Neutral Citation Number: [2012] EWHC 1150 (QB)
Case No: HQ08X04508
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3 May 2012

Before :

THE HONOURABLE MR JUSTICE LLOYD JONES
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Between :

	Denzil Shawe-Lincoln	Claimant	
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	Dr. Arul Chezhayan Neelakandan	Defendant	

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Mr. Frank Burton QC and Mr. Christopher Kemp (instructed by Stewarts Law) for the Claimant
Mr. David Pittaway QC (instructed by Beachcroft LLP) for the Defendant

Hearing dates: 12th to 16th March 2012
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Judgment

The Hon. Mr. Justice Lloyd Jones : 

1.	This is the trial of certain preliminary issues in proceedings by Mr Shawe-Lincoln against Dr. Neelakandan.
2.	The claimant who was 75 years of age in November 2005 has a medical history including ankylosing spondylitis.  In 2002 he underwent spinal surgery at Frenchay Hospital, Bristol (“Frenchay”) from which he made a good but incomplete recovery.  By November 2005 he had recovered sufficiently to be able to walk 50 to 60 yards with a stick and was independently able to get up and down one or two steps.  It was common ground before me that this was an average to good Frankel D paraparesis.   
3.	In the late evening of 17th November 2005 the claimant was pushed by his lodger causing him to strike his back on a kitchen door handle before collapsing to the ground.  In the days that followed he was seen by his general practitioners and remained at home in bed in considerable pain. At that stage it was thought that the only injury was to soft tissue. However, on Saturday 26th November, the concern of his wife and other members of his family at his condition caused Mrs. Lincoln to call the out of hours service at 23:58 that night.  The call was taken by the defendant, Dr. Neelakandan, a general practitioner engaged by Wiltshire Medical Service Out of Hours Service. He made a record that the claimant was in a lot of pain and that his legs had gone numb. It was also noted that the pain had got worse that evening when he had tried to go to the toilet. The defendant did not attend on the claimant. He decided to wait and see how the condition developed. 
4.	The central complaint by the claimant in these proceedings is that the information given to the defendant included the first indications of neurological impairment and mandated that the defendant should have visited the claimant at his home and made an urgent referral to hospital. Negligent breach of duty has been conceded by the defendant on the basis that he failed to take an accurate and detailed history from the claimant or his wife on the night of 26 November and that had he taken a more detailed history he would have visited the claimant and arranged for his admission to hospital. 
5.	The parties are agreed that but for the negligent breach of duty by Dr. Neelakandan, Mr. Lincoln would have been admitted to the Royal United Hospital, Bath (“the RUH”) by, at the latest, 05:30 on Sunday 27th November.  In fact he was not admitted to the RUH until 18.24 on Monday 28th November 2005. It is also agreed by the parties that at 00.30 on Tuesday 29th November the claimant suffered a severe neurological deterioration.
6.	The preliminary issues for decision relate to what treatment Mr. Lincoln would have received had he been admitted at 05:30 on Sunday 27th November and what effect the failure to provide such treatment at that time has had on his recovery.  
7.	On behalf of the claimant it is submitted that had he been admitted at approximately 05.30 on Sunday 27 November he would, on the balance of probability, have avoided measureable damage in that the paralysis from which he now suffers would have been less serious than it is. In particular, it is said that had he been operated on before the deterioration in his neurological status from Frankel D to Frankel C which, it is said, occurred after he was examined by the orthopaedic doctors at the RUH after 22.00 hours on 28th November and before 00.30 on 29th November, it is likely that he would have been left with an average Frankel D paraparesis.  This level of paralysis would have enabled him to walk approximately 10 to 20 yards outdoors with one or two sticks and to cruise using furniture to support himself in his own home.   It is said that he would, additionally, have remained continent of bladder and bowel and would have been able to transfer and to attend to most of his personal needs.  
The preliminary issues.
8.	The issues for decision may be summarised as follows:
(1)	If the claimant had been admitted to the RUH by 05.30 on Sunday 27 November 2005 would a significant deterioration in his neurological condition have occurred before the step change in his condition which occurred between 22.05 on 28th November and 00.30 on 29th November?
(2)	If so, and if Mr. Lincoln had been admitted at 05.30 on 27th November, what treatment would he have received?
(3)	What recovery would the claimant have made following such treatment?
The approach in law.
9.	The approach to be followed by the court is that set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 at p. 239F:
“Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Limited v Wardlaw [1956] AC 613; Wilsher v Essex Area Health Authority [1988] AC 1074.  In all cases the primary question is one of fact: did the act cause the injury?  But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis.  The question is what would have happened if an event which by definition did not occur had occurred.  …”
There can therefore be no dispute that the claimant has the burden of proving that the breach of duty of care in tort caused the injury or conditions suffered.  
10.	Unlike Bolitho this is not a case where it is said that the treatment which would have been accorded would itself have been a breach of duty.  Accordingly, the question of causation is purely one of fact.
11.	Guidance as to how the court should proceed where the claimant seeks to establish what would have happened but for the negligent breach of duty was provided by Otten L.J. in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104:
“Here the plaintiff does not seek to prove the loss of a chance; his case is that because of the delay he is worse off, or, had it not been for the delay, he would have been better off.  It is not sufficient to show the delay materially increases the risk or that delay can cause injury.  The plaintiff had to go further and prove that damage was actually caused, that is, that the delay caused injury.  In my judgment, it is not sufficient to show a general increment from the delay.  He must go further and prove some measurable damage.”
