Tait v Gloucestershire Hospitals NHS Foundation Trust

In a damages assessment following admitted clinical negligence, losses must be confined to injury caused by the breach and separated from pre-existing or inevitable conditions. Where symptoms are partly neuropathic and partly mechanical, the court must identify the attributable component on the balance of probabilities. Future earning loss may be assessed using a broad-brush figure where precise evidence is unavailable, including a separate assessment of a chance of higher earnings. Care, equipment and accommodation are recoverable only to the extent reasonably required by the attributable disabilities. Awards for overlapping injuries must avoid double recovery.

Liability had been established, and judgment for damages to be assessed was entered on 27 November 2012. The claimant sought compensation for injuries caused by the defendant’s admitted delay in diagnosing and treating a prolapsed disc and cauda equina syndrome.

The assessment concerned whether the claimant’s continuing pain was neuropathic and attributable to the delayed surgery, or mechanical and attributable to constitutional degenerative disc disease; the effect of the latter condition on her domestic and working capacity; her counterfactual career and earnings; and the resulting claims for care, equipment, accommodation and general damages.

1. The court found on the balance of probabilities that the claimant suffered continuing neuropathic pain in the form described in her evidence, and that it was attributable to the negligently delayed surgery. The contemporaneous records and the change in the claimant’s descriptions were relevant, but the court accepted the experts’ evidence that the later symptoms were classic neuropathic symptoms and rejected deliberate exaggeration.

2. The claimant would nevertheless have suffered mechanical back pain and some leg weakness even with timely surgery. Those conditions would have prevented heavy lifting and heavy manual work, but would have allowed her to undertake the vast majority of her domestic and work activities.

3. On the evidence, the claimant would have made a success of her photography business. Because the evidence on future photographic earnings was uncertain, the court adopted a broad-brush net annual figure of £45,000, inclusive of salary and dividends from the existing business and net of childcare. It also awarded damages for a 50 per cent chance of achieving higher photographic earnings, using the methodology in Langford v Hebran [2001] EWCA Civ 361, but excluding salary and dividends from that calculation.

4. Past and future care, equipment and related expenses were recoverable where they resulted from neuropathic pain or incontinence. Items attributable to mechanical back pain, pre-existing needs or unsupported medical requirements were excluded or reduced.

5. Single-level accommodation was reasonably required because stairs created both physical difficulty and a risk of incontinence. The court adopted a proportionate valuation of the property, adaptations and studio, applying a 50 per cent allowance for the studio and corresponding betterment adjustment by reference to the Roberts v Johnson calculation.

6. General damages were assessed at £140,000. The court considered the serious bowel and bladder dysfunction, pain, leg weakness, psychiatric injury, sexual dysfunction and loss of amenity, while allowing for overlap between bowel and bladder awards and taking account of Routledge v McKenzie.

7. The parties were directed to agree an order reflecting the judgment, subject to correction of any inadvertently unresolved matter.

First-instance damages assessment following an earlier judgment dated 27 November 2012 establishing liability and directing that damages be assessed. The citation of that earlier judgment is not stated in the judgment.