Celine Martin (formerly known as Vicky Kathleen Higgins) v Salford Royal NHS Foundation Trust [2022] EWHC 532
This is a clinical negligence case arising out of the treatment of the Claimant at Salford Royal Hospital (known as Hope Hospital) in the summer of 2010. The litigation has resulted in three separate contested hearings in the High Court. The liability trial was heard by Mrs Justice Andrews (as she then was) in 2018 (see [2018] EWHC 1824) and two quantum hearings were heard by HH Judge Bird sitting as a High Court Judge in 2021 (see [2021] EWHC 3058) and 2022.
The decision in 2022 addressed two points of general interest:
(a) The use of variable periodical payments for care and case management where there may be a change in the Claimant’s care regime, if her health deteriorates, from a private home care package to a residential home package.
(b) The recovery of Trust Costs for a Claimant who is vulnerable but assessed by the Judge to have capacity within the meaning of the Mental Capacity Act 2005.
In considering the Judge’s decision on these two points it is however relevant to consider the complex background to the case and the determinations made by the two judges in the earlier trials.
Background
In May 2010 the Claimant, then aged 36, was a psychiatric inpatient at Prestwich Hospital, where she was undergoing treatment for long-term mental health issues. Whilst taking a shower, her right leg suddenly gave way, and she fell over. She immediately felt significant pain in her right hip, thigh and knee. She was unable to bear any weight on that leg. It subsequently transpired that she had suffered a sub-trochanteric stress fracture of her right proximal femur. Fractures of this type, which are also known as Atypical Femoral Fractures (”AFF”) or insufficiency fractures, are spontaneous – they do not arise from an accident or trauma. However they do need to be operated on or otherwise they will be displaced. There is no prospect they will heal spontaneously. The claim related to the failure to operate on the Claimant’s fracture and the severe consequences that followed.
By the time of her admission to hospital after the fracture, the Claimant had a Body Mass Index (BMI) of 58.3. A BMI of over 40 places a patient in the category of morbidly obese and the Claimant’s weight was estimated at over 29 stone.
After the fracture in May 2010 the Claimant was x-rayed a number of times and the x-rays showed increasingly significant displacement of the fracture. It was only in September that the Claimant was listed for surgery and Mrs Justice Andrews stated: “It beggars belief that even after the displacement had become acute, so that on any view surgery was required, a group of clinicians were still debating whether to continue conservative treatment, and that still no consultant appeared to be in overall charge of the Claimant’s care.” By the time surgery was undertaken on 7 September 2010 it was bound to be complex. After the surgery the fracture was still widely displaced, with the shaft to the femur lying posterior to the head/neck fragment. The intra-medullary nail was well back in the shaft of the femur and the proximal screw was lying behind the head/neck fracture and not in the bone, as it should have been. If there was any hold, which is doubtful, it would have been tenuous. The following day it was accepted the surgery had failed and she was told that she required a total hip arthroplasty. As a result of this surgery the Claimant suffered septic shock on the operating table, brain injury and significant neurological impairment. The Claimant still has disability from the fractured side but also very limited movement on the other side and is wheelchair dependent.
Mrs Justice Andrews found that
“… any reasonable orthopaedic surgeon with the requisite expertise in trauma surgery would not have attempted conservative treatment of this stress fracture once it was complete, irrespective of the specific factors which increased the risks of surgery in Ms Martin’s case. Such a surgeon would have appreciated that surgery was overwhelmingly likely to be necessary and would increase in difficulty the longer the fracture was left. Attempting conservative treatment on a complete AFF was contrary to the received body of medical opinion then and now. Once it had completed, this fracture was not going to heal by itself, and any sufficiently experienced and competent surgeon in this field who was aware of the proper diagnosis would have appreciated that. Such a surgeon would have operated on Ms Martin in June or, at latest, in July 2010.”
And on causation she found:
“The expert evidence that the risk of infection would have been lower in June or July 2010 before the fracture displaced is unequivocal, and it fits with the other evidence as to what the earlier surgery (whether open or minimally invasive) would have involved. In June or July 2010, no reduction would have been required, and the surgeon who was seeking to stabilise the fracture would not have been dissecting tissue to the same extent, as the anatomical alignment would not have required adjustment…..