12.	On behalf of the claimant, Mr. Burton QC, who appears with Mr. Christopher Kemp, submits further that, while the burden clearly lies and remains on the claimant to prove on the balance of probabilities that the breach caused the injury suffered, the defendant, by his breach of duty in failing to cause him to be admitted to hospital at the appropriate time, has, in effect, deprived the claimant of the medical records of the progress of his condition and that this fact has hindered the presentation of the present claim.  Here he relies on Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683.  That was a deafness claim by Mr. Keefe’s widow against his former employers. The Department of Employment Code of Practice required employers to measure noise in their premises and if it was over a certain level, to take steps to reduce the noise or to provide ear protectors. At trial in the County Court there was no engineering evidence of noise levels in the ships in which Mr. Keefe had served. The judge found that the employers had failed to make noise assessments in breach of duty. The judge also found that Mr. Keefe was exposed to excessive levels of noise, sometimes in excess of the limit prescribed in the Code of Conduct.  However the claim was dismissed because Mrs. Keefe had failed to prove that her husband was exposed to excessive levels for periods in excess of 8 hours with any regularity. The Court of Appeal reversed the decision. Longmore L.J. referred to the judge’s failure to give any weight to “the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant’s breach of duty in failing to take any measurements”.   He continued:
“19. If it is a defendant's duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant's evidence benevolently and the defendant's evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings see British Railways Board v Herrington [1972] A.C. 877, 930G. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case. 
20. This has been accepted law since Armory v Delamirie (1721) 1 Strange 505 the famous case in which a chimney sweep found a jewel in a chimney and left it with a pawnbroker for valuation. The pawnbroker, in breach of duty, failed to return it and could not be heard, when sued, to assert that the chimney sweep could not prove its value. The court awarded the highest sum realistically possible. A bailee's duty towards his bailor is, of course, different from an employer's duty to his employee but breach of the latter duty is not necessarily less serious than breach of the former. 
21. The fact that the judge gave no (or virtually no) weight to this breach of duty coupled with my serious reservations about the reasons why he rejected the claimant's evidence persuades me that his judgment cannot stand and that, in the absence of a plausible competing cause of the claimant's hearing loss, this court should substitute the conclusion (to which he ought to have come) namely that the probability was that the claimant's loss of hearing was caused by excessive noise while employed on the defendant's vessels.”
13.	Mr. Burton’s submissions as to the relevance of this decision to the present case are considered below.
The evidence.
14.	On behalf of the claimant, there were lodged witness statements by the claimant, his wife and two of his daughters, Mary Lincoln and Margaret Thorpe. Mr. Pittaway QC, on behalf of the defendant, did not seek to cross examine these witnesses on their statements but he made clear that the defence did not agree this evidence. On the first day of the hearing I gave leave to the claimant to rely on his second witness statement on the issue of consent. He and Margaret Thorpe both gave oral evidence on this point and were cross examined by Mr. Pittaway.
15.	Four experts gave evidence in this case. Mr. N.V. Todd, a consultant neurosurgeon and spinal surgeon, and Mr. James Wilson-MacDonald, a consultant orthopaedic surgeon were called by the claimant. Mr Robert Macfarlane, a consultant neurosurgeon, and Mr. John K. O’Dowd, a consultant spinal surgeon, were called by the defence. In addition, both sides referred to two reports by Mr. Brian Gardner, a consultant in spinal injuries, the first of which was prepared at the joint request of the claimant’s solicitors and the Criminal Injuries Compensation Authority, and the second at the request of the claimant’s solicitors.
16.	Extensive reference was made to the contemporaneous records of the claimant’s treatment. However, none of the treating doctors was called to give evidence. Furthermore, it is important to note that neither Mr. Paterson, consultant surgeon at the RUH, nor the RUH itself was represented in these proceedings.
Issue 1:If the Claimant had been admitted to the RUH by 05.30 on Sunday 27 November 2005 would a significant deterioration in his neurological condition have occurred before the step change in his condition which occurred between 22.05 on 28th November and 00.30 on 29th November?
17.	The term “significant deterioration” of the claimant’s neurological condition is first used in the note of the joint meeting of experts. All four experts who gave evidence before me used the term. Nowhere do they define the term. However, Mr. Burton has proposed the following definition: a material increase in the claimant’s neurological deficit which is likely to compromise his ability to function independently. I am content to use this as a working definition.
18.	The importance of this issue is explained in stark terms by Mr. Todd, one of the claimant’s experts, in his report.
“89. If the Court finds that loss of motor power to grade 4/5 on the right, 3/5 on the left occurred prior to what should have been an admission to RUH by 05:30 on 27th November then, in my opinion, the claimant’s case will probably fail.  Under those circumstances the doctors initially at RUH and subsequently at Frenchay Hospital would have been faced with a patient (“a patient with ankylosing spondylitis, a T11 fracture and critical stenosis at the level of the fracture), who had deteriorated but who was not actively deteriorating.  In my opinion, a patient with static neurological deficit (in this case numbness plus power at 4/5 on the right, 3/5 on the left) does not require emergency surgery.  He should have been managed on bed rest with an operation planned for the following week.  
90. If, by contrast, the Court finds that deterioration in motor function (to 4/5 on the right and 3/5 on the left) occurred after 05.35 on 27th November (when Mr. Lincoln should have been on bed rest with regular neurological observations) then that deterioration in neurological function should have prompted emergency surgery.” (original emphasis)

Thus, on the claimant’s case, if the claimant presented as a patient who had already deteriorated and was not actually deteriorating, it would have been reasonable to have managed him on bed rest with a planned operation for a later date.  However if the claimant’s condition was deteriorating during the course of Sunday 27th November and/or Monday 28th November, it would have been necessary to undertake emergency surgery either on the 27th or 28th November to prevent further neurological deficit.  
The sequence of medical events.
19.	In order to address this question it is necessary to consider in detail the available evidence of Mr. Lincoln’s condition.
20.	Immediately following the assault on 17th November 2005 Mr. Lincoln was helped to bed by his wife and daughter.  He was very restless that night and in a great deal of pain.  Mrs. Lincoln called their GP as soon as possible and Dr. Gough attended at around lunchtime on 18th November 2005.  Mrs. Lincoln states that her husband could not move and that he had wet the bed.   The GP entry for 18th November 2005 reads:
“Fall - accidental.  Last night.  Injured right lower ribs on way down.  No loss of consciousness.  No other injuries.  Slightly tender lower ribs posteriorly on right.  Chest clear.  Ibuprofen … advised on analgesic prn and mobilise as able.”
21.	Mr. Lincoln was seen by the out of hours doctors service at 20:00 hours on 19th November.  The note states:
 “… History:…needs stronger pain killers.  Head injury.  Ibuprofen not sufficient.  Would like script for stronger pain killers.  Pain lower back.  Normal bladder and bowel function.  No numbness in his legs.  Cannot have codeine because of constipation.  Will have diclofenac for short-term only.  
Final examination: final - diagnosis: final - treatment: diclofenac 50mg tds for 7 days…”
22.	Mrs. Lincoln’s evidence is that she and her daughter Mary did not leave Mr. Lincoln’s bed over the weekend.  He was still having accidents where he was wetting the bed notwithstanding that he was trying to urinate into a bottle.  On Monday 20th November 2005 she called for the doctor again.  Mr. Lincoln could hardly move.  
23.	The GP entry dated 21st November reads:
“Fall - accidental.  Fell last Thursday night, hit right lower ribs on back.  Tried ibuprofen and 25mg diclofenac, some relief.  Still in pain on mobilising to commode.  No neuro symptoms.  Tenderness over lower ribs on right at back, no obvious swelling bruising.  Able to move OK in bed.  Rx diclofenac … soft tissue injury that will hopefully settle with stronger analgesia to aid mobility, review end of week if no better.”
24.	The claimant was reviewed on 23rd November 2005. The note reads:
“Fall - accidental.  Phoned by rapid response.  Seen by physio yesterday.  OK at rest but muscle spasm ++.  Asking for muscle relaxant.  For few days diazepam.”
25.	Mrs. Lincoln’s evidence is that on Friday 25th November 2005 her husband was in intense pain and could not even manage to speak.  Their daughter Margaret called the out of hours service because she was concerned about the interaction of the diazepam with his anti-epilepsy drugs.  The out of hours doctor phoned back and said it would be fine to double the painkillers.  He did not want to come out and indicated that, as Mr. Lincoln had recently been seen by his GP, that was all that was required.  
26.	At 23:58 on Saturday 26th November 2005 there was a further call to the out of hours service.  The call was taken by Dr. Neelakandan. His subsequent return to the practice reads as follows:
“Reported condition: in a lot of pain, his legs have gone numb, cannot be moved.
…
Patient had a fall 1 week ago.  Has been seen by GP twice, on NSAID and diazepam.  Tonight pain got worse as he tried to go to toilet but is settling now – advised on analgesia.  Would like to see how it goes tonight  ? might try tramadol if gets worse.  Will call again if needed.”
27.	Mrs. Lincoln described that weekend as “terrible”.  She said that her husband was in so much pain that he was not eating.  He was unable to get up and go to the bathroom and his carers had problems washing him and turning him.  She remembered one of the carers saying that it looked like he had damaged his back.  By Sunday 27th November, she and her daughter Margaret had decided that they had to call the doctor back.  First thing on the Monday morning, 28th November 2005, they called the GP again.  
28.	Dr. Hills attended on the Monday.  The time of her visit is not known. Her record reads as follows:
“…
S: still in pain in abdomen and back, not mobilised out of bed since assessed week ago, weak legs left > right.  Been taking Diazepam also for spasm.  
O: Difficult to assess, moving right leg but left leg not moving much voluntarily, sensation intact bilaterally, reflexes reduced bilaterally, able to roll onto side with help, painful.  No obvious injury to back / bony tenderness but general abdomen tenderness. 
P: ? pelvic fracture, concern re decreasing mobility and continuing pain, discussed with family, best option for full [assessment] is RUH [Royal United Hospital] for x-rays etc, ambulance arranged.”
29.	The claimant was admitted to the Accident and Emergency Department at the Royal United Hospital, Bath at 18:24 on Monday 28th November 2005.  Mr. Lincoln was assessed by Dr. Yull, the Senior House Officer in the Accident and Emergency Department at 20.46.  His notes included the following passage:
“… Background ankylosing spondylitis previous spinal infection.  GP referral.  Fell 10 days ago.  Pain in lumbar region and pelvis.  Immobile.  Previously walking with sticks.  Reported numbness legs and feet.  Describes “clunking and spasms” in ? back / hips.  Care at home is wife and 1 visitor in morning from social services.  Had rapid response this week not coping.
Difficult historian, vague.  New urinary incontinence.  Not opened bowels for several days…
Normally mobilises with a stick. Now can’t move.
He recorded power in the right leg at 3/5 and in the left leg at 1/5 and sensation as normal in both legs.  
“Per rectum. Anal tone [reduced], faecal loading. Incontinent of urine, new.
Impression. ?Spinal Injury. Near flaccid left lower leg + urinary incontinent + reducing anal tone.
Plan. ... Refer orthopaedic review ?MRI scan…”
30.	In a letter dated 28th November 2005 to the claimant’s GP, Dr. Yull stated his provisional diagnosis as “Acute traumatic compression of the spinal cord?”
31.	Later that evening Mr. Lincoln was seen by the Orthopaedic Senior House Officer and the Orthopaedic Registrar, probably in that order. 
32.	Mr. Lincoln was seen by the Orthopaedic Senior House Officer at 22:05 on 28th November 2005.  His note describes the assault and continues:
“Had severe back pain immediately but managed to walk after being aided by his wife to the bed and was unable to stand up afterwards. This progressively worsened over the next 10 days and the patient’s condition grew worse due to back pain. Patient also started noticing further weakness of his already weak legs worse in the left side. Patient also developed urinary incontinence which improved 3 days ago. This was also associated no passage of stools for the last 10 days. No complaint of numbness in perianal areas and perineum.”
	His note showed motor power at 4/5 in the right leg and 3/5 in the left leg. He recorded normal sensation in the right leg but reduced sensation at four out of seven points in the left leg. His proposed plan included x rays, MRI scan and review by on call Specialist Registrar.
33.	At 23.55 he reviewed an x ray and recorded that there was widespread ankylosing spondylitis but no visible fracture.
34.	The notes of examination by the Orthopaedic Registrar include the following passage:
“Complains of thoracic back pain, increasing weakness left leg > right leg, numbness of left leg.
10 days ago he had domestic accident.  Allegedly assaulted by lodger who was under the influence of alcohol.  He was pushed onto a door handle and hit back…now complains of thoracic back pain and some increasing weakness of left leg.  Has not walked for last 3 days.  No urinary incontinence for last 3 days but had a short period of urinary incontinence 3 to 4 days after the accident.  Bowel not opened for last 10 days.  No complaint of numbness of his testicles, perineum and back passage.”
The Orthopaedic Registrar recorded motor power at 4/5 throughout the right leg and 3/5 throughout the left leg.   Sensation was said to be normal on the right leg but reduced in various dermatomes in the left leg.  Rectal examination demonstrated reduced anal tone, reduced power and normal sensations.  Under the heading “Impression” he recorded: “Deterioration of neurology left leg secondary to recent [fall]” His proposed plan included an MRI scan the following day and “Get old notes / refer to Frenchay to neurosurgeons depending on MRI findings.”
35.	The findings of the Orthopaedic Senior House Officer were therefore similar to those recorded by the Orthopaedic Registrar.  In particular their assessments of motor power were the same.
36.	Mr. Lincoln was recorded as having no leg movement at 00.30 on 29th November.  This was confirmed on the morning ward round.
37.	Overnight he was subject to limb observation hourly for the first eight hours and records kept of the results. The first entry made at 01.00 states that the patient could not feel his feet.
38.	Plain x-rays were reviewed on 29th November.  The doctor reading them recorded that he could see no evidence of an acute injury or an acute bony injury.  The notes record that Mr. Lincoln was still in considerable pain on the ward round that morning.  They also state:
“His neurology is difficult to assess because he does find it difficult to comply with any form of active movement because of the pain.  However he does have virtually no active foot dorsiflexion or plantar flexion and was completely unwilling to flex or extend his knee actively.”
39.	On the basis of this evidence the experts are all agreed that there was an acute deterioration in Mr. Lincoln’s neurological condition in the early hours of 29th November 2005.  Mr. Todd states that the above record suggests that power in both feet was probably 1/5 and at the knee 2 to 3/5 and that this is a Frankel C paraparesis. 
40.	Miss Langdon, consultant surgeon at the RUH, saw Mr. Lincoln on the morning of Tuesday 29th November (p. 456). MR imaging of the spine had been performed at 13.20 on 29th November 2005.  It appears from the medical notes that the results were not available on the morning of 30th November.  It is most unfortunate that those images have been lost.  The report identified the possibility of an acute injury at T11.
41.	Mr. Lincoln was seen by Mr. Patterson, consultant surgeon at the RUH, on the afternoon of 30th November 2005.  Mr. Patterson subsequently made the following note on 2nd December 2005:
“…neurologically his legs remain the same with marked weakness on the right and virtually no power on the left.  
I once again painted a very guarded and cautious picture.  I in fact spoke to his daughter Mrs. Thorpe last night about the prognosis.  I have overall said that left alone he is guaranteed to get paralysed.  If I do a decompressional procedure we may be able to save some of the sensation and what little power he had left.  There is a small chance that things improve.  We would only make the decision regarding the instrumentation based on how he does pre-operatively.  
My overriding concern is whether he would tolerate complex major operation anaesthetic.  I have tried to make contact with the anaesthetic department for their help with this.”
42.	A further note from Mr. Patterson dated 3rd December states that the anaesthetist had seen Mr. Lincoln and felt that his chest was just not in good enough condition for an operation under general anaesthetic to go ahead.  (It appears that by this date Mr. Lincoln was suffering from a chest infection).  Mr. Patterson recorded that when the patient’s chest improved he could go ahead and do the decompression.  The problem was that as it was a cord lesion the changes may well be irreversible.
43.	On 4th December Mr. Patterson recorded:
“…he has still got minimal movement in his right foot and virtually nothing elsewhere.  He does however have preservation of sensation…
…I have said that ideally one wants to do a decompression in the first 4 to 6 hours of onset weakness but with me having seen him for the first time at 10 days postoperatively I do not believe that this is now a progressive lesion, but we need to see whether we can help improve the situation.”
44.	On 6th December the notes record that Mr. Lincoln was still undecided in relation to surgery.  
45.	On 8th December Mr. Lincoln was transferred to Frenchay Hospital, Bristol where he was seen by Mr. Harding, Consultant Orthopaedic Spinal Surgeon.  The notes of that examination record that Mr. Harding explained that it was extremely unlikely that he would walk again and also explained to him the complications of surgery including “death, bleed, infection, no better, worse, spinal cord damage, dural tear, failure metal, pseudarthrosis, medical complications …” Mr. Lincoln consented to the operation and Mr. Harding operated on 9th December.  This involved a fixation of the T11 fracture, the cage and decompression of the spinal cord.  The fracture was found to be very unstable and mobile and there was scar tissue at T11 from the previous surgery.   There was also a sub-periosteal haematoma.
46.	In the operation Mr. Harding found that the fracture was highly mobile, so it was an unstable fracture.
47.	Mr. Lincoln’s current neurological status, although it improved marginally following the operation, remains at an average Frankel C paraparetic.  He has T12 motor and sensory incomplete paraplegia.  He is not able to walk or stand.  He is incontinent of urine and faeces and requires assistance by two persons to effect transfers and to dress, undress and attend to personal hygiene.
Observations on the medical records.
48.	Mr Todd is undoubtedly correct when he says that there are inconsistencies in the evidence provided by the medical records. It is convenient at this point to draw attention to certain aspects of this evidence.
49.	The call to the out of hours service at 23.58 on 26th November with its report of numbness in the legs is the first contemporary evidence of neurological deficit.
50.	Mr. Todd and Mr. Macfarlane agreed that the evidence of Dr. Hills’ examination on 28th November should be treated with some caution. It is an examination by a general practitioner in the patient’s home and this necessarily creates certain difficulties and limitations. Furthermore, Dr. Hills made an incorrect diagnosis in that she suspected a pelvic fracture and considered that there was no obvious injury to the back. As a result, in her examination she was not concentrating on neurological deficit. As Mr. Macfarlane pointed out, her note is ambiguous as to whether the weakness present related to pain or neurological deficit or a combination of the two. She did not carry out any rectal examination, nor would she be expected to have done so.  As a result the utility of any comparison of Dr. Hills’ findings with those at RUH later that day is limited.
51.	Dr. Yull made a correct diagnosis. However, he recorded motor power readings for both legs which were considerably lower than those obtained by the Orthopaedic SHO and Registrar later that evening. All the experts agreed that the most likely explanation of the disparity was the pain suffered by Mr. Lincoln at the time of his admission which had been addressed by the time he was examined by the orthopaedic SHO and Registrar and that, therefore, their assessments (which were identical with each other in this regard) should be taken as accurate. More generally, the experts considered that it should be borne in mind that Dr. Yull is an Accident and Emergency SHO who would not have the same expertise as the members of the orthopaedic team. 
52.	As to the weight which can be placed upon a comparison of the notes of Dr. Hills and Dr. Yull in determining whether there was a deterioration in the interim, Mr. Todd accepted that the court should be cautious when assessing the weight of Dr. Hills’s evidence, Mr. Wilson-MacDonald stated that on a comparison of the two “it could be said that things had deteriorated or things stayed the same – I just do not know”.
53.	The experts considered that the most accurate reflection of the claimant’s condition that evening was the report of the Registrar. He was the most senior appropriately qualified doctor to see the claimant that evening. Mr. Wilson-MacDonald considered that his very thorough notes suggested that he had carried out a very thorough examination. His conclusions on motor power were corroborated by the orthopaedic SHO. Furthermore, his notes show that he was aware of the pre-existing condition and the operations the claimant had undergone at Frenchay in 2002. His notes provide a particularly helpful statement of the claimant’s condition shortly after the end of the critical period.
Consideration of evidence.
54.	Mr. Todd observed in his evidence that the key question which I have to answer is whether observation of the claimant between 05.30 on 27th November and 18.24 on 28th November (“the critical period”) would have shown that he was continuing to lose neurological function or whether he was stable at a fixed level of neurological deficit. I note, in passing, that he also observed that it was a question that was impossible to answer. Mr. Wilson-MacDonald agreed with him.
55.	It is possible to identify some outer parameters for the neurological deterioration in this case.
(1)	The claimant had a long history of ankolysing spondylitis and previous spinal surgery in 2002 from which he had made an incomplete recovery. His mobility was reduced. Accordingly his motor power would not have comprised a complete range of 5/5s before the assault. 
(2)	The experts all agreed that there was a worsening of the claimant’s neurological condition on 26th November which resulted in a call to the out of hours service. They agreed that this was the first reported indication of neurological dysfunction. Furthermore, they agreed that the claimant’s inability to move on 26th November was a consequence of both pain and motor weakness.
(3)	The evidence revealed by the two orthopaedic examinations on the evening of 28th November is valuable in that it sets a limit beyond which the claimant’s condition cannot have deteriorated in the critical period. Mr. Todd and Mr. Wilson-Macdonald accepted that the claimant’s condition on 27th and 28th cannot have been worse than at the time he was examined by the orthopaedic team after 22.05 on 28th November. The experts are agreed that he would need a majority of 4/5s to be able to walk. Accordingly, the neurological deficit during that period cannot have been at a lower level than slightly below the level at which the claimant would have been able to walk i.e. 4/5 in the right leg and 3/5 in the left leg. 
56.	The claimant cannot give a detailed account of his neurological functioning from 05:30 on 27th November.  He was suffering a high level of pain and was confined to his bed.  It is understandable that he is unable to give an account of his condition over the critical period.
57.	There was evidence from members of the claimant’s family as to his condition during the weekend of 26th and 27th November.  In view of the interpretation which Mr. Burton invited the court to draw from this evidence, it is appropriate to set out the relevant passages on which he relies.
58.	  Mrs. Lincoln states: 
“That weekend was terrible.  Denzil was in so much pain that he wasn’t eating.  He was unable to get up and go to the bathroom, and his carers had problems washing him and turning him.  I remember one of the carers saying that it had looked like he had damaged his back. 
Margaret came over every day.  By Sunday we had decided between us that we had to call the doctors back.  We called the GP again on Monday morning first thing.  Dr. Hills again came out.  Margaret was present on this occasion but we had to persuade Dr. Hills to get Denzil to hospital.  Again I cannot remember if Dr. Hills examined Denzil.  Dr. Hills eventually relented and said she would call an ambulance from her surgery.   An ambulance did eventually arrive, but not until the early evening approximately 5.00pm.”
59.	Mary Lincoln states:
“By the night of the 26th November 2005, my father was still in very bad pain.  He couldn’t get up, and the pain was so bad that he didn’t want to try and get up or be moved.  I was very worried about him and therefore called the Out of Hours GP service late that night.  I remember telling the doctor that Daddy was in excruciating pain.  I think he may have asked me what medication Daddy was taking, and that he told me to give him more Diazepam.
By the morning of Monday 28th November 2005, my father had stopped urinating and emptying his bowels.  I think it may have been a couple of days since he had done so.  The pain did not appear to be getting any better.  My family and I were so concerned about Daddy, that we decided that we had to insist that he be taken to hospital.  I remember that my sister Margaret made a number of telephone calls to get my father to hospital.  A doctor from Daddy’s local surgery visited that morning and Margaret liaised with her to arrange for an ambulance to come and collect him.”
60.	Margaret Thorpe states:
“On the 28th November 2005 Dr. Hills arrived again to see my dad.  By this stage, we were over the 10 days after the assault, and I was very, very concerned for my dad.  Dad was in acute pain, it was so severe, he could hardly move in bed, let alone get out of bed.  He could hardly speak.  He couldn’t get up to go to the toilet, he couldn’t eat, and he could not even swallow painkillers.  I told Dr. Hills that he needed to be admitted to hospital, and whilst at first she seemed reluctant, she eventually heeded my request and called for an ambulance to come and collect my dad to take him to hospital.
… When I arrived [at the hospital on evening of the 28th November] I remember that it was very difficult for him to be moved and he was shouting out in pain.
… I was terrified to see my dad in such a terrible condition.”
61.	On behalf of the defendant, Mr. Pittaway QC did not consider it necessary to cross examine these witnesses on this issue but he made clear that this evidence is not admitted. 
62.	 Mr. Burton submits that this evidence demonstrates a progressive neurological deterioration over the whole weekend.  I accept, as did all the experts, that there was an event on 26th November which caused a deterioration of the Claimant’s neurological condition.  This is what caused the call to the out of hours doctor and this record is the first occasion on which any neurological symptoms are mentioned.  The evidence of the Claimant’s family certainly supports the view that thereafter and throughout the weekend he was in acute pain and that his condition did not get any better.  However, I am unable to find any support in this evidence for the view that following the event on 26th November there was a further deterioration in his condition over the critical period.  Indeed the evidence of Mary Lincoln makes the point that by Monday 28th November the pain did not appear to be getting any better.
63.	The note made by the defendant on the evening of 26th November certainly supports the view that there was a deterioration in the claimant’s neurological condition at that stage.  However, it is his condition thereafter on which this issue turns.  Although I do not attach great importance to it in this respect, I note that the defendant’s note states: “Tonight pain got worse as he tried to go to toilet but is settling now.” That might suggest that the level of pain actually reduced at that stage.  In this record the defendant also notes that he might try tramadol if it gets worse and that they will call again if needed.  In the event there was no further call to the out of hours doctor over the weekend. 
64.	Finally, in this regard, following his arrival at the RUH on the evening of 28th November the Claimant was seen by three doctors.  Each of them received and recorded a history of his condition.  This must have been obtained either from the Claimant or members of his family who were with him.  There is no suggestion in the recorded history that any of them had reported that the condition had worsened over the weekend.   
65.	It seems to me therefore that the accounts of the family are at least as consistent with a worsening of the condition on 26th November and its remaining stable thereafter as with the condition deteriorating further over the weekend.
Interpretation of records – expert evidence.
66.	Both of the experts called by the claimant, Mr. Todd and Mr. Wilson-MacDonald, considered that from a medical standpoint there was insufficient evidence upon which they could properly express an opinion as to whether the claimant suffered a significant neurological deterioration in the critical period.  Mr. Todd stated in his oral evidence that he found the evidence of deterioration in this case “contradictory and difficult.”  When it was pointed out to him that he had not offered a medical opinion as to whether there was a significant deterioration in the critical period he stated that there was such a lack of evidence that he thought it was improper of him to presume to do so.  He made clear that he was unable to say on the balance of probabilities whether significant deterioration took place within the critical period.  He considered that it was very difficult to say, perhaps impossible to say accurately, what happened on 27th – 28th November.  It was impossible to say what happened at various points in time because the evidence was just missing.  Mr. Wilson-MacDonald expressed the same view.  He stated that he did not know whether there had been a significant deterioration in the critical period. In re-examination both experts were taken through the medical and lay evidence and invited to comment on the limited evidence available.  Neither altered his view that he could not state whether there had been deterioration.  Furthermore, both Mr. Todd and Mr. Wilson-MacDonald considered that neither Dr. Hills’s nor Dr. Yull’s note could be treated as a reliable indicator of the Claimant’s neurological symptoms. 
67.	 The experts called by the defence considered that there was no significant deterioration in the claimant’s neurological condition in the critical period. Mr. Macfarlane’s opinion was that a significant event had occurred on 26th November and that relatively little in the way of neurological change occurred thereafter until the serious decline after 22.05 on 28th November and before 00.30 on 29th November. Mr. O’Dowd agreed with the evidence of Mr. Macfarlane. He also expressed the opinion that there was no progressive deterioration of the claimant’s neurological functioning over the week following the accident.
68.	It is convenient to consider the different facets of the claimant’s neurological condition in turn.
Sensation.
69.	Dr. Neelakandan’s note of the call to the out of hours service at 23.58 on 26th November records a report that “his legs have gone numb”. However, Dr. Hills on 28th November found that sensation was intact bilaterally but that his reflexes were reduced bilaterally. Following the claimant’s admission to hospital on the evening of 28th November, Dr. Yull recorded at 20.46 “reported numbness legs and feet”. I do not attach any significance to the fact that numbness in the feet is referred to for the first time by Dr. Yull. As Mr. Todd observed in his oral evidence, the feet are part of the legs. Furthermore, Dr. Hills reported “sensation intact bilaterally”. In any event, the reference to the feet is in the reported history. On examination Dr. Yull found that sensation was normal in both legs. Accordingly, both Dr. Hills and Dr. Yull found sensation in both legs to be normal. Furthermore, so far as the complaint of numbness i.e. subjective numbness, is concerned, it was Mr. Macfarlane’s unchallenged evidence that it is very common to find subjective numbness where no compression in fact exists.
70.	Thereafter there are findings of impaired sensation. At 22.05 the Orthopaedic Senior House Officer recorded normal sensation in the right leg but reduced sensation at four out of the seven points tested in the left leg. However, he also recorded “no complaint of numbness in perianal areas and perineum”. Similarly, the Orthopaedic Registrar recorded a complaint of numbness of the left leg but “no complaint of numbness of his testicles, perineum and back passage”. On examination he found normal sensation in the right leg but reduced sensation in four dermatomes in the front of the left leg. Rectal examination demonstrated reduced anal tone, reduced power and normal sensations.
71.	If Dr. Yull’s findings are correct this would provide some evidence of deteriorating sensation. Mr. Macfarlane accepted that this is evidence of a degree of spinal cord dysfunction. However, his evidence on this point, which was not challenged, was that retained sensation in the other leg and in the buttocks and genitals indicates relatively little sensory disturbance and mild spinal cord dysfunction. Furthermore, as Mr. Burton very fairly accepted in his closing submissions, it may be that the Orthopaedic SHO and Registrar could be satisfied there was no severe neurological loss because of the motor power readings.
Motor Power.
72.	The record made by Dr. Neelakandan of the out of hours call on 26th November includes under the heading “reported condition” the phrase “his legs have gone numb, cannot be moved.” That may well be a complaint of an inability to move his legs. On 28th November Dr. Hills recorded a complaint of weak legs with the left leg weaker than the right. She considered that the patient’s condition was difficult to assess and that he was moving his right leg but his left leg was not moving much voluntarily. Dr Yull recorded at his examination that evening, “Normally mobilises with a stick. Now can’t move” and recorded power at 3/5 in the right leg and 1/5 in the left leg. As we have seen, it was common ground among the experts that those readings are inaccurate. The Orthopaedic SHO recorded as part of the history “Patient also started noticing further weakness of his already weak legs worse in the left side.” No indication is given of the time at which that first became apparent. He recorded motor power at 4/5 in the right leg and 3/5 in the left leg. The Orthopaedic Registrar noted complaint of increasing weakness in the left leg greater than in the right leg and he also recorded motor power at 4/5 in the right leg and 3/5 in the left leg. There is also a note by Mr. Harding from about 8th December 2005 to the effect that there was weakness 5-7 days after the assault when attempting to mobilise at physiotherapy, that the patient could not mobilise due to thoracic pain and weak legs and that leg weakness progressively increased.
73.	The references to increasing weakness by the Orthopaedic SHO and Registrar and by Mr. Harding are not particularly illuminating for present purposes because they do not indicate the period referred to. The results recorded by the Orthopaedic SHO and Registrar on the evening of 28th November are not inconsistent with the record of Dr. Hills earlier that day that both legs were weak. There is nothing here to suggest a deterioration in the interim. 
74.	In his oral evidence Mr. Macfarlane drew attention to one aspect of this evidence which, to my mind, strongly supports his conclusion that, following the significant event on 26th November, relatively little occurred in the way of new change between that time and the claimant’s admission to hospital. The level of motor power found by the two Orthopaedic doctors on the evening of 28th is significant in that it indicates a neurological level just below the level required to enable the patient to walk. Although the evidence on the point is not entirely uncontradicted, there is evidence that Mr. Lincoln was able to walk until three days earlier. (Mrs. Lincoln states that that weekend (i.e. 26th and 27th November) her husband was unable to get up and go to the bathroom. The claimant’s daughter, Mary Lincoln, states that by the night of 26th November her father was in still in very bad pain, he could not get up and the pain was so bad that he did not want to try and get up or be moved. The Orthopaedic Registrar recorded as part of the history with which he was provided that the claimant had not walked for the last three days. On the other hand, Dr. Hills records “not mobilised out of bed since assessed week ago”.) I find on the balance of probabilities that the claimant was able to walk prior to the event on 26th November. That evidence supports the view that his neurological condition did not deteriorate further between the event on 26th November and the examination by the Orthopaedic doctors on the evening of 28th November.
Sphincter control.
75.	Mr. O’Dowd accepted that both incontinence and retention are potential evidence of neurological decline. On 19th November the claimant was seen by the out of hours service. The note records normal bladder and bowel function. Mary Lincoln’s evidence was that by the morning of 28th November her father had stopped urinating and emptying his bowels. That evening Dr. Yull referred twice in his notes to “new” urinary incontinence. However, later that evening the orthopaedic Registrar recorded “No urinary incontinence for last 3 [days] but had a short period of urinary incontinence for 3-4 [days] after the accident.” The difficulty here is that the available evidence is so contradictory that it fails to provide any sound factual basis for analysis.
Pain
76.	Mr. Burton submits that the increase in the pain suffered by the claimant over the weekend of 27th and 28th November supports his case of significant neurological deterioration in the critical period. However, while Mr. Macfarlane accepted that there can be simultaneously both extreme pain and deteriorating neurology, it does not follow that extreme pain is necessarily evidence of deteriorating neurology. More fundamentally, however, as explained earlier in this judgment, I do not consider that the evidence of the family establishes that the pain, which was undoubtedly severe, was getting worse over the weekend. On the contrary, it seems to me on a fair reading to establish that it was not getting any better.
Treatment on arrival at the RUH.
77.	I also attach significance to the treatment received by the claimant following his arrival at the RUH on the evening of 28th November. He was examined by three doctors. Reference has been made above to the fact that none of them appears to have been told that his condition had deteriorated over the weekend. All of the experts in this case were agreed that clinical evidence of a significantly deteriorating neurological condition would necessitate, at the least, emergency imaging. Yet none of the hospital doctors treated this case as an emergency. The Orthopaedic Registrar decided to arrange for an MRI scan at the RUH the following day. His plan was “to refer to Frenchay depending on MRI findings”. He clearly did not consider transferring the claimant to Frenchay that night. Nor does he appear to have contemplated a CT scan. I also note that it is apparent from his notes that he was aware of the claimant’s previous condition and operations in 2002.
78.	There subsequently occurred a major deterioration in the claimant’s neurological condition first recorded at 00.30 on 29th November. Thereafter, he was known to be suffering from severe paraparesis and I accept that his treatment from that point cannot cast any light on his condition before admission. However, the reaction of the hospital doctors on the evening of 28th November is, to my mind, clear evidence that they did not consider that the claimant’s condition had been deteriorating over the weekend or was then deteriorating. Furthermore, the records of their examinations support the view that the claimant’s neurological condition was not deteriorating over the period covered by their examinations.
79.	Mr. Burton, very fairly, accepts that there is very little hard evidence to support his case on deterioration.  However, relying on the decision of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Limited, he invites me to approach the claimant’s case benevolently, because the effect of the defendant’s negligence has been to deprive the claimant of the evidence which would have been available as to his condition, had the defendant not been in breach of duty and had the claimant been admitted to the RUH at 05.30 on 27th November. In particular he submits that had the defendant not been negligent there would have been an examination by a senior house officer in Accident and Emergency within one to one and a half hours after 05:30 on 27th November and examinations by the orthopaedic team thereafter.  There would also have been hourly neurological observations.  He submits that the very reason why the claimant cannot precisely prove his neurological deterioration is due to the defendant’s negligence.  
80.	To my mind Keefe is not concerned with a reversal of the burden of proof.  Indeed Mr. Burton was anxious to disavow any suggestion to that effect.  It is established on high authority (Bolitho, Wilsher) that the burden of proof on causation lies and remains on the claimant.  Furthermore, I have difficulty in seeing how the benevolent approach adopted by the Court of Appeal in Keefe could be accommodated within such a reversal; either the burden is reversed or it is not.  
81.	Rather, Keefe is concerned with the weight which is to be attached to evidence and the circumstances in which the court may draw inferences.  This is how Longmore L.J. explained it.  He referred to the observations of Lord Diplock in Herrington v British Railways Board that failure to call a witness may result in an adverse finding and then applied the same principle to a situation where a defendant has made it difficult or impossible for a claimant to adduce relevant evidence.  The references to a benevolent approach to the claimant’s case and a critical approach to the defendant’s case fit well with this concept.  
82.	Whether it is appropriate to draw an inference at all and, if so, the precise nature and extent of such an inference will depend on the particular circumstances of each case.  Relevant considerations will include the proximity between a breach of duty and the non-available evidence, the effect of the other evidence before the court and what other evidence might have been available but which is not before the court.  
83.	Contrary to the submission of Mr. Pittaway QC on behalf of the defendant, I can see no reason why the principle should not apply in a case concerning causation as opposed to negligence (as was the case in Keefe).  Applying such a fact sensitive approach to the present case, I do not consider that it is appropriate for me to draw any inference in favour of the claimant.  Here the following factors are relevant, although not of equal weight. 
(1)	I accept that if the claimant had been admitted to the RUH at 05:30 on 27th November there would be records of his condition.
(2)	This is not a case where the defendant was under a duty to take the measurements which are lacking.  He was under a duty to visit the claimant, to examine him and to make a record of what he found at that time.  No doubt he would have been required to record any neurological symptoms which he found.  However it is not the lack of that evidence of which the claimant complains.
(3)	The claimant could have called Dr. Hills and the doctors who examined him at the RUH on the evening of 28th November to give more detailed evidence on his condition at the end of the critical period and to assist with the interpretation of their records.  
(4)	The evidence before the court does not merely fail to demonstrate a significant deterioration in the critical period but it points to the contrary conclusion.  
Bearing in mind the lack of evidence of which the claimant complains and adopting as benevolent an approach to the claimant’s evidence and as critical an approach to the defendant’s evidence as I consider I appropriately can in the particular circumstances of this case, I have nevertheless come to the clear conclusion that there was no significant deterioration in the claimant’s neurological condition over the critical period.   
Issue 2: If so, and if Mr. Lincoln had been admitted at 05.30 on 27th November, what treatment would he have received?
84.	The question for consideration here is, if there had been a significant deterioration in his neurological condition, what treatment would the claimant have received had he been admitted at 05.30 on Sunday 27th November and, in particular, would he have undergone an emergency operation before the further event which occurred between 22.05 on 28th November and 00.30 on 29th November.
85.	It is convenient to begin by considering what, if any, light may be cast on this issue by the treatment which the claimant actually received after his admission on the evening of 28th November. Mr. O’Dowd relied heavily on extrapolation from the actual events of 28th November. He pointed to the fact that when admitted the claimant was not sent for urgent imaging. The imaging was carried out the next day. That, he considered, shows that the same thing would have happened if the claimant had been admitted on the morning of 27th November. (It is established that no MRI imaging facility was available at the RUH out of hours.) However, