 28 had noticed an increase in pain in the hip during pregnancy and that, for 10 of those women, pain had persisted after pregnancy. On the balance of probabilities, I am satisfied that, during each pregnancy, and potentially for a short period thereafter, the Claimant will experience a degree and type of back and hip pain which she would not have experienced in the but for scenario and which, as the orthopaedic experts agree may reasonably be treated with analgesia and physiotherapy.
Both orthopaedic experts are of the view that, in the absence of complications, a THR patient ordinarily would require no greater assistance in pregnancy than would be required by any pregnant woman of a similar age. Mr Conlan's view of the greater functional impact which pregnancy will have in the Claimant's case derives from his opinion of the effect of multiple prior hip surgeries. Mr Ashworth acknowledges that the Claimant is more likely to experience back pain in pregnancy for that reason, but not a wider impact on functionality, emphasising the need for her to maintain fitness. Ms Benfield's position is derivative of Mr Conlan's. Ms Lawson's position is derivative of Mr Ashworth's. She was also of the view that, during the last trimester of pregnancy, most women will experience difficulty with bending down and with breathing when walking uphill, and that she did not foresee the Claimant's pregnancy as being different from any other.
On balance, I take the view that no particular impairment of function during the third trimester of pregnancy has been identified which would not have applied in the but for scenario, or which would not be addressed by the management of back/hip pain.
(c) Childcare in the three months post-partum
In Mr Conlan's view, managing the practical burdens of childcare ? lifting, carrying, and performing tasks at low levels?may prove significantly more taxing for the Claimant by reason of impaired muscle development and scarring. Mr Ashworth's position is that the Claimant will be able to undertake childcare without restriction, acknowledging that heavier childcare tasks may give rise to some low-level discomfort and deferring to care-expert evidence regarding the likely extent of assistance required. Ms Benfield's position on childcare largely derives from Mr Conlan's view. She notes that assistance with childcare during the three-month post-partum period would help to reduce the Claimant's need to flex or extend her hip at the extreme ranges of motion and would assist her in the event of pain and difficulties with fatigue and mobility. Ms Lawson's position on childcare is derivative of Mr Ashworth's.
As I have previously observed, I consider Mr Conlan's concerns as to the extent and likely effect of scarring to be unwarranted in this case. Having regard to the rest of the evidence on this point, I accept that, on the balance of probabilities, the Claimant will experience some low-level discomfort with the heavier demands of childcare over the relevant period.
The consequences of those findings for related heads of special damage will be addressed later in this judgment.
Back pain other than in pregnancy
The orthopaedic experts are agreed that there will be flare-ups of back pain at around the time of each revision and intermittently throughout the Claimant's life. I accept Mr Ashworth's opinion that any flare-up outside the peri-revision periods is likely to be short-lived and, if of longer duration, to be unrelated to her hip problems. As there is an agreed position on physiotherapy in this connection (see below), I need not dwell further on this issue.
The timing of revision surgeries and the length of each peri-operative period
Mr Ashworth notes that the Claimant will have private provision enabling her to have surgery within four months of joining a waiting list. He has also recommended follow-up appointments, commencing 10 years after the THR and repeating at regular intervals thereafter, until the time of the final revision, with a view to identifying any problem in the asymptomatic phases, allowing for earlier surgery before greater damage will have occurred to the Claimant's bones and at a time when the outcome is likely to be better, and her recovery more rapid. In his opinion (unchallenged on this point), early identification and earlier treatment would move the identified risks towards the lower end of the spectrum, and the benefits to the upper end of the spectrum.
Mr Matthews, nevertheless, urges caution. He observes, rightly, that the timing of surgery is not simply a product of the point at which one becomes symptomatic, and that the Claimant's past experiences, and her commitments ? at work, and socially ? at the relevant time may well mean that she is disinclined or unable to undergo surgery at the earliest point at which it might be clinically indicated. Whilst I recognise the force, in principle, of the latter point, I am satisfied that the Claimant's understanding of the fact that the earlier that she undergoes surgery, the less she will deteriorate and the better its likely outcome and her recovery time, together with her appreciation that the need for such surgery at some point is inevitable, will incline her to have it at the earliest advisable opportunity.
For each of the first and second revision surgeries, the difference between the experts as to the period prior to surgery when she is likely to require support is two to four months. On balance, and allowing time for the Claimant to consider the best way forward and to make such practical arrangements as will be necessary prior to each such revision surgery once advised, I consider that surgery will take place within five months of the point at which she is advised that, clinically, it ought to be undertaken, and that, as is agreed, she will have support needs throughout that pre-surgery period. The total period during which she will require support post-surgery is agreed to be four months, in each case. Thus, the total peri-revision period during which the Claimant will require support at the time of each of her first and second revisions will be nine months.
In relation to the third revision surgery, which will take place at a time when the Claimant will no longer be working, both orthopaedic experts consider that there will be a need for post-operative support on a decreasing basis, over a six- month period. Mr Ashworth considers that the need for pre-operative support will arise over four months, whereas Mr Conlan considers that period to be six to eight months. On balance, and having regard to the Claimant's age at that point, I consider that she might require a little more time to decide on the appropriate timing of surgery and I assess the pre-operative period to be six months, bringing the total peri-operative period during which she will require support to 12 months.
Amendment to work activities
The experts largely agree that, prior to the first revision operation, amendments will need to be made to the Claimant's work duties for approximately four months, in order to reduce pain brought about by walking, lifting and/or twisting activities. She may need to work part-time immediately prior to surgery, if pain restricts her activities, and to take up to one month off work prior to surgery. Following surgery, she will need to take three months off work, returning to work part-time, on amended duties, for one month, before returning to full-time employment. The disagreement is as to whether, as Mr Conlan contends, the Claimant will require amended duties for an additional two months in the run up to surgery. I have previously found the likely period between surgery being clinically indicated and its taking place to be five months and I consider that to be the period over which the Claimant will require amendments to be made to her duties at work, subject to any need to take one month off work altogether. In fact, the Defendant accepts that provision ought to be made for six months' loss of earnings in the peri-operative period of the first revision, rendering the point moot for practical purposes.
The Claimant's ability to carry out domestic tasks outside the peri-revision periods
As I have recorded at an earlier stage, the need for support as identified by Mr Conlan largely proceeds on the assumption that multiple childhood DDH surgeries and the muscle scarring and associated symptoms which he considers to have resulted, will limit the Claimant's capacity to perform heavier, or more demanding household tasks on a routine basis. He also notes the increased likelihood of fatigue and discomfort during lighter activities.
Mr Ashworth's evidence is that, absent a complication arising from the first revision, with continued improvement in strength and reduction in pain the Claimant will not require help with domestic activities or gardening until she is approximately 67 years old, though he and Mr Conlan agree that heavy domestic activities (such as moving very heavy items of furniture), as well as heavy gardening activities (such as repetitive digging and heavy landscaping activities) are to be avoided. Mr Conlan's opinion is that managing a home, and, in due course, a family, will prove to be quite challenging by reason of discomfort in the Claimant's left hip, weakness and fatigability. Ms Benfield observes that, having regard to the level of support sought, the Claimant would still be required to undertake domestic tasks but would be able her to pace herself, and, thereby, to manage her fatigue and direct her energy towards meaningful activity.
Having regard to my earlier findings in relation to muscle scarring and muscle rehabilitation in this case; the trajectory which I have found to be established on the balance of probabilities; the benefits of muscle conditioning promoted by activity and the Claimant's commitment to achieving that; and the fact that fatigue and discomfort are likely to continue at nuisance-level, where they persist at all, I conclude that Mr Ashworth's opinion is to be preferred. It follows that I do not accept that, prior to the age of 67, the Claimant will be unable to carry out the majority of domestic tasks without support, acknowledging the agreed need for routine assistance with heavy domestic and gardening tasks, which both orthopaedic experts consider ought to be avoided by any hip replacement patient. I address, later in this judgment, the separate question of whether, in such circumstances, the Claimant is entitled to support designed to mitigate such low-level fatigue and discomfort as she might experience whilst carrying out ordinary domestic tasks.
Subsequent revision surgeries and related accommodation needs
The orthopaedic experts agree that, whilst the outcome of each revision surgery is likely to be good, subject to the risk of complications previously identified, the symptomatic and functional outcome of each successive revision procedure will be progressively less satisfactory. As Mr Ashworth put it, with each operation, the outcome would be slightly less good than for the primary operation.
Appreciating that the Claimant will be likely to experience greater discomfort and fatigue as she ages, there is no indication that she will be unable to use stairs at any stage, or that it would be other than clinically beneficial for her to do so. Mr Ashworth acknowledged that, in the peri-operative periods of the second and third revisions, the issue was likely to be pain rather than capability. To date, the Claimant has shown a consistent willingness to push herself, including when in pain. Both orthopaedic consultants recognise the balance to be struck between facilitating comfort and facilitating deconditioning and the risk of a downward spiral. Ms Benfield stated that she did not think that the Claimant should ever not use stairs. Even accepting that there will be a period around each of the second and third revisions during which stair use would be unlikely, I do not consider that any such period is of sufficient duration, or likely to be causative of sufficient difficulty itself to give rise to a need for single-level accommodation at any stage, particularly having regard to other available mitigating measures such as temporary use of: mobility aids; analgesia; and downstairs accommodation. Considerations of legal principle deriving from these findings will be addressed later in this judgment.
Mobility aids
Leaving aside any need for a wheelchair/mobility scooter other than in the event of a Girdlestone procedure, to be addressed separately below, I turn to consider the Claimant's wider need for mobility aids. As before, I do not consider that any such need is likely to arise from any scarring or underdevelopment of musculature arising from her childhood surgeries.
Both orthopaedic experts consider there to be a risk of a need for mobility aids which is greater than that applicable in the general population. I consider the level of that additional risk as identified by Mr Ashworth to be too conservative and I note that the opinion given in his original report was less so.
In his report dated February 2024, at paragraph 9.66, Mr Ashworth had stated, ' I opine around a 40% chance of a future permanent need for a walking frame indoors and scooter outside after the 2 nd revision aged 67, but a certainty in the six months prior to and permanently following the 3 rd revision aged 82. Further this does not take into account the but for 'help needs' seen with aging.'
As summarised in sections 7.3.1(b) and (c) of the orthopaedic joint statement, the competing views were as follows:
> 'Both experts agreed that the Claimant is at increasing risk of needing to use a Zimmer frame indoors and mobility scooter outside after her 3rd revision operation at age 82. Mr Ashworth opined there is an increased risk the Claimant will need to use these devices over and above the but for rate noted above at 9% for a Zimmer frame and 3% for a mobility scooter. In the absence of any literature to guide him he estimates a doubling of the risk for the Claimant due to the multiple operations she will have undergone by that age.
>
> Mr Conlan expressed his opinion above, i.e. that it is probable that the Claimant will regularly employ a walking frame indoors and a mobility scooter to access the wider community when outdoors from about 75-82 years of age and thereafter.'
>
Doing the best I can having regard to the assumed trajectory which I have found to be appropriate; the high-performance of the Claimant's implant type; the effect of muscle conditioning; and the Claimant's determination to optimise her recovery and functionality, I consider that, on the balance of probabilities, she will require a walking stick which she would not have required in the but for scenario, from around the age of 70 onwards. On the same bases, I consider that she is likely to require the use of a walking frame indoors from the age of 82 onwards.
The position in relation to a wheelchair and mobility scooter I consider to be different. Here again, I do not accept that that risk is heightened by virtue of muscle-scarring and earlier surgeries, acknowledging that, by the stage under the consideration, the first and second revisions will have taken place. I bear in mind the trajectory which I have found to be probable and the rationale which has informed it. I also bear in mind Mr Ashworth's experience of the number of older patients who have undergone multiple revision operations who use a wheelchair, and Mr. Conlan's lack of experience in treating patients of that age. Even allowing for some conservatism on the part of Mr Ashworth which has resulted in his doubling of the seven per cent statistical incidence of wheelchair use, and of the three per cent incidence of mobility scooter use, in the adult population, on the balance of probabilities I am not satisfied that, by reason of the Defendant's negligence, the Claimant will have a need for a wheelchair other than as part of the agreed temporary requirement around each revision procedure, including as part of her rehabilitation, or in the event of a Girdlestone procedure.