I am satisfied on the balance of probabilities that the surgery in September 2010 was considerably more prolonged than it would have been in June or July even if the operating surgeon had used an open procedure to insert a gamma nail. On any view Mr Batra was faced with a much more complex operation in which he struggled to reduce the fracture sufficiently to be able to insert the nail……
For all these reasons, the delay did elevate the underlying risk of deep infection above and beyond any risks that would have existed whenever Ms Martin underwent any form of open surgery. If Ms Martin had had the operation in June or July she would not have faced the complications that she did in September which carried with it heightened risk factors. Put another way, although the risk of developing a deep infection was always there, and there were particular factors in Ms Martin’s case which elevated that risk in comparison with other patients, the evidence fails to establish that the risk would probably have materialised in an earlier operation. Thus, the Claimant has proved that the delay was both factually and legally causative of her injuries and liability is established.”
Assessment of Quantum – 2021 Trial
In assessing quantum for the contested heads of loss that included Care and accommodation and Court of Protection or Trust costs the Judge set out the Claimant’s condition before and after the injury caused by the Defendant’s negligence as follows:
“Before the defendant’s negligence
The Claimant is 47 years old. She was born and grew up in Cork in Ireland. She has a large family. The evidence suggests that she attended university in Dublin and played Gaelic Football for the national team. She travelled extensively in America and South Africa. After graduating she ran a hostel for a number of years and moved to Manchester in 2001. In 2004 she worked for a short period as a hotel receptionist.
She has an extensive psychiatric history which began before the defendant’s negligence. She lives with Emotionally Unstable Personality Disorder (“EUPD”) and paranoid schizophrenia and has a history of substance abuse. She has in the past attempted suicide and has been detained at mental health facilities for long periods. The schizophrenia remains under control for as long as the Claimant takes appropriate medication. EUPD leads to a propensity to become involved in intense and unstable relationships with emotional crises, excessive efforts to avoid abandonment and suicidal threats.
From 2002 the Claimant was regularly admitted to hospital for mental health assessments under section 2 of the Mental Health Act 1983 (“the Act”). Treatment orders were made under section 3 of the Act in 2003, 2004, 2005 and 2006. There were further section 2 assessments in 2007 and 2008 and a further treatment order in 2009.
In June 2009 an order was made under section 38 of the Act detaining The Claimant following conviction for arson pending sentence. In February 2010 a section 37 hospital order was made with section 41 conditions attached. That order has now been discharged. The Claimant suffered the injuries described below (as a result of the defendant’s negligence) whilst detained under section 37.
Since the defendant’s negligence (a summary)
As a result of the Defendant’s negligence in 2010 the Claimant is dependent on others for all aspects of her daily life. She uses an electric wheelchair to get around and relies on carers. She requires hoisting to move from her chair. Her left leg is shortened, and she has footdrop. She has restricted movement in all limbs and has very poor sitting balance. The Claimant also suffered a brain injury which has resulted in severe neurological impairment. I deal with the brain injury below under the separate heading of capacity.”
In terms of the Claimant’s care needs the Judge set out the position as follows:
“Dr Basu is the jointly instructed expert in rehabilitation, he expresses the view that it is likely that the Claimant’s endurance and independence will reduce from around 60 years of age and onwards. It might be necessary to transfer her care from home-based care to nursing home/care home-based care at around the age of early 60s.
The Claimant’s wish to live as independent a life as possible was clear. She showed clear insight into her EUPD and accepted that over-dependence on others was detrimental to her mental health. Both psychiatric experts (Dr Ramzan and Dr Adshead) emphasised the importance of autonomy and independent living for the Claimant’s mental health. The care experts (Mr Ford and Miss O’Farrell) agreed that the Claimant needs to be able to do more for herself. Mr Ford was clear that having 2 carers (at least during the day) would increase her autonomy rather than make her reliant. Miss O’Farrell felt that once in suitable accommodation the Claimant’s present level of care would be appropriate.
It was suggested to the Claimant that when, in February 2021 (see paragraph 18 above), she told the care co-ordinator that she was content to accept assistive technology instead of night care, the reason was concern over becoming over-dependent. The Claimant was adamant that that was not the case and said she was prepared to accept assistive technology in place of night care because funding for it had been refused and she had little choice in the matter.
The principal reason put forward for night care is to support the Claimant’s night time toileting. At present she wears pads in bed, but she told me she would prefer not to and that the pads made her sore. The problem of toileting is exacerbated because the present care regime (although better than the 2017 care regime which required her to go to bed at 8pm) means she needs to go to bed earlier than she would like (she told me she was “put to bed” early). She told me that she wakes at about 4 am needing a bedpan and might wake once or twice during the night.
Mr Ford’s view was that it was “wholly unacceptable” to leave the Claimant in soiled incontinence pads through the night. When that happens, he told me that “the care regime forces her to be electively incontinent through a lack of provision”. Miss O’Farrell agreed that the Claimant should be able to toilet at will, but felt that having 2 carers 24 hours per day was not a reasonable way of bringing that about.
The Claimant talked of a desire to visit museums and go to the Trafford Centre and to be able to do so at times of her choosing just as she had before her injuries. She told me that it was sometimes difficult (her chair is too wide for some cabs) and embarrassing (a taxi driver had told her she would be too heavy for his ramp) to use taxis but accepted that she could use the local tram network without too much difficulty. She told me that she had had a Motability vehicle, but that Creative Support were unable to provide a driver as often as she would like. She returned the car because it was taking up her Motability allowance. She told me that she would have no issue using Motability in the future.”
The Judge’s conclusion in respect of care was that:
“I am satisfied that, in principle, an award for future care should be made. I am not satisfied that the Claimant will accept the section 117 physical care provision as sufficient to meet her care needs. It is plain from her evidence that she wants more support than the package provides her with.
I am satisfied that any possibility that the Claimant might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.
What care provision should be made?
In my view the Claimant should be compensated to the extent needed for her to have 2 day-time carers/support workers, a personal assistant and one night-time sleeping carer. I reach that conclusion for these reasons. Two daytime carers/support workers are needed to give The Claimant flexibility to leave her home when she wishes and to toilet, shower and be supported as and when needed.
I accept Mr Ford’s opinion that the day support provision should be for 14 hours each day and for 7 days each week….. I find that the Claimant’s night time needs will be met by a sleep-in carer because at present she requires assistance (as she told me) once or twice in the night.
The Claimant’s future care needs above. In short, her physical health is likely to decline over time and there is a prospect that she will require nursing home care in later life. The likelihood of such care falls short of a probability and if the risk is realised it is likely (given the agreed lifetime multiplier of less than 20) to be relatively short-lived. A good care package will help to protect The Claimant from stress and in turn that will help to keep her mental health issues in check.
There is a risk that an award of damages on a lifetime multiplier basis in the amounts I have set out might over-compensate the Claimant if she is hospitalised for long periods, or her night time care needs increase, or because (contrary to the view I have already expressed, and although the possibility is in my view small) at some point in the future she seeks section 117 assistance. Equally there is a prospect that an award might under-compensate if her physical needs increase over time, but she can be cared for at home. Such an award in my judgment takes account of the small potential that she will be required to pay residential care in later life.
I have come to the conclusion that an award of damages for care and support as I have set out over the entirety of the claimant’s expected lifetime is appropriate. Such an award is in my judgment the best way to address the risk of under-compensation or over-compensation.”
In respect of Court of Protection costs the Judge head evidence as to whether the Claimant was a protected party and found that she was not. He then gave permission to the Claimant to amend the schedule of loss to claim the costs of a PI trust instead.
The 2022 Judgment – (a) Variable Periodical Payments
It was against the background above that the Judge found that it would be appropriate to award variable periodical payments for care which allowed the Defendant to seek a reduction in the periodical payments should the Claimant move into residential care. The Judge found:
“I am satisfied that the defendant has established on the evidence that there is a more than fanciful prospect (a chance) that at some time in the future, the claimant will, as a result of the act or omission which gave rise to the cause of action, suffer a serious deterioration in her condition.
I am therefore satisfied that the power to make a variable periodical payments order arises. I have a discretion. In exercising the discretion, I bear in mind the following points:
a. The claimant has expressed a desire for certainty going forward. She does not want to worry about further applications to court or about the risk of losing some of her award. The claimant does not trust the defendant.
b. The making of a variable order should not be a run-of-the-mill occurrence. The general principle remains that damages should be assessed once and for all at the date of the relevant court hearing.
c. The need for caution in approaching the issue of variation is underlined by the fact that the order allows for only one application to vary.
d. If the order is made and the variation activated there would be a benefit to the public purse because the defendant would pay a reduced annual bill. At the same time, because for the variation to be made it would need to be established that the claimant’s care needs could not be met at home, there would be no consequential detriment to her.
I have come to the conclusion that I ought to exercise the discretion in the defendant’s favour and make a variable order. I accept that such orders are not everyday orders but note that the Order allows me a wide discretion. The claimant will be disappointed by this conclusion. I am satisfied however that it is the appropriate order to make. In making it I am simply permitting an application for a variation to be made in due course in accordance with the terms of the Order. Whether one is permitted will be a matter for the court in due course.
It was suggested that any order should prevent an application to vary being made before the claimant’s 60th birthday. Although the evidence refers to the likelihood or probability of the deterioration occurring once the claimant is in her 60’s, it does not exclude the chance that it will occur earlier. For that reason, the order should permit the application to vary at any time during the claimant’s lifetime.”
Orders for variable periodical payments are relatively unusual and applications for variable periodical payments at the Defendant’s request even more unusual. The need and appropriateness of an order in this case has to be seen against the complex background of the case but it achieves a greater fairness between the parties and the judgment is a helpful analysis of when such orders sought either by the Claimant or the Defendant will be appropriate.
(b) Costs of a PI Trust
In respect of the costs of the personal injury trust the judge considered these costs against the background of having himself determined that the Claimant had capacity to manage her finances.
The Judge started the discussion in respect of recovery of costs for a personal injury trust by stating:
“I regard the absence of any reported decision where the court has decided to award the costs of managing an award to a claimant of full capacity as instructive. As Lloyd-Jones J (as he then was) noted in A , the absence of authority is not in itself a bar to recovery as long as the claim is in accordance with legal principle and other authority.
The claimant seeks to invoke the protective jurisdiction of the court. The presence (or absence) of a relevant protective jurisdiction is in my judgment of central importance to the outcome of the claim.
Does the court have a protective function here?
The Court’s protective (or supervisory) jurisdiction arises most obviously where a party lacks capacity. In such circumstances the party is a “protected party”, or a “protected beneficiary” and the protector is the Court. The costs of managing a compensation fund (deputyship costs and court of protection costs but not the cost of taking investment advice) are awarded in such cases as a matter of course.
The High Court has an inherent general jurisdiction in relation to children (and others who are unable to protect themselves) which is protective in nature (see the decision of Macdonald J in Tameside v AM [2021] EWHC 2472 (Fam) ). In some circumstances a positive duty (an “operational duty”) arises to protect the fundamental rights of a vulnerable individual. The cases of JD and Re T are cases where this protective jurisdiction is invoked to protect children.
Save where children and protected parties or protected beneficiaries are involved, the Court does not generally adopt a protective role. This is illustrated by the established principle that the Court is not concerned with how a claimant deals with damages after they are awarded. A person who is of full capacity is entitled to take his or her own view of things. There will be no separate award in respect of the cost of investment advice and a successful claimant will be free to invest.”
The Judge then concluded:
“In the absence of a protective jurisdiction over her affairs in my view it is not open to me to award damages in respect of a PIT. This is consistent with the absence of any reported case where damages to fund a PIT have been awarded to a claimant with capacity. The overriding principle is that the court is not concerned with the future management of the compensatory fund. Save for the points I have dealt with and dismissed, there is no principled basis on which I can conclude that an award should be made.”
The case therefore reviews in some detail the cases relating to recovery of Trust Costs and assesses that the position has not changed since the introduction of the Mental Capacity Act 2005. In personal injury claims only those Claimants satisfying the test for lack of capacity can recover the cost of administrating their financial settlements.