Employment capacity
I shall consider separately the impact of the Defendant's negligence on the Claimant's career path and earnings. At this stage, I confine my findings to the asserted need for her to work part-time from the age of 60 onwards and to retire at the age of 65. I make those findings on the assumption that the nature of the work which she will be undertaking will be essentially sedentary and will be of a type consistent with the orthopaedic experts' recommendations. In light of those experts' jointly held view that the outcome of the first revision surgery is likely to be good; my previously stated reasons for considering that the extent of muscle scarring damage is less than that feared by Mr Conlan; and the experts' agreement that the Claimant will lead a near-normal life, I am satisfied that there is no basis for assuming that the Claimant will move to part-time work before the age of 65 (or, indeed, at any time prior to retirement) by reason of any consequence of the Defendant's negligence. In light of what would, by then, be a relatively imminent second revision operation and the deterioration in functionality which will be experienced in the few months preceding and subsequent to it, on the balance of probabilities I conclude that the Claimant will retire from full-time work at the age of 66.
Damages
Against the background of those findings, I turn to consider the remaining issues of principle and quantification arising in this case.
Provisional Damages
The legal framework was helpfully summarised by Hill J in Mathieu v Hinds and Aviva [2022] EWHC 924 (QB), at [289] to [305], from which the following key principles may be extracted:
a. Section 32A of the Senior Courts Act 1981 enables the Court to order the payment of provisional damages, where 'there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition'. CPR 41.2(1) empowers the Court to make such an award where (a) the particulars of claim include a claim for provisional damages; and (b) the Court is satisfied that the statutory criteria are met.
b. The three questions to be considered are those identified in Willson v Ministry of Defence [1991] ICR 595, at 598H to 599A, approved by the Court of Appeal in Curi v Colina, The Times 14 October 1998: (1) Is there a chance of the claimant developing the disease or deterioration in question? (2) Is the disease or deterioration serious? (3) If so, should the Court exercise its discretion to make an award of damages?
The chance
c. In deciding whether the statutory test is satisfied, the Court must consider whether the claimant has established, on the balance of probabilities, that, as a result of the relevant act or omission, there is a chance of serious deterioration in his physical or mental condition in the future. The chance itself is established by less than a balance of probabilities standard: Chewings v Williams [2010] PIQR Q1, per Slade J, at [12] and [14]. It must be 'measurable rather than fanciful?[h]owever slim': Willson; Curi. Provided that it is more than fanciful, it need not be precisely quantifiable ? one great advantage of an award of provisional damages is that it is unnecessary to resolve differences between specialists at to the precise extent of the risk to which the claimant is exposed: Patterson v Ministry of Defence [1987] CLY 1194.
d. Provisional damages may be awarded even where there is a relatively small chance of developing the relevant serious disease or deterioration in condition. Risks as low as 0.15 per cent and 0.1 per cent have been held to suffice: see Mitchell v Royal Liverpool and Broadgreen University Hospitals NHS Trust (unreported, 17 July 2006, per Beatson J (as he then was); and Kotula v EDF Energy Networks (EDN) Plc [2011] EWHC 1546 (QB), per Irwin J (as he then was).
Seriousness
e. A disease or deterioration may be serious because of its effect on the activities, capabilities, life expectancy, or financial position of the particular claimant. It must also be such that an award of damages which included a sum for the chance would be wholly inadequate to compensate the claimant for the position in which he would find himself once the chance had materialised: That is a question of fact in each case: Curi, page 9.
The discretion
f. The general rule in English Law, to which section 32A of the Senior Courts Act 1981 creates a valuable statutory exception, is that damages are assessed on a once-and-for-all basis. Section 32A 'envisages a clear and severable risk rather than a continuing deterioration'. There should be some clear-cut event which, should it occur, triggers an entitlement to further compensation: Willson, page 602A-B; Curi, pages 9-10.
g. Generally speaking, it is desirable to limit an award of provisional damages to cases in which the adverse prospect is relatively clear cut and where there would be little room for later dispute over whether or not the contemplated deterioration had actually occurred: Willson 600G-H and 601E-F.
h. The factors relevant to the exercise of the discretion are: (1) whether, in respect of the relevant event, there can truly be said to be a clear-cut identifiable threshold; (2) the degree and consequences of the risk; and (3) the need to weigh up the possibilities of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the claimant's right to return: Willson, 602C-E.
i. Where a risk is small, that of itself might afford justification for an award of provisional damages. That is because, if the claimant is to be restricted to a once-and-for-all award, the size of the chance might leave him significantly under-compensated, should the risk eventuate: Mitchell [11] and [12].
j. If the serious disease or deterioration occurs, 'the fact that ?there may be an issue on causation should not prevent the court from exercising its power [to award provisional damages], provided that it has been proved on the balance of probabilities that there is a measurable chance of the disease or deterioration materialising': Curi, page 9.
In sum, the Claimant seeks provisional damages in respect of one or more of the following risks: a) of complication leading to implant failure before she reaches the age of 47; b) of complication during each revision and prior to the end of its anticipated lifespan; and c) of the need for a Girdlestone procedure. Having regard to the legal principles summarised above, I am not satisfied that risks (a) and (b) entitle her to an award of provisional damages in this case.
Addressing the three questions identified in Willson:
(1) and (2): chance of serious deterioration
>
a. In my judgement, the difficulty inherent in the Claimant's position is that, whilst Mr Matthews is able to point to a more than fanciful chance that one or more complications might eventuate, he is unable to establish, on the balance of probabilities, a more than fanciful chance that the Claimant will suffer an associated serious deterioration in her physical condition, including by reference to the effect of the deterioration on which reliance is placed on her activities, capabilities, life expectancy; or financial position.
>
b. That is reflected in the form of the order sought by Mr Matthews, which focuses on the potential complications and (contrary to the example given in the Annex to Practice Direction 41A, supplementing CPR Part 41) does not identify the serious deterioration in question, instead seeking to rely upon impairment of functional capacity as the event which will trigger the entitlement to further compensation:
>
> > 'In the event that the Claimant suffers from a serious deterioration in her physical condition arising from thrombo-embolic complication, recurrent dislocation, deep infection, sciatic or femoral nerve injury, aseptic loosening due to wear/debris, premature component failure, femoral fracture, or persistent chronic pain related to her prosthetic left hip or any revision thereof such as to significantly impair her ability to work, carry out domestic tasks or to engage in leisure and social activities on more than a temporary basis (i.e. for a period exceeding 6 months):-
> >
> > a. in the period prior to approximately age 46;
> >
> > b. following revision of her left prosthetic hip, and within the period of:-
> >
> > > i. 19 years following a first revision procedure;
> > >
> > > ii. 14 years following a second revision procedure;
> > > iii. at any time following a third revision procedure during the Claimant's lifetime;
> > >
> > other than as set out as being likely in the judgment?
> > ?
> > the Claimant may apply to the Court for an award of further damages provided that the application is made on or before three years of the date upon which ?any such serious deterioration and long-term impairment became apparent?' (emphasis added)
> > >
c. That is to elide deterioration of the Claimant's physical condition with its effect. Whilst (see Curi) any deterioration may be considered serious because of its effect, it is first necessary to identify the deterioration in question. Mr Matthews submitted that the various ways in which a poor outcome might arise might differ, but that the significant adverse outcome resulting from the various potential complications identified was the same ? each would result in a poorly functioning hip joint restricting the Claimant's mobility and disruptive of her ability to continue with her normal work, domestic and leisure activities. It was that adverse outcome which, he submitted, would constitute a serious deterioration in her condition, which was not accounted for in the prognosis of either orthopaedic expert. In the context of the orthopaedic experts' agreed position (recorded at section 5.1 of their joint statement) that, irrespective of any complication, 'the symptomatic and functional outcome of each revision procedure will be increasingly less satisfactory', a poorly functioning hip joint having the effect described by Mr Matthews would not, in and of itself, constitute a deterioration ? and, certainly, not a serious deterioration ? in the Claimant's condition. I note that, in closing submissions, Mr Matthews' position hardened by comparison with that advanced in opening [3] , when he had submitted that, '(v) whilst some of the risks will not result in a "serious deterioration" in the Claimant's condition, such as to alter the general thrust of the assumptions made?, some of them very plainly can do, such as an enduring nerve palsy or loosening necessitating early revision; (vi) if those type of risks eventuated and represented a serious deterioration in her condition, they would have very serious consequences for the Claimant's ability to lead the life that has been projected for her in reliance upon the assumptions made?' (emphasis added). Once it is acknowledged that: a) the development of a complication would not of itself necessarily constitute, or lead to, a serious deterioration in the Claimant's condition, and b) the experts are agreed that the Claimant's function will decline over time in any event, neither the existence of the complication nor the fact of decline per se can, without more, constitute the requisite serious deterioration. I consider the Claimant's argument to be circular.
(3): discretion
d. Furthermore, in my judgement, Mr Matthews was unable to identify a clear and severable risk (as distinct from a continuing deterioration); a clear-cut event which, should it occur, would trigger an entitlement to further compensation. I reject his submission that the position in this case is akin to that in Kotula, in which the claimant's risk of developing a syrinx (cyst) within his spinal cord as a complication of spinal injury arising from a road traffic accident was held by Irwin J to warrant an award of provisional damages. First, in that case (see paragraph 43 of the judgment), the Court accepted that the relevant clarity existed ? there either would or would not be a syrinx. Secondly (see paragraph 45), there was said to be no evidence to the effect that it would be difficult to determine its consequences, were it to develop; indeed, the evidence was that, on diagnosis, its consequences for the particular patient would be evident. Thirdly (see paragraph 46), it was held that a measurable proportion of those who developed a syrinx would have undeniably serious consequences. Finally, on the exercise of discretion (see paragraph 47), it was held to be 'relatively easy to establish what has flowed from the development of a syrinx in a given patient, and, having identified the effects, to decide whether or not they were serious'. By contrast, in this case, whilst it might be possible, with relative ease, to identify the occurrence of one or more of the complications set out in the draft order (with the possible exception of the last), the determination of its consequences would not be straightforward, not least as the Claimant's stated intention is to rule out those complications the effects of which could be rectified by clinical management in the short term. It follows that the consequence of any identified complication would not be apparent at the point at which that complication arose. Acknowledging that certain complications could have serious consequences, on the evidence in this case it would not be straightforward to identify that which had flowed from the complication in question, given the agreed trajectory of declining function with each surgical procedure, leaving considerable scope for later dispute over whether or not the contemplated deterioration had occurred.
>
e. I consider Mr Matthews' reliance upon H v Thomson Holidays Ltd [2007] EWHC 850 (QB) to be similarly misplaced. In that case, Cox J made an award of provisional damages in favour of a 12-year-old claimant who had sustained acute renal failure with proteinuria by reason of the defendant's breach of contract and negligence. Up to the date of trial, her condition had been stabilised by regular medication and monitoring, but it was agreed that she would inevitably progress, at some future stage, from chronic to 'end stage' or complete renal failure, requiring treatment with dialysis and/or renal transplantation. The claimant's case was predicated upon a 'best case scenario' which involved an assumed progression of her condition and defined stages at which, respectively, dialysis and kidney transplants would take place. Nevertheless, on the medical evidence, it was recognised that, for a variety of reasons, the assumptions made might prove to be incorrect. For example, even if a suitable willing donor were to be found, it might be that kidney transplantation could not be carried out, for clinical reasons. Equally, there was a risk that any transplant which could be carried out would be unsuccessful. It was not in dispute that, were either of those two risks to eventuate, H would be on dialysis for the remainder of her life, with all the attendant consequences. Thirdly, there was accepted to be a measurable risk of the need for transplantation, at a time which differed from the assumed timetable, with potential adverse consequences for H.
>
f. H sought an order entitling her to apply to the court for further damages if she were to suffer one or more of eight serious specified conditions identified in her particulars of claim, each said to be commonly associated with renal failure and/or successful kidney transplantation. The risks in question were of: stroke and cardiac failure; peripheral vascular disease; renal bone disease and osteoporosis; diabetes; cancer of one or more identified forms; and depression. Each was clearly defined and acknowledged to have serious consequences, were it to occur. On the evidence, Cox J held that she was entirely satisfied that, in the event that no transplant could be carried out, or that any transplant carried out prove unsuccessful, the claimant would suffer a serious deterioration in her condition, leaving her without any natural kidney function and dependent upon a lifetime of dialysis, with all that that would entail. There was also the agreed measurable risk that H would develop end stage kidney failure and require a transplant at an earlier stage than that which had underpinned the settlement figure which the Court was being asked to approve. In that event, a serious deterioration in H's condition would arise at a much earlier stage of her life resulting in a very different, and potentially very adverse, course of future events. Cox J considered that each such risk constituted an identifiable, clear-cut event, having very serious consequences were it to eventuate, which would significantly and adversely transform H's life and result in a substantial increase in medical expenses, future care and loss of earnings. Each of them, were it to eventuate, would, so it was held, inevitably eliminate all of the assumptions which had underpinned the settlement agreed at that stage. Each of the specifically identified complications was held to be a clearly identifiable triggering event, in respect of which the claim had been limited to complications which would result in the serious consequences which Cox J had summarised earlier in her judgment (at [29]). Each of the specified forms of cancer, requiring a different form of treatment having different costs and consequences, was also held to be a clearly identifiable trigger event for the purposes of an order. It was held that the same could be said of diabetes and depression, so long as the triggering event in each case was expressed in terms of a resulting and substantial continuing loss of earnings for H. The risk that either would occur was serious enough to make any once and for all award of damages appear wholly inadequate were the deterioration to occur. I note that these were all fact-sensitive conclusions, in circumstances in which clearly identifiable triggering events, namely the serious disease or deterioration in the claimant's condition, could be discerned, and there would be little room for later dispute as to whether the contemplated deterioration had actually occurred.
>
g. In the instant case, I bear in mind that, whilst the literature to which both orthopaedic experts referred identifies a number of serious complications which are capable of resulting from revision surgery, their agreed position, as set out at section 5.3 of their joint statement, is framed in the following terms (with emphasis added):
>
> '?
>
> Mr Ashworth agrees with Mr Conlan's opinion put forward in his addendum report in relation to risks associated with the 1st, 2nd and 3rd revision operations, that the risk increases with each subsequent operation. Mr Ashworth has addressed this in his report estimating a 5% risk of a complication following the 1st revision operation which would restrict activity, doubling with each operation to 10% for the 2nd revision and approximately 20% for the 3rd revision. This figure is lower than our estimate for the overall risk of a complication because it deals with those issues which are likely to impact the Claimant more than minimally relating to the need for additional assistance or earlier subsequent revision surgery. This opinion was informed by the article by Badarudeen et al (2017). Mr Conlan agreed with the percentages noted above.'
>
> Thus, the emphasis is on complications, compendiously collated, which would restrict the Claimant's activity, and which are likely to be of more than minimal impact, resulting in a need for additional assistance or earlier subsequent surgery. There is no identified clear risk, severable from continuing deterioration, constituting a clear-cut identifiable event or threshold which, were it to occur, would trigger an entitlement to further compensation (or, hence, the point from which time would start to run for the making of an application to the Court). Whilst it might prove possible to identify (for example) a thrombo-embolic complication, should it occur, the identified trigger is the serious deterioration in the Claimant's physical condition which 'arises from it' and which 'significantly impair[s] her ability to work, carry out domestic tasks or to engage in leisure and social activities on more than a temporary basis..' The orthopaedic experts agreed (at sections 5.3 and 5.4 of their joint statement) that they were unable to provide detailed figures for the various possible complications identified in the literature in relation to the hip replacement implants used in this case. The number of such implants was said to be too small to extract meaningful first, second, and third revision complication data, for which reason, they said, they further considered that it was not possible to identify in detail the possible outcomes in the event of a complication. That latter conclusion indicates that the degree and consequences of the risk to which any given complication might give rise cannot be ascertained, for which reason I do not share their view that an award of provisional damages is appropriate, that being a matter for the Court, in any event. The Defendant is right to submit that it would be difficult to separate out a decline in function owing to some complication falling within the compendious description advanced by the Claimant from that which is already to be taken into account in the primary assessment of damages. I am satisfied that, in the form identified, the contemplated compendium of risks is not such as to render an award of damages which recognises its existence wholly inadequate to compensate the Claimant for the position in which she would find herself should those risks materialise. Together with the separate risk of early THR failure (which would, in essence, result in accelerated timing of the first revision) they may be factored into a once-and-for-all award which will do justice in all the circumstances.
Girdlestone procedure
The risk of the need for a Girdlestone procedure, acknowledged by both experts, is of a different nature. It is said to be less than one per cent, but its impact, were it to eventuate, is agreed, on any view, to be profound and severe. Its consequences would be readily ascertainable and serious because of their effect on (at least) the activities and capabilities of the Claimant.
Thus, the risk has a low probability of eventuating, but grave consequences should it do so. I reject the Defendant's submission that a Girdlestone procedure would need to result in permanent confinement to a wheelchair in order to constitute a serious deterioration in the Claimant's physical condition ? as Mr Ashworth was clear, amongst the consequences of such a procedure would be severe mobility restriction. Both experts were agreed that her quality of life would be significantly affected. A once and for all award which included a sum for the chance would be wholly inadequate to compensate the Claimant for the position in which she would find herself were that chance to materialise, because the probability that it will occur, in particular before the Claimant is elderly, is very low and the provision which will be made is likely significantly to undercompensate her were it to eventuate.
The relevant risk is clear and severable. A Girdlestone procedure is a clear-cut event and there would be little (if any) room for later dispute over whether the consequential contemplated serious deterioration had occurred. The degree and consequences of the risk are clear. I am satisfied that justice is better done by reserving the Claimant's right to return to Court in the event that a Girdlestone procedure is required, at any point during her lifetime, and that it should be the undergoing of the procedure per se which triggers that right (and the running of time for the making of an application), rather than any specific consequence of it.
Compensatory Damages
The compensatory principle
As was held by Warby J (as he then was) in A v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB), at [9] and [12] ? [13]:
'9. The overall aim of compensatory damages for tort is to place the claimant, so far as money can achieve this, in the same position as she would have been in if she had not suffered the wrong for which she is now being compensated: Livingston v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn). As Lord Woolf MR observed in Heil v Rankin [2001] 2 QB 272 [22]-[23], the principle is that 'full compensation' should be provided, for both financial and non-financial losses.
>
?
12. When it comes to compensation for future costs, a claimant is entitled to damages sufficient to meet her reasonable needs arising from her injuries. In considering what is reasonable for this purpose the court should have regard to all the relevant circumstances. For these uncontroversial propositions Ms Vaughan Jones QC for the defendant cited Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB), [2012] Med L R 1 5.
13. Miss Vaughan Jones also relied on a proposition in the same paragraph of Swift J's judgment, that the relevant circumstances include "the requirement for proportionality as between the cost to the Defendant of any individual item and the extent of the benefit which would be derived by the Claimant from that item". I accept, and I did not understand it to be disputed, that proportionality is a relevant factor to this extent: in determining whether a Claimant's reasonable needs require that a given item of expenditure should be incurred, the Court must consider whether the same or a substantially similar result could be achieved by other, less expensive, means. That, I strongly suspect, is what Swift J had in mind in the passage relied upon. The Defendant's submissions went beyond this. They included the more general proposition that a Claimant should not recover compensation for the cost of a particular item which would achieve a result that other methods could not, if the cost of that item was disproportionately large by comparison with the benefit achieved. I do not regard Whiten as support for any such general principle, and Miss Vaughan Jones did not suggest that Swift J had applied any such principle to the facts of that case. She did suggest that her submission found some support in paragraph [27] of Heil v Rankin, where Lord Woolf MR observed that the level of compensation "must also not result in injustice to the Defendant, and it must not be out of accord with what society would perceive as being reasonable." Those observations do not in my judgment embody a proportionality principle of the kind for which the Defendant contends, and were in any event made with reference to levels of general damages for non-pecuniary loss. Miss Vaughan Jones cited no other authority in support of the proportionality principle relied on. I agree with the submission of Mr Machell QC for the Claimant, that the application to the quantification of damages for future costs of a general requirement of proportionality of the kind advocated by Miss Vaughan Jones would be at odds with the basic rules as to compensation for tort identified above.'
Citing that passage with approval, in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) [4] , Ritchie J held, at [113]:
'I agree with Warby J. Proportionality has a role to play but it is limited. In my judgment the two gates through which the Claimant must pass to obtain an award of future special damage under any head are:
> (1) does the Claimant have a reasonable need for the expense as a result of her injuries, pain, suffering and loss of amenity with the twin aims of gaining some benefits and taking steps towards putting her back into the same position she would have been in but for the injuries; and
>
> (2) is the claimed expense reasonable compared with other less expensive methods of satisfying the reasonable need and taking those steps.'
>
In this case, a number of items claimed as special damages intended to avoid or ameliorate fatigue and discomfort are resisted by the Defendant on the basis that they do not arise from any clinical need and will undermine the Claimant's ability to maximise the longevity and conditioning of her hip joint, thereby reducing the activity of which she is capable and compromising her longer-term outlook. Consistent with the above principles, where a claimant seeks damages representing the cost of services, equipment and/or accommodation designed to ameliorate or avoid pain, fatigue or discomfort arising from her injury, the question is whether that claimant has a reasonable need in all the circumstances for the expenditure claimed. In determining the reasonableness of the claimed need, consideration will need to be given to whether the same, or a substantially similar, result could be achieved by other, less expensive, means. If it is reasonable for the claimant to incur the relevant expenditure, an award of special damages will be justified.
Consideration of what is reasonable in all the circumstances will include consideration of the nature, extent, frequency, duration etc of the pain, fatigue or discomfort which gives rise to the claim. If the discomfort, fatigue etc is 'nuisance-level', in the sense in which that term is used by Mr Ashworth in this case, it is unlikely to give rise to recoverable special damages requiring substantial expenditure. Put another way, the lower its level of severity, the more acute the need for careful scrutiny of reasonable necessity and the narrower the scope for substantial expenditure. Further, if the need claimed is contra-indicated by the clinical evidence, including on the basis that its provision is likely to impede recovery or give rise to/accelerate a deterioration in the claimant's condition, that will be a relevant consideration tending against its reasonableness.
When awarding general damages, the court will take into account the claimant's experience of living with the relevant injury, which can include the discomfort, fatigue and effort inherent in living with consequential disability. As Cotter J observed, in Scarcliffe v Group [2023] EWHC 1565, at [207], ' Sometimes potential provision eg of equipment, is not reasonable in which case consideration should be given to reflecting any consequential loss within general damages for pain suffering and loss of amenity.'
The principles applied: future losses
Applying those principles in this case, and having regard to the findings which I have made above, I conclude as set out below.
Fatigue and discomfort
I do not doubt that such additional discomfort and fatigue as the Claimant has experienced to date, and much of that which she is likely to experience in the future, will have resulted from the injury the subject of these proceedings, such that, as a matter of principle, they may be compensable, even where there is an acknowledged absence of a clinical need for the provision sought. But it does not follow that the mitigating measures sought are reasonably necessary having regard to the nature and extent of the relevant symptoms, certainly at a stage significantly prior to any of the revision operations. In July 2023, the Claimant told Ms Benfield that her left hip would ache at times, described as rather more of a discomfort, following prolonged standing and walking. In August 2023, at a time when she had been undertaking two six-hour shifts per week at Nando's, she told Mr Ashworth that they were not causing her any issues. At around the same date, she told Mr Conlan that she then felt that she was 'as mobile as the average person'. At trial, the Claimant described some discomfort in her back 'after a while', in her volunteer role, when she was hunched over, getting close to her work, stating that she would have to straighten herself every so often.
At its highest on this issue, Mr Conlan's evidence was that the Claimant would be more prone to experiencing difficulty or greater fatigue when climbing stairs at an earlier age than would someone who did not have an implant. In Mr Ashworth's view, the Claimant might have discomfort when walking longer distances and would be symptomatic if she were to push herself too far. Physiotherapy, yoga and Pilates would serve to maintain muscle strength and avoid fatigue. He observed that most patients who experienced back pain and minor aches would manage their own affairs without support. I have recorded the orthopaedic experts' shared view of the importance of muscle conditioning and recognition that deconditioning will itself lead to weakness, causing pain and fatigability.
Mr. Matthews' position is that that is to miss the point. He cites, by way of example of the approach which he contends that the Court ought to adopt, a hypothetical situation in which a claimant's car is damaged as a result of a tort which also results in a minor injury to his leg. Though it may be possible for him to manage all of the normal incidents of life using public transport, that would come at the expense of additional difficulty, frustration, time, effort and discomfort. As the purpose of his car had been its amenity value, a claim for a replacement vehicle would be unanswerable, even if the damaged vehicle, typically, had stood unused for 80 per cent of the week. Yet, he submits, on Ms Power's analysis, the replacement vehicle would fall into the category of 'nice to have' ? that is, an item which would improve comfort, convenience, lifestyle, or enjoyment, but was not reasonably required by the claimant to cope with, or mitigate, the consequences of his injury ? and, as such, his claim would fail.
I am satisfied that Ms Power is correct to regard that argument as setting up a straw man. As she observed, in Mr Matthews' example, the car itself was damaged as a result of the hypothetical tort, and would be replaceable on that basis. Its loss is not an example of the type of loss to which she objects. Nor is her objection founded on the difference between that which the National Health Service, or Social Services, might consider to be truly necessary in the particular circumstances. Properly characterised, her objection is to: a) the low-level nature of the symptoms which various aspects of the claim are sought to alleviate ? and, thus, to the reasonableness of the Claimant's need to alleviate them in the manner and at the cost claimed ? and b) to the fact that the claimed means of alleviation are, on the Defendant's case, actively contra-indicated by the therapeutic requirements which will remove, or substantially ameliorate, the physical deficit and associated symptoms which the Claimant would otherwise sustain. She contends that, as a matter of principle, premature fatigue and discomfort can be compensated as an element of loss of amenity within an award of general damages. Consistent with the caselaw cited above, I am satisfied that she is correct.
That being so, separately in respect of each head of expenditure which is designed to alleviate fatigue and discomfort, it will be necessary to determine whether the Claimant's reasonable needs require that it be incurred.
Single-level/dormer accommodation/through-floor lift
I begin with consideration of whether it is appropriate to for the Claimant to be provided with single-level or dormer accommodation at the stage at which she commences independent living, which is assumed to be somewhere between the ages of 25 and 27. The cost, as agreed by the accommodation experts, would be in the region of ?667,500, for a three-bedroom true bungalow; ?850,000, for a four-bedroom true bungalow; ?600,000, for a three-bedroom dormer bungalow; and ?680,000, for a four-bedroom dormer bungalow. In each case, to the purchase price would be added the costs of certain adaptations.
Provision of any such property (or, indeed, the installation of a through-floor lift in a two-storey property, at an agreed cost of c.?28,000) at this early stage would not be referable to any functional disability. Mr Matthews accepts that 'there is no medical need for single-level accommodation, certainly prior to the approach to [the Claimant's] first revision procedure', which would encompass the period during which any need to carry young children up and down stairs would arise. Even if, at that stage, the Claimant might struggle to carry a toddler up and down stairs, a toddler is capable of walking up and down stairs under supervision; the claim proceeds on the basis that she will share childcare with a committed long-term partner, and Ms Benfield's position was that she did not think that the Claimant should ever not use stairs.
The earliest point at which revision surgery is likely to be required is at the age of 47. Even then, the resulting limitations in mobility are expected to occur only for the few months immediately prior and subsequent to surgery. As at the date of trial, the Claimant had near-normal mobility, which is predicted to continue for most of her life. She is not wheelchair-dependent now and is not expected to become so in the future, other than on a transient basis, or in the event of a Girdlestone procedure, in respect of which an award of provisional damages will be made. Prospective temporary, short-lived and infrequent mobility restrictions twenty years hence do not give rise to a reasonable need for provision of single-level or dormer accommodation, or for installation of a through-floor lift, within the next two years. Whilst it is also submitted that provision at an early stage would protect the Claimant's vulnerable mental health, there is no evidence of the latter justification. In the absence of a demonstrated reasonable need as at the time from which the relevant measure is sought, or which will arise imminently thereafter, there is no entitlement under the compensatory principle.
The only remaining justification advanced is the avoidance of low-level fatigue or discomfort. The measures sought would, however, require very substantial expenditure, in circumstances in which the symptoms on which reliance is placed are low-grade, intermittent, do not impede daily functioning, and are manageable by pacing one's activity. Moreover, both orthopaedic experts advised that stair use would improve and maintain hip function. Stair-avoidance is, therefore, not medically indicated, and would, in fact, be counter-therapeutic.
In all such circumstances, I am satisfied that none of the measures identified is reasonably required from the point at which it is sought.
That is not to disagree with, or depart from, the approach adopted by Warby J in A and by Ritchie J in CCC. Neither was seeking to redefine the overarching test of reasonable necessity; rather each was seeking to clarify the meaning of proportionality once reasonable necessity had been established. But even applying that narrow proportionality test, the desired measures are intended to avoid the need for stair use intermittently, when the Claimant is fatigued or uncomfortable. The same practical result could be achieved, at no cost, by pacing activity and avoiding stair use on bad days only, when downstairs rooms might be used, on a temporary basis. All such measures would produce substantially similar functional outcomes and I do not accept that any would involve indignity for the Claimant. Accordingly, none of the proposed measures is reasonably required, or proportionate in the narrow sense articulated by Warby J.
Further, having accepted Mr Ashworth's position, I am satisfied that, on the balance of probabilities, there will never come a point at which a reasonable need for single-level or dormer accommodation will arise by reason of the Defendant's negligence. Noting Mr Nocker's view of the importance of providing disabled individuals with a home environment free from unnecessary barriers, in which they can move around with some autonomy, safety and a degree of independence, I am satisfied that that is what the Claimant will have when living in two-storey accommodation, subject to any necessary provision of aids and/or assistance during peri-operative periods. On that basis, it is unnecessary to enter the somewhat arid debate over whether the Claimant ought properly to be considered disabled outside the peri-operative periods.
For the sake of completeness, had I been satisfied of any reasonable need for a measure facilitating stair avoidance, I would have considered the appropriate measure to have been a through-floor cube lift to have been the appropriate measure. Mr Nocker made clear that, whilst his preference would be for a dormer or true bungalow, it was not his position that a through-floor lift would not meet any need to avoid stairs. He acknowledged that the maintenance agreement could make provision for the supply of reserve batteries in the event that the lift broke down, a prospect itself now significantly less likely than in the past. I note that, on the premise that the Claimant will never be in a position where she is incapable of using stairs, she will be able to use them in that unlikely event. Accordingly, no safety risk is created. Aesthetic concerns and the need to keep the circulation area in front of the lift on both floors free of alternative use, are not such as to displace the clear conclusion that a lift would be the proportionate measure, if any were required, meaning that no reasonable need would arise for the significantly more expensive true or dormer bungalow.
Adaptations required to one or more properties
The accommodation experts agree on the following position, in the but for scenario: a) at or around the age of 25, the Claimant would have rented a one-bedroom flat, at an annual cost of between ?10,200 and ?10,800. At the age of 30, she would have purchased a two-bedroom house, at a cost of ?240,000. At the age of 38, she would have purchased a three-bedroom house, at a cost of ?432,500. All purchases, it is assumed, would have been aided by the financial contribution of a partner. Mr Hill considers that, at or after the age of 67, the Claimant would have moved to a two-bedroom bungalow, at a cost of ?432,500, reasoning that it is not uncommon for people to move to single-level accommodation following retirement. Mr. Nocker considers that suggestion to be overly speculative and it is not agreed.
In the injured scenario in which the need for single-level/dormer accommodation has been rejected by the Court, both accommodation experts acknowledge that there will be a need for certain property adaptations to be made, potentially to more than one property. The need for others is proposed by Mr Nocker, but disputed by Mr Hill. With two exceptions (considered at sub-paragraph (h)), I need address only the latter category below:
a. Mr. Nocker recommends installation of a carport or canopy, with a view to minimising the risk of a slip or fall. Mr. Hill considers such an adaptation to be required only in the event that long-term wheelchair use, or a very unsteady gait, is considered probable, such that the Claimant would require a lot of time to transfer to and from a vehicle, or where carer assistance would be required for that purpose. Mr Hill told me that, in 10 years of undertaking disability adaptations, he had only come across a need for a carport by those having considerably greater disability than the Claimant. Accepting that the need for wheelchair use will be transient, and that the carport area would be small and would not reduce the risk of a slip or fall elsewhere outside the property, and having regard to the Claimant's projected level of functionality, I consider that, in the event that the property lacks a carport or canopy, no such adaptation will be required at any stage.
b. Mr. Nocker recommends the installation of grab rails at entrances and exits, a recommendation which is rejected by Mr Hill on the basis that, on Mr Ashworth's evidence, there would never be a need for that adaptation, and that, in any event, any such requirement is likely to be met by Social Services. Acknowledging the latter point to be speculative and not to constitute a sound basis for objection, I agree that, on the evidence of Mr Ashworth which I have accepted, no reasonable need for the adaptation proposed will arise at any stage.
c. Mr Nocker recommends the installation of low-rise steps; redecoration (further to the raising of power sockets throughout the house); and certain external works, comprising the levelling of a patio; and the levelling and widening of paths. With the exception of path widening, those recommendations were initially accepted by Mr Hill, but only from the age of 82 onwards. Those relating to external works were later rejected altogether, on the basis of his understanding that Mr Ashworth no longer recommended the use of a walking frame. I have found that, on the balance of probabilities, the use of such a frame will be required, from the age of 82. The objection raised to path widening is based on the absence of any projected permanent need for a very large orthopaedic wheelchair of the type used by an individual who has very serious disabilities. The justification advanced by Mr Nocker is the need to remove any trip hazard. I am satisfied that the agreed need to level the paths will have that effect and that no additional hazard referable to their width has been demonstrated, bearing in mind that a walking frame will require no widening of internal doorways. On the basis of Mr Ashworth's position as accepted, there will be no need to make any of these relatively minor adaptations until shortly before their use will be required. Provision should be made for them to be put in place when the Claimant is 81 years old, before which time no reasonable need arises. All of them seem to me to be capable of being effected with low-level disruption at a time when the Claimant (and any partner) are living in the property.
d. In the absence of any permanent need for a large wheelchair which would necessitate the proposed internal modification works, I reject Mr Nocker's evidence that the latter will be required, at any time.
e. Mr Hill disagrees with Mr Nocker's recommendation for provision of a visual door entry system with lock release function. No such recommendation has been made by either care expert. The assumptions underpinning the recommendation are that the Claimant will be slower in getting to the door than she would have been in the but for scenario, and that it will confer security benefits. In cross-examination, it was put to Mr Hill that the need for the latter fell to be considered in the context of an acknowledged psychiatric vulnerability, albeit that neither psychiatrist had put forward the need for such a measure. I am not satisfied that the evidence establishes a degree of vulnerability at any time which will require provision of the relevant entry system.
f. The need for an intruder alarm is also disputed, on a similar basis. For essentially similar reasons, I consider there to be no reasonable need for its provision. In addition, I accept that a security alarm system tends now to be a standard household item, which the Claimant would have been expected to have purchased (were it not already to have been installed) for each property which she would have owned in the agreed but for scenario.
g. It would appear that the difference between the allowances respectively made by each expert for an agreed necessary adaptation to the shower room arises from the larger dimensions of that room as proposed by Mr. Nocker. Here again, I am satisfied that Mr Hill's position is to be preferred, there being no reasonable need at any time for a room of dimensions which could accommodate a large wheelchair. Having regard to the evidence of Mr Ashworth, the smaller adapted bathroom will reasonably be required from the point at which the Claimant purchases her first home, unless that home, and any subsequent home to which she would have moved in the agreed but for scenario, were already to contain a walk-in shower. In that event, the earliest occasion on which the adaptation would be required would be at the age of 66, suitably in advance of the second revision operation.
h. The minor kitchen modifications which the accommodation experts agree to be required in order to accommodate raised appliances, at a cost of ?10,880, will reasonably be required from the point at which the Claimant purchases her first property. They will also be required, once, in each of the properties to which the Claimant would have moved on the agreed but for scenario, as the Defendant acknowledges. The same is true of the agreed provision for smoke, heat, and carbon monoxide detectors which will avoid the Claimant's need to use ladders.
i. Mr Nocker recommends making provision for new curtains, and for the fitting of non-slip floor coverings to accommodate walking frame use. Mr Hill considers there to be no need for curtains over and above those which the Claimant would have purchased in any event. Similarly, he considers that it is to be expected that the Claimant would have updated her floor coverings by the age of 82 in any event, using material of a similar cost to that proposed. The former point is self-evidently good, the latter less persuasive. The timing of any updating of the flooring in the but for scenario is difficult to ascertain, as is the material which would have been used and its cost. There is a reasonable need for non-slip flooring specifically, from the age of 82 and I allow that cost, which will need to be extracted from the global cost of flooring and curtains provided by the accommodation experts. The works are able to be carried out whilst the Claimant and any partner are living in the house, and will be required when the Claimant is 81 years old, so that they will have been completed before the peri-operative period for the third revision commences.
j. Mr Nocker makes provision for unspecified general repairs in the sum of ?8,000. Mr. Hill considers that provision to be high, and at a level reflective of work the need for which will be picked up on survey and reflected in the purchase price. I am not satisfied that the nature and/or need for the repairs claimed has been satisfactorily demonstrated, on which basis I reject this element of the claim.
The accommodation experts have also considered any likely increase in property running costs on the hypothesis that the Claimant will continue to live in a two-storey property, as anticipated by Mr Ashworth. Mr. Nocker considers that allowance ought to be made for additional heating and electricity costs; maintenance of fixed special equipment; building and contents insurance; and property maintenance. Mr Hill disputes the need for any allowance, other than for property maintenance, for which he makes different financial provision. In short, he contends that all would have been incurred in the but for scenario, in which the Claimant would have been living in and using each property in the same way. Further, he notes that the marginal heating and electricity costs proposed by Mr Nocker exceed the full costs typically payable in connection with a three-bedroom house. I accept Mr. Hill's position, for the reasons which he gives, and reject this head of special damages.
On the above findings, the Claimant will purchase the same types of property which she would have acquired in the agreed but for scenario, and at broadly the same stages. Her injury gives rise to a need for certain adaptations to be made, which will be more extensive in the final property. The Defendant will be liable for the cost of the adaptations required at each stage, recoverable by the Claimant as special damages. As there will be no injury-caused differential in the capital purchase price of any property, the need for a Swift v Carpenter calculation will not arise. No deduction will fall to be made for the contribution of any putative partner, as the requisite adaptation costs arise solely from the consequences of the injury.
Domestic support from the age of 27 to 60 outside the peri-revision periods
This claim is made from the age at which the Claimant is expected to live independently, and for periods excluding those surrounding future surgery, or when pregnant, which are separately considered. Two hours per week at an hourly rate of ?13.95 are claimed, equating with an annual cost of ?1,450.80. Mr Matthews urges the need for the award claimed in order to avoid the problems which the Claimant has experienced to date with pacing herself and to enable her to live an active life, akin to that lived by her friends, without discomfort and fatigue.
Having regard to my earlier findings, on the balance of probabilities I am not satisfied that this head of loss is properly recoverable. For reasons which I have explained, I consider that, with the recommended activity and associated muscle conditioning, from the time of independent living until the age of 60 the Claimant will not reasonably require the domestic assistance claimed, because her level of discomfort and fatigue, if any, will not be at a level or frequency which would render that requirement reasonable. That is underpinned by the conclusions of Mr Ashworth, which I have accepted, on which basis Ms Benfield agreed that no such need arises.
Requirement for domestic support between the ages of 60 and 66
I have rejected the bases upon which Mr Conlan envisages an increase in fatigue over this period. The orthopaedic experts agree that the Claimant's hip will function well following the first revision and that normal day-to-day activity will be of clinical benefit. Other than in the period running up to the second revision, I am not satisfied that domestic support will be required.
Physiotherapy and support during pregnancy
The claim for physiotherapy during pregnancy is modest, amounting to four sessions in total, having a combined cost of ?240. It was not recommended by Mr Conlan, but Ms Filson considered that it would be of value. For her patient whose circumstances she considered to have been similar to the Claimant's, she had used kinesiology taping over the lower back to provide support and assist with pain. She had also undertaken some soft tissue work around the relevant area, which had eased the patient's pain, and had given some advice on lifting and bending whilst pregnant, all of which she considered to have been beneficial. Ms Dickinson's view was that all of the advice which would be required was in the public domain and well covered by midwifery services. Her recommendation was that the Claimant continue swimming, which she considered would be more beneficial than adjunct taping and actions which would not alter the course of the pregnancy. Her position was that, in general, physiotherapy was not a number one treatment during pregnancy, though the Claimant might benefit from postural advice. In short, Ms Dickinson considered that the sessions claimed were not reasonably required.
I am mindful of the success of the treatment of which Ms Filson gave evidence. Acknowledging that there is certain information available in the public domain and through midwifery services, neither confers the physical benefits of a physiotherapy session. In light of the material contribution which Mr Ashworth agreed would be made to the pain which the Claimant would otherwise experience in pregnancy, and the fact that he, too, recommended physiotherapy at that time, I consider that, on the balance of probabilities, the measure identified is reasonably required and I allow this head of loss.
I am also satisfied that it would be reasonable to provide some domestic assistance to mitigate the effect of pregnancy-related pain, over and above but for pain, albeit not such as to reduce the daily activities which are agreed to be beneficial. I consider the claim for three hours per week, over 13 weeks, amounting to ?544.05 in total, to be reasonable.
Future care in the last trimester of pregnancy and the first three months post-partum
The total sum claimed is ?12,192.05, representing 13 weeks of domestic assistance for three hours per week, at a rate of ?13.95 per hour, and 13 weeks of childcare assistance for 56 hours per week, at a rate of ?16.00 per hour.
I have preferred Mr Ashworth's conclusions as to the Claimant's likely needs over the periods in question. To the extent that there might be some additional assistance required at such times, born of fatigue or discomfort, I accept his view that it is reasonable to assume that it will be provided by the Claimant's partner as part of his shared childcare responsibilities. In those circumstances, I am satisfied that the third trimester will not give rise to a reasonable need for additional care or assistance beyond that ordinarily encountered in an uncomplicated pregnancy, and that, on the same basis, there will be no reasonable need post-partum for paid childcare or other support. My acceptance of Mr Ashworth's position results in the care experts' agreed position that neither need arises.
Travel
The Claimant ? rightly in my judgement ?accepts that, in the immediate pre-and post-surgical periods, there is likely to be no need or desire to travel, and, on the findings which I have made, she will not be working in the periods prior or subsequent to the second and third revision operations, such that no need for work-related travel will arise. The compensatory principle does not require an assumption that any holidays which the Claimant would have taken in the but for situation would have been taken within the peri-operative period and there is no evidence to that effect. Indeed, in the knowledge of the times at which each revision surgery and the associated increased level of disability will occur, the Claimant will be in a position to plan elective travel accordingly. In the but for scenario, travel would need to have been planned around other needs and commitments, as is true for everyone.
In so far as a family event might give rise to a need and desire to travel, the likelihood is that the Claimant will be travelling with at least one family member who will be able to assist her as necessary, such that provision for a live-in carer and associated travel and accommodation costs would be disproportionate. In any event, in relation to the period post-dating the third revision, Ms Benfield has made no care, including holiday-related, recommendations, on the basis that they are likely to have arisen in any event at the relevant age.
The cost of reviews
For reasons which I have explained, I allow the total cost of regular reviews, commencing ten years after the THR, and taking place every five years thereafter until the end of the anticipated 25-year lifespan of the hip replacement, together with two further follow-ups after the second revision, as recommended by Mr Ashworth, in the total sum of ?4,500.
The first revision
I have found that there will be a five-month period leading up to the first revision over which the Claimant will require support. It is agreed that she will do so for four months following surgery. Thus, the total peri-operative period will be nine months. Having preferred Mr Ashworth's evidence as to the Claimant's functionality and likely symptoms going into that period, it is appropriate to consider Ms Benfield's recommendations on that hypothesis. Ms Benfield has costed for the care which she considers would be provided by a caring partner on an ad hoc basis, but considers that it is not possible to assume, at this remove, that the Claimant will in fact have such a partner and that it is therefore right to cost at commercial rates throughout the peri-operative period. Ms Lawson's position is that prior to the operation, care should be provided gratuitously. Following the operation, a blend of gratuitous and professional care would be appropriate. I agree with that premise, having regard to the orthopaedic evidence and the fact that Ms Benfield identified no element of care which could not be provided gratuitously in that period. The premise of the claim is that the Claimant will have a partner. The application of a commercial rate to all care would contradict that premise. Recognising that crystal-ball gazing over a period in excess of twenty years into the future has its inevitable limitations, I am satisfied that the appropriate approach is to cost for gratuitous care, wherever recommended in this period by Ms Lawson, but to recognise the uncertainty inherent in the exercise by awarding a modest contingent sum. The difference between the two hourly rates is ?20.46. The contingent sum is to be calculated by adding ?10 to the gratuitous care rate which would otherwise be payable, for each hour of gratuitous care. Subject to that, Ms Lawson's approach is to be preferred.
In the period surrounding the first revision operation, the Claimant's children will not be young. Any need to take them to and from activities, family gatherings etc can be met by her partner, in so far as one or both of them are not able to travel unaccompanied.
The second revision
I have found that the overall duration of the peri-operative period during which support will be required is as for the first revision surgery. Here again, I have regard to Ms Benfield's recommendation on the basis that Mr Ashworth's position has been preferred. I note Ms Benfield's acknowledgement that the commercial care rates provided by Ms Lawson are reasonable and would meet the Claimant's needs. Albeit that the distinction between the rates adopted by each expert over the relevant period is relatively minor, those assessed by Ms Lawson include the cost of travel. It follows that the proportionality principle requires that Ms Lawson's rates be adopted and I do so. Adopting Mr Ashworth's position, as I have done, the experts agree that the required number of hours of weekly agency care would be 14 and of domestic assistance four.
The third revision
I have found the total period over which assistance will be required to be 12 months and have preferred the evidence of Mr Ashworth as to the Claimant's likely needs, which will not give rise to a need for live-in care. That being so, the care experts are agreed on the agency care required for personal care and domestic assistance, on the need for online deliveries and on their respective costs. The number of weeks will need to be adjusted having regard to the duration of the peri-operative period as I have found it to be.
Domestic support following the first revision until the age of 60
I have found no such support to be required. This head of loss fails, other than in relation to the need for assistance in connection with heavier activities.
Domestic support between the ages of 60 and 67
I have found no such support to be required. This head of loss fails, other than in relation to the need for assistance in connection with heavier activities.
Domestic support between the ages of 67 and 82
Three hours per week at the rate of ?13.95, equating with ?2,176.20 per year, are agreed to represent the Claimant's reasonable need in this period.
Case management at the ages of 67 and 82
The basis on which this head of claim is advanced is that professional assistance will be required having regard to the number of professional arrangements to be made at each stage and the period which will have elapsed since the Claimant was last au fait with those arrangements. I acknowledge that the Claimant will be familiar with, and able to anticipate, the nature of the various needs which will arise and that many of them will be readily ascertainable through use of online search engines as the time approaches. Nevertheless, I accept Ms Benfield's position that a significant period of time will have elapsed since her last involvement; matters will have moved on since the Claimant's earlier experiences; and the Claimant will at the time be of increasing age, with some decline in function. In all such circumstances, the sourcing and co-ordination of appropriate practitioners is, I am satisfied, a reasonable need. I accept Ms Benfield's costings, of ?8,310 (at 67) and ?14,980 (at 82) as being appropriate, in addition to the agency costs for which Ms Lawson has made provision.
Aids and equipment
The need for aids and items of equipment is agreed subject to the issue of the profiling bed, for which Ms Benfield has made provision from the age of 47 onwards, on the assumption that Mr Conlan's evidence is to be preferred. In the event, I have preferred that of Mr Ashworth.
In any event, there is no dispute as to the absence of any clinical need for provision of a profiling bed at any time. The issue is whether it is reasonably required (and, if so, from what stage) to accommodate the Claimant's fatigue and discomfort when it arises. Ms Lawson was clear that a profiling bed was not a recommendation for quality of life purposes, being equipment recommended for those who cannot get in and out of bed, or who require hoisting, or personal care whilst in bed, rather than for individuals who have no difficulty with transfers. Had I preferred the evidence of Mr Conlan, I would still have considered a profiling bed not to have been reasonably required, at any stage.
Extra legroom seats
This claim is advanced on the basis that Mr Conlan's evidence is preferred, though I note that, explaining his opinion in relation to this issue, Mr Ashworth told me, 'It's the hip angle, I think, yes, rather than the leg room. And without measuring [the Claimant's] leg length, there may be no benefit to having more leg room, because there may be enough room in the seat anyway. But that's not my area of expertise, that would require an airline.' Whilst accepting Mr. Ashworth's evidence that extra legroom per se would not have an impact on the angle at which the Claimant's hip would be set, and that the relevant need is in fact to have a seat which can rake backwards, I am satisfied that reliable ability to achieve the latter is more likely to be afforded by an extra legroom seat, in which the Claimant will have greater opportunity to manoeuvre, and, thus, to alter the angle of her hip. I am satisfied that the sum claimed in this connection is proportionate to the nuisance level discomfort which she might otherwise experience when sitting in a standard-pitch aeroplane seat, for an extended period, and therefore consider this measure to be reasonably required on long-haul flights. I allow this head of claim, at the claimed rate of ?100 per annum, from the end of the recovery period which will follow the first revision onwards.
Luggage-carrying service
The care experts and Mr Conlan are agreed on the need for a luggage-carrying service, at the modest annual cost of ?226. In this respect, Mr Ashworth was an outlier, considering that no such service would be required other than during the peri-revision periods. I am satisfied that the Claimant has a reasonable requirement for that service which will avoid the need for her to manoeuvre potentially heavy items over lengthy distances, and assist in managing fatigue and discomfort. In relation to each such need, the sum claimed is proportionate, in the sense explained in A.
Access to a pain management consultant
It was Mr Conlan's position that the taking of analgesics and anti-inflammatory agents over protracted periods often gives rise to unwanted side effects, such that it would be in the Claimant's best interests to be able to see a pain specialist from time to time. He opines that it can take several months to arrange an NHS appointment, on which basis recommending 10 private consultations with a consultant specialising in pain management. An allowance of ?2,000 is sought. Whilst making no allowance himself, Mr Ashworth acknowledged that it would be appropriate in the event of any inability to access a GP and that private patients experiencing post-operative pain would have access to a pain consultant (albeit that, in his experience, most of those patients would have undergone a knee, rather than a hip, replacement). In those circumstances, I am satisfied that the Claimant has established a reasonable need for the relevant access and I allow this head of claim in relation to each of the three peri-revision periods. For the avoidance of doubt, in the absence of any demonstrated need at any other time, no further allowance is made.
Occupational Therapy
As I have accepted Mr Ashworth's position, the parties agree that the Claimant's need is for three blocks of occupational therapy, at the aggregate cost proposed by Ms Lawson of ?5,652, at the time of each revision period, and that no further provision is appropriate.
Podiatry
The aggregate reasonable costs are agreed to be ?166.50 per annum. Whilst Ms Lawson's evidence was that the Claimant had shown her how she would have cut her toenails herself, I accept that it is an activity which places strain on the joint and that the modest cost of podiatric care is reasonably required in those circumstances, with immediate effect.
Travel costs during surgical periods
Ms Lawson and Ms Benfield agree that it is appropriate to make provision for the use of taxis over a 16-week period in connection with the first and second revisions. Ms Lawson defers to the Court on whether it is reasonable to assume that, within each such period, the total weekly allowance which ought to be made is ?150, on the basis that it cannot be known where, or how far from the relevant hospital, the Claimant will be living at those times, acknowledging that she is unlikely to be living next door to that hospital.
Whilst Ms Lawson admitted of a need for taxi use only for the purpose of hospital visiting, I bear in mind Mr Ashworth's opinion (implicit in section 7.7 of the orthopaedic joint statement) that the Claimant will be unable to drive for at least a few weeks at the time of each relevant revision. That being so, I acknowledge the wider need for taxi journeys at the time of the first and second revisions contemplated by Ms Benfield. Doing the best I can, inevitably on something of a rough and ready basis, I consider that, in each case, an allowance of ?100 per week over 16 weeks is reasonable in all the circumstances, bringing the total cost to ?3,200.
Furnishings and food expenses for live-in carer
As I have preferred Mr Ashworth's evidence in rejecting the need for a live-in carer at the time of the third revision, the care experts agree that this category of expenditure does not arise. In any event, any live-in carer would simply have occupied a bedroom within the Claimant's home, which it is reasonable to assume would have been furnished in any case, leaving food expenses as the only marginal additional item of expenditure which would have been incurred had I concluded otherwise.
Physiotherapy
(1) Musculoskeletal therapy
Ms Filson and Ms Dickinson agree on the need for physiotherapy of this form. As I have accepted Mr Ashworth's position, the agreed need is for six sessions per-flare up of back pain which is not pregnancy-related. The assumption pragmatically agreed by Mr Matthews is that there will be six such flare-ups and the claim is advanced on the basis that the figures quoted by the orthopaedic experts for hip surgery, include both pre- and post-operative land-based physiotherapy costs, so that no additional separate provision need be made.
(2) Aquatic therapy
The cost of four courses of hydrotherapy, including after each revision surgery, are agreed, in the aggregate sum of ?1,624.
Personal trainer
Ms Filson's recommendation was made on the basis that a personal trainer would assist with motivation. As I have previously noted, however, under cross-examination, she recognised that the Claimant's motivation to exercise did not appear to be an issue. Ms Dickinson's position was that exercise ought regularly to be woven into the Claimant's everyday activities and that half an hour with a personal trainer would be neither here nor there. She was also concerned as to the prospective damage which could be done by a personal trainer who was not familiar with the Claimant's condition and prognosis. Having regard to the asserted justification for a personal trainer, I am not satisfied that a reasonable need has been demonstrated. The Claimant has shown considerable determination and willingness to persist with an exercise regime. She will have the benefit of a physiotherapy regime. There is no other basis upon which a reasonable need for the services of a personal trainer arises and I am also persuaded by Ms Dickinson's concern at the prospect that such a person might inadvertently do harm. I reject this head of claim.
Gym membership/use of a private leisure facility
Ms Filson and Ms Dickinson agree on the need for physical activity and, in particular, swimming. Ms Filson recommends that provision be made for membership of a private leisure centre, at an annual cost of ?1,200. Assuming that the Court is satisfied that the cost would not have been incurred in the but for scenario, Ms Dickinson recommends making provision for swimming at the municipal facility which the Claimant has been attending to date, on a pay as you go basis, at an assumed annual cost of ?271.40 (for 46 sessions). Having regard both to general trends and the Claimant's stated interest in the gym and in swimming, I am satisfied that she is likely to have incurred the cost of at least one fitness-related activity in the but for scenario, such that it cannot be said that at least part of the cost of any reasonable need identified in these proceedings would not have been incurred in any event.
Further, I am not satisfied that the evidence demonstrates a reasonable need for membership of a private facility. The Claimant has been swimming regularly since March 2023 in a municipal pool, with no suggestion that she or her motivation have been adversely affected by its temperature or the nature of its changing facilities. As Ms Dickinson observed, any swimming pool will feel cool on entry and there is no evidence as to the difference, if any, between a) the temperature of the municipal pool and that of the pool in the proposed private leisure centre, or b) their respective changing areas. There is no physical limitation which precludes the Claimant from moving when in the water in order to stay warm. In so far as private provision is sought in order to afford flexibility, Ms Dickinson rightly observes that a pay-as-you-go membership of the municipal facility will also afford that benefit. A number of activities which would be covered by gold membership of that facility (such as racket sports and fitness classes) would not be appropriate for the Claimant, given their high-impact nature. I acknowledge, however, that Mr Ashworth recommends Pilates and yoga and that Ms Filson's understanding (albeit that there is no independent indication of its accuracy) is that classes in those activities would be covered by that level of membership, at a cost of ?708 per year, to be contrasted with the annual cost of swimming on a pay-as-you-go basis at the same facility, being c. ?271.
On balance, and taking account of the likely but for scenario, I am satisfied that it is appropriate to make provision for an annual gold membership of the Claimant's leisure facility, but to discount the sum claimed in recognition of the likelihood, as I find it to be, that, in the but for scenario, the Claimant would have paid for off-peak gym sessions and fitness classes, in each case on at least a two occasions per month. By reference to the leisure centre price list in the trial bundle, I therefore reduce the annual allowance which I make from ?708 to ?427.20.
Loss of Earnings
The parties agree that the Claimant's likely but for employment would have been as a full-time median fashion designer, in which role, having regard to the Annual Survey of Hours and Earnings ('ASHE') produced by the Office for National Statistics, it is agreed that her gross annual earnings would have been ?36,466 gross (equating with ?29,776.24 net).
The Claimant contends that it cannot be assumed that her actual likely employment will follow that path, or that of her contemporaries at university, having regard to the gulf between her employment as at the date of trial and that of her friends; the gap in her CV which is mostly filled by part-time work at Nando's; the difficult route into a major fashion business; the knock which she has taken to her confidence; and the continuing need for rehabilitation and for support, at home and at work, all of which said to indicate that she will struggle to catch up with her contemporaries and that the likelihood is that she will not do so. The median graduate earnings indicated for a first degree in creative arts and design, as indicated by ASHE, are ?17,500; ?21,500; and ?24,100, respectively at two, four, and six years post-degree, therefore, falling below those currently enjoyed and anticipated by Ms Dixon. On that basis, Mr Matthews submits that it would be reasonable to take a broad category of employment, reflective of a broad range of roles which the Claimant might be likely to be capable of pursuing on a sustained basis, consistent with the requirement for essentially sedentary work compatible with her clinical limitations and residual symptoms. The applicable realistic category is said to be sales and customer service occupations, for which the median earnings according to ASHE are ?25,479. It is submitted that they provide a reasonable estimate of the sort of role which the Claimant might achieve following completion of her recovery and re-entry into the labour market, in, say, two to three years' time, pending which she is likely to maintain her current annual earnings of around ?14,000, assuming that her jobs at Nando's and in the small fashion warehouse are maintained, but bearing in mind the hiatus which she will experience during the peri-operative period of her first revision and slightly early retirement at 66.
Mr Matthews submits that, whilst no Ogden 8 disability adjustment is sought on the basis of the level of disability currently projected, that is in part having regard to assumptions that the Claimant will work part-time from the age of 60 and retire at 65 (both of which I have rejected on the facts). Further, it is said that, were the Court to conclude that the Claimant will be capable of achieving higher earnings equivalent to those of her contemporaries, the risk of disability arising from her attempt to sustain earnings at that level, in the context of her physical and psychiatric vulnerabilities, would be far greater, justifying partial application of the Ogden 8 adjustment factors.
The Defendant contends that there is no reason to suppose that the Claimant will not be successful in establishing a career in her chosen industry. On her own case, she has a strong work ethic. She has not given up following an acknowledged delay and has obtained two roles in that industry as at the date of trial. Her friends have described her as talented. She has both a good degree and a good story to tell when explaining the delay in joining the industry, with the resilience which she has demonstrated likely to be seen as a plus. She has CBT available to her, and, with the litigation behind her, will be able to look forward. In short, there is no reason why she should abandon her career aspirations, and it is clear that she has not done so to date. The orthopaedic experts agree that there is no clinical reason why the Claimant should not be able to work in her chosen industry. There is no evidence to the effect that her career progression will be adversely affected by her physical injury, and her pleaded case is not advanced on the basis of an adverse effect of any psychiatric vulnerability. Notwithstanding the acknowledged risk of relapse of her depressive disorder, neither of the psychiatrists suggests that she will have any related ongoing difficulties in her career. The revision surgery at 47 will give rise to no loss beyond the six-month allowance for loss of earnings which the Defendant has made. In any event, the Claimant would not meet the criteria for disability which would warrant the application of the Ogden 8 multiplier.
I am satisfied that, for the reasons advanced by Ms Power, the Defendant's submissions are to be preferred, and that it is right to assume a three-year delay to the career path which the Claimant would have followed in the but for scenario. Notwithstanding my findings in relation to the Claimant's employment from the age of 60 and her date of retirement, I consider Mr Matthews' position on Ogden 8 to lack coherence. First, he points (and can point) to no evidence supportive of the enhanced risk of disability which he asserts. Secondly, the findings which I have made as to the Claimant's continuation in full-time employment from the age of 60 until retirement at 66 themselves reflect the expert evidence as to her projected high level of ability and functionality over that period. Thirdly, it is inherently unlikely that the Claimant will avoid functional impairment upon the basis of a lighter workload which would not commence before she reached the age of 60, that is in 34 years' time, the corollary of which being that, if adjustment in accordance with Ogden 8 were thought to be appropriate at all, it would have been sought in any event. That it has not been is telling in its own right.
Lost pension
Once again by reference to the ASHE tables, this time relating to pension, the Claimant submits that I should assume that, in the but for scenario, she would have been working for a large, or, at the very least, medium-sized, employer and benefiting from pension contributions in the region of seven per cent, whereas, in the event, she is now likely to be restricted to working for more modest employers and to receiving the basic statutory contribution, in the region of three per cent.
The Defendant submits that there is no evidence to the effect that the Claimant would have been employed by an organisation which would have made a contribution in excess of the statutory minimum, such that the latter contribution rate should be assumed.
I have accepted that the Claimant's but for career trajectory will have been delayed, but not thwarted, in which circumstances she will be working in roles comparable to those of her coursemates. Whilst the corollary of that finding is that she will benefit from similar employer contributions, I have been provided with no evidence as to the level of those contributions, which could have been elicited from Ms Randles and/or Ms Dixon. Whilst it is probable that it will be higher than the statutory minimum contribution, I do not consider that I have a sound basis for assuming a contribution of seven per cent. In all the circumstances, it seems to me that justice to both parties is served by assuming a five per cent employer contribution.
Past Losses
Past losses are agreed as follows:
a. gratuitous care and support: ?50,000, including interest;
b. travel expenses: ?8,000, including interest;
c. loss of earnings: ?47,761, including interest;
d. aids and equipment: ?851.02;
e. miscellaneous losses: ?450; and
f. total interest (where payable, in addition to that recorded above): ?88.24
General Damages for pain, suffering and loss of amenity
An award for pain, suffering and loss of amenity is reflective of the impact and severity of, and prognosis for, the relevant condition(s). As the seventeenth edition of the Judicial College Guidelines notes, at Chapter 7, 'the most serious of injuries to the pelvis and hip can be as devastating as a leg amputation and accordingly will attract a similar award of damages '. There follow three categories of classification, respectively: (a) Severe; (b) Moderate; and (c) Lesser Injuries. Within Severe and Moderate are the following sub-categories:
'(a) Severe
(i) Extensive fractures of the pelvis involving, for example, dislocation of a low back joint and a ruptured bladder, or a hip injury resulting in spondylolisthesis of a low back joint with intolerable pain and necessitating spinal fusion. Inevitably there will be substantial residual disabilities such as a complicated arthrodesis with resulting lack of bladder and bowel control, sexual dysfunction, or hip deformity making the use of a calliper essential; or may present difficulties for natural delivery.
?95,680 to ?159,770
(ii) Injuries only a little less severe than in (a)(i) above but with particular distinguishing features lifting them above any lower bracket. Examples are: (a) fractured dislocation of the pelvis involving both ischial and pubic rami and resulting in impotence; or (b) traumatic myositis ossificans with formation of ectopic bone around the hip.
?75,550 to ?95,680
(iii) Many injuries fall within this bracket: a fracture of the acetabulum leading to degenerative changes and leg instability requiring an osteotomy and the likelihood of hip replacement surgery in the future; the fracture of an arthritic femur or hip necessitating hip replacement; or a fracture resulting in a hip replacement which is only partially successful so that there is a clear risk of the need for revision surgery.
?47,810 to ?64,070
(b) Moderate
(i) Significant injury to the pelvis or hip but any permanent disability is not major and any future risk not great. This may include cases where a hip replacement has been required.
?32,450 to ?47,810
(ii) These cases may involve hip replacement or other surgery. Where it has been carried out wholly successfully the award will tend to the top of the bracket, but the bracket also includes cases where hip replacement may be necessary in the foreseeable future or where there are more than minimal ongoing symptoms.
?15,370 to ?32,450'
Ms Power does not demur from Mr Matthews' submission that the proper classification of the Claimant's orthopaedic injuries is Severe, category (ii). Adjusted for RPI, the associated range, as at December 2025, is ?81,697 to ?103,465. Whilst that classification is acknowledged by Mr Matthews to relate to injuries of greater severity than those sustained by the Claimant, it is said to reflect distinguishing features lifting them above any lower bracket. I accept that classification to be correct, on the basis that it takes full account of all relevant circumstances, including those following:
a. the agreed risk of earlier deterioration of the Claimant's THR, and of complications (other than a Girdlestone procedure, which is the subject of the award for provisional damages) arising from each surgery which she has yet to undergo. I treat the need for the three revision operations as established and include their ordinary burdens within the award.
b. given that each operation carries recognised, but sub-probability, risks, and that there is an unquantified possibility that one or more operations might be required at an earlier stage than is currently thought probable, I apply a modest uplift to reflect the Claimant's loss of amenity and anxiety arising from the very presence of risk and uncertainty (including as resulting from the risk of a Girdlestone procedure), which will encompass uncertainty as to timing;
c. her current and predicted levels of fatigue and discomfort.
But for those factors, I would have considered the appropriate classification to have fallen somewhere between Severe, category (iii) and Moderate, category (i) ? there is no doubt that the Claimant has undergone extensive surgical intervention and has more to come, but her level of permanent disability is not major; her prognosis good; and the level of future risk relatively low. I have borne in mind Mr Ashworth's unchallenged opinion that the Claimant would have experienced pain in her right leg in the but for scenario.
In relation to orthopaedic damage, the earlier reported cases to which I was referred by both parties are summarised below. Each needs to be treated with some caution, as it reflected an agreed settlement (albeit, in three cases, one approved by the Court), rather than an award following trial, and, where indicated, a global settlement sum had been agreed, with damages for pain, suffering and loss of amenity having been estimated by the relevant claimant's solicitors:
a. The Court-approved settlement in RH (a child) v Central Manchester Primary Care NHS Trust and Central Manchester and Manchester Children's University Hospitals NHS Trust, on which the Claimant places considerable reliance, was approved in March 2009 when RH was 12 years old. The sum approved for general damages was ?115,000 (?204,855 at present value). The defendant ought to have diagnosed RH's congenital bilateral dislocation of the hips when she was 13 months old. The parties were agreed that she would have required open reduction of both hips in any event, but that there would have been a satisfactory outcome until, in her mid-fifties, she would have required bi-lateral hip replacements. At the date of the approval hearing, RH had already undergone extensive surgery and would require further surgery in the future, in particular: a right hip replacement, when in her twenties, with revision in her mid-thirties; a Girdlestone arthroplasty on one side, by her mid-forties; and a left hip replacement at around the age of 40, with revisions thereafter. At the date of the hearing, she had limited walking distance; stiffness of her hips; and an unsteady gait; and was using a wheelchair for longer distances, requiring single-storey accommodation. From her mid-forties onwards, it was said that she would be effectively confined to a wheelchair and require assistance with transfers. Separately, RH had been born with a malformation of the brain which had resulted in severe visual impairment, significant cognitive and learning difficulties and an endocrine deficiency, none of which attributable to the relevant negligence.
b. Acknowledging that there is no indication of psychiatric or psychological ill-health resulting from the negligence in question, RH's orthopaedic damage was more severe than that sustained by the Claimant in this case ? not only did she face numerous and serious further surgical procedures, to both hips, which she would not otherwise have been obliged to undergo, they included the certainty of a Girdlestone arthroplasty and that she would be confined to a wheelchair from her mid-forties onwards. Her physical capabilities at the date of settlement were also inferior to those of the Claimant.
c. In VG v Taunton and Somerset NHS Foundation Trust (May 2011), on which both parties rely, liability was admitted. VG, then 12 years old, received a Court-approved global settlement payment in the sum of ?445,000. Whilst that sum was not apportioned between specific heads of claim, her solicitors estimated damages for pain, suffering and loss of amenity as falling between ?60,000 and ?65,000 (equating with an RPI-adjusted sum of ?103,022). VG's congenital hip displacement was not diagnosed and treated until two years after her birth. She underwent a standard open reduction procedure from which she made good progress, but, 10 months later, her hip was noted to be avascular, with marked acetabulum dysplasia. Nearly two years later, she underwent a pelvic osteotomy, subsequently requiring further investigations and being diagnosed with avascular necrosis and a short femoral neck. VG later underwent a soft tissue release and valgus osteotomy of the right hip, a procedure which was successful and increased her range of movement. However, over the following years she began to walk with a limp, and it was noted that there was a difference of approximately 1cm between the lengths of her legs. But for the defendant's negligence, on the balance of probabilities the dislocated hip would have been treated non-surgically and VG would not have had to undergo corrective operations. She would have had a functional hip. Instead, she faced hip replacement surgery at the age of 18 and two additional hip replacement operations ? the first between the ages of 35 and 40, and the second between the ages of 50 and 55. It was unlikely that a third revision procedure would be possible, such that she would require excision arthroplasty when approximately 75 years old. By the age of 65, it was likely that there would be enforced wheelchair use when outside the home, and, by the age of 70, both inside and outside the home. She would require a live-in carer from the age of 75. At the date of the approval hearing, VG's right hip was abnormal, with a marked distortion of the femoral head and acetabulum; her legs were different lengths; she walked with a moderate and persistent limp; and suffered from intermittent pain in her right knee.
d. Whilst there are obvious similarities between the Claimant's case and that of VG, VG's orthopaedic prognosis, in particular from the age of 65 onwards, was more pessimistic. She also had greater deficit at the date of the hearing. Here again, I bear in mind that there was no recorded psychological/psychiatric element to her injuries.
e. In AT v Powys Local Health Board, on which the Defendant relies, the Court approved a settlement in May 2011, including a sum for pain, suffering and loss of amenity (as estimated by AT's solicitors) of ?50,000 (?80,347, at present value). AT was 17 years old as at that date. She alleged a number of failures in the diagnosis, treatment and management of her congenital hip dysplasia. Liability was admitted in part. AT had been left with a dysplastic left hip and a 1.5cm shortening in her left lower limb, with painful restriction of rotational movement of her hip. She continued to have activity-related pain and walked with an obvious limp, experiencing aching, pain and stiffness in the lateral aspect of her hip after standing or walking for longer than 15 minutes, and, consequently, unable to participate in school sports or take public transport to school. Following dislocation of her left hip, she had been admitted for traction treatment and a percutaneous adductor tenotomy, when 14 months old. Later, she underwent three manipulation procedures, under general anaesthetic; a further examination under anaesthesia; and an arthrogram, followed by an open reduction procedure when she was 21 months old. Before or around the age of 21, she would require either an acetabular orientation or trochanteric advancement. Primary hip replacement would be required at a time when she was between 35 and 40 years old, and, on the balance of probabilities, she was likely to require two further revision procedures, the first between the ages of 55 and 60, and the second between the ages of 70 and 75. There is no indication of the deficit (if any) with which AT would be left after any such procedure, or of any psychiatric/psychological damage. There is no breakdown of the global settlement. In the instant case, the Claimant has undergone, and will undergo, more extensive surgery, but there are clear similarities in her orthopaedic damage and prognosis;
f. In TXA v Secretary of State for Health, on which the Defendant relies, the parties reached an agreed settlement in July 2021. Liability was not admitted. TXA, then aged 19, received ?77,000 for pain, suffering and loss of amenity (present value ?95,273). He had been eight months old at the time of the alleged negligence, constituted in misdiagnosis and mismanagement of congenital dislocation of the hip. It was alleged that, but for the defendant's negligence, it was likely that a closed reduction would have been performed, leaving TXA with a good outcome, but with the risk of late onset degenerative changes in his fifth decade, requiring total hip replacement. In the event, he had undergone a triple osteotomy and total hip replacement, following which he had retained reduced rotation of his left leg, and his walking distance was reduced. His condition had deteriorated so that he had a 2cm discrepancy in leg length. It was likely that his total hip arthroplasty components would fail after 15 to 20 years, necessitating a first revision arthroplasty at around the age of 35. He might then require a second revision at the age of 50 to 55, with the possibility of a third at around the age of 70 to 75. Each would require physiotherapy and rehabilitation, with the initial use of a stick or crutch. There was a further risk that, at about the age of 70 to 75, he might require an excision arthroplasty, which would leave him with a stiff hip and a straight leg which he would be unable to bend at the hip. No mention is made of psychiatric or psychological damage.
g. Once again, there are parallels with the Claimant's orthopaedic damage and prognosis, albeit that, unlike the position in this case, but for the defendant's negligence, TXA would have required some surgical intervention, with a residual risk of degenerative changes later in life, in any event.
Psychological/psychiatric damage is considered at Chapter 4, Section A of the Judicial College Guidelines, which makes clear that:
> 'The factors to be taken into account in valuing claims of this nature are as follows:
>
> (i) the injured person's ability to cope with life, education, and work;
> >
> (ii) the effect on the injured person's relationships with family, friends, and those with whom he or she comes into contact;
>
> (iii) the extent to which treatment would be successful;
>
> (iv) future vulnerability;
>
> (v) prognosis;
>
> (vi) whether medical help has been sought.'
Severe cases (category (a)) are said to be those in which the injured person will have marked problems with respect to factors (i) to (iv) above and the prognosis will be very poor. Mr Matthews submits that the damage to the Claimant ought to be assessed as Moderately Severe, defined to mean those cases in which:
> '? there will be significant problems associated with factors (i) to (iv) above, but the prognosis will be much more optimistic than in (a) above. While there are awards which support both extremes of this bracket, the majority are somewhere near the middle of the bracket. Cases involving psychiatric injury following a negligent stillbirth or the traumatic birth of a child will often fall within this bracket. Cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment would appear to come within this category.
> ?23,270 to ?66,920'
I have rejected Dr Gibbons' diagnosis of PTSD, complex or otherwise, for reasons which I have explained, but, even taking the Claimant's case at its highest, the definition of Moderately Severe does not reflect her circumstances. I am satisfied that such psychological/psychiatric damage as has been caused is properly assessed as Moderate, defined to mean that, whilst there may have been the sorts of problem associated with factors (i) to (iv), there will have been marked improvement by trial, and the prognosis will be good. The unadjusted bracket for damage of that classification is ?7,150 to ?23,270. Adjusted for RPI, the range, as at December 2025, is ?7,732 to ?25,163. The need for consideration of the classification of PTSD in Chapter 4, Section B does not arise.
Ms Power urges me to treat the Claimant's orthopaedic and psychological/psychiatric damage holistically for the purposes of an award of general damages. Mr Matthews submits that each should be analysed separately, there being no overlap. In my judgement, the appropriate approach is to have regard to the bracket for Moderate psychiatric damage when determining the appropriate uplift to the award for orthopaedic damage, but not to assess each in a vacuum. That approach recognises the fact, apparent from the expert medical evidence, that: a) contributing to the factors to be taken into account when assessing damages for psychiatric injury was the Claimant's orthopaedic injury and its sequelae; and b) contributing to the Claimant's perception of her orthopaedic injury was her state of mind. Adopting that approach, I consider the appropriate award for pain, suffering and loss of amenity, reflective of all orthopaedic and psychiatric damage in this case, to be ?110,000, on which, as the parties agree, interest will be payable at the rate of 2% from the date of service of the claim form.
Summary and conclusions
There is no issue between the parties as to the appropriate approach to calculating the quantum of the losses claimed, once my findings on the disputed matters are known. Thus, it is unnecessary to burden an already lengthy judgment with that methodology, which is orthodox and has been agreed and applied by practitioners of considerable experience in this field. The applicable Personal Injury Discount Rate is +0.5 per cent.
I assess the total damages payable to the Claimant in the sum of ?811,247.11, comprised as set out in the schedule at Annex A to this judgment, which includes those heads of loss which the parties had agreed and which I did not need to address.
Further, I make an award of provisional damages, solely in relation to the risk of a Girdlestone procedure, should that procedure be necessary at any time during the Claimant's lifetime. The order which I make is set out at Annex B to this judgment.
ANNEX A: SCHEDULE OF DAMAGES
**** **** **** **** **** **** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** **** ******** ******** ******** ******** ******** ******** ******** | PSLA | 110,000.00 | | | | | | Interest | 9,649.86 | | | | | | | | | | | 119,649.86 | | | | | | | | | Past Losses (as at 16.12.24) | | | | | | | Gratuitous Care and Support | 50,000.00 | inc interest of ?8,333 | | | | | Travel Expenses | 8,000.00 | inc interest of ?1,333 | | | | | Aids/Equipment | 911.80 | inc interest of ? 60.78 | | | | | Loss of Earnings | 47,800.00 | inc interest of ?2,800 | | | | | Miscellaneous | 477.46 | inc interest of ?27.46 | | | | | Total exc interest | 94,635.02 | | | | | | Total, inc interest to 16.12.24 | 107,189.26 | | | | | | | | | | | | | Interest at full special account rate from 16.12.24 to 16.3.26 at 5.28% | 5,659.59 | | | | | | Less interest on interim payment of ?20,000, paid on 07.09.23 | -2,497.01 | | | | | | Net further interest from date of trial | | 3,162.58 | | | | | Overall net interest | 15,716.82 | | | | | | | | | | | | | Total special damages and interest | | | | | 110,351.84 | | | | | | | | | Future Losses (as at 16.03.26) | | | | | | | Care and Support (including case management) | 125,181.77 | | | | | | Medical Costs | 89,000.00 | | | | | | Therapeutic Input | 41,114.40 | | | | | | Accommodation | 116,097.12 | | | | | | Aids and Equipment | 15,482.65 | | | | | | Additional Services | 51,867.69 | | | | | | Travel/Transport | 12,942.50 | | | | | | Additional Holiday costs | 14,878.56 | | | | | | Loss of Earnings/Handicap on Labour Market | 105,436.59 | | | | | | Loss of Pension | 9,244.13 | | | | | | | | | | | | | Total future losses | | | | | 581,245.41 | | | | | | | | | GRAND TOTAL | | | | | 811,247.11 |
> ANNEX B
IN THE HIGH COURT OF JUSTICE CASE NO: QB-2021-002538
KING'S BENCH DIVISION
CLINICAL NEGLIGENCE
BEFORE THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE
B E T W E E N:-
DAISY LYNCH
Claimant
- and -
THE PRINCESS ALEXANDRA HOSPITAL NHS TRUST
Defendant
ORDER
UPON the assessment of damages in this claim before The Honourable Mrs Justice Ellenbogen DBE, sitting without a jury, at the Royal Courts of Justice, Strand, London on 3, 4, 5, 6, 9, 10, 11 and 16 December 2024
AND UPON judgment ('the Judgment') being handed down remotely at 10:00am on 20 March 2026, by circulation to the parties' representatives, by e-mail, and by release to the National Archives
AND UPON the judge ordering that judgment be entered for the Claimant in the total sum set out at paragraph 1 below
AND UPON the Defendant having made an interim payment on account of damages in the sum of ?20,000, on 7 September 2023
AND UPON there being a nil CRU certificate
AND UPON the Claimant having failed to obtain a judgment more advantageous than the Defendant's Part 36 offer, made on 8 November 2024
AND UPON the parties having reached agreement in relation to the orders set out at paragraphs 1 to 7, below
IT IS ORDERED AND DIRECTED THAT:
Pursuant to s.32A of the Senior Courts Act 1981 and CPR 41.2, and subject to paragraph 7 below, the Defendant shall pay to the Claimant immediate damages in the total sum of ?811,247.11, that sum incorporating: (i) ?110,351.84 for special damages and interest; (ii) ?119,649.86 for general damages and interest, (iii) ?125,181.77 for future care, and (iv) ?105,436.59 for loss of future earnings and/or earning capacity, as set out in the judgment of Mrs Justice Ellenbogen dated 20 March 2026, on the assumption that the Claimant will not undergo a Girdlestone (excision arthroplasty) procedure in her left hip at any time during her life-time, as a result of the matters the subject of this claim.
In the event that the Claimant does undergo a Girdlestone (excision arthroplasty) procedure in her left hip at any time during her life-time, as a result of the matters the subject of this claim, the Claimant may apply to the Court for an award of further damages, provided that the application is made on, or before three years from, the date upon which the Claimant undergoes any such Girdlestone procedure.
The documents set out in the Schedule to this order be filed on the Court file and preserved as the case file for the duration of the Claimant's life. For that purpose, the Claimant's representatives are to file all such documents with the Court within seven days of the date of this order, stating that they do so pursuant to this paragraph.
The Defendant shall pay the sum of ?791,247.11 (being the judgment sum referred to in paragraph 1 above less ?20,000 already received by way of interim payment) to the Claimant's solicitors by 4:00pm on 13 April 2026.
The Defendant shall pay the Claimant's costs of the action up to 29 November 2024, to be assessed on the standard basis if not agreed.
The Claimant shall pay the Defendant's costs of the action from 30 November 2024, to be assessed on the standard basis if not agreed.
The sums payable by the Claimant under paragraph 6, above are to be set off against the sums payable by the Defendant under paragraph 5, above, pursuant to CPR 44.12.
The date and time of hand down of the Judgment will be treated as the start of a hearing which will be immediately adjourned for the purposes of giving effect to the directions which follow.
By 10:00am on 23 March 2026, the Claimant is either to lodge and serve concise written submissions in support of any application for permission to appeal, at the same time sending a copy of those submissions, by e-mail, to the judge's clerk, or to confirm that no such application is to be made (as the case may be).
In the event that an application for permission to appeal is made by the Claimant, ? by 10:00am on 30 March 2026?the Defendant is to lodge and serve concise written submissions in reply to those served by the Claimant, at the same time sending a copy of those submissions, by e-mail, to the judge's clerk.
By consent, and subject to any need for a hearing which may be identified by Mrs Justice Ellenbogen having considered the above written submissions, any application for permission to appeal will be considered on the papers.
Time for the filing of an appellant's notice is extended to 21 days after the date of the Court's decision on the application for permission to appeal.
The Schedule
A. the judgment of Mrs Justice Ellenbogen, dated 20 March 2026;
B. the case summary; Amended Particulars of Claim; Amended Defence; Schedule of Loss calculated as at 16 December 2024, based on a 0.5% discount rate, with amended loss of earnings calculation; and updated Counter-Schedule calculated to 3 December 2024;
C. all medical reports relied upon as expert evidence at the assessment of damages hearing, including all joint statements in each discipline of expertise; and
D. the official transcripts of all oral evidence given by all witnesses of fact and expert witnesses at the assessment of damages hearing.
Dated this 20 th day of March 2026
By the Court

Note 1   the International Classification of Diseases, 11th Revision, being the Word Health Organisation?s latest global standard for diagnostic health information [Back]

Note 2   being the total period as corrected in the course of Dr Gibbons? oral evidence [Back]

Note 3   see page 8, paragraphs (v) and (vi) of the Claimant?s Opening Skeleton Argument [Back]

Note 4   the appeal from which did not extend to this point [Back]

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Lynch v Princess Alexandra Hospital NHS Trust - Medical Malpractice

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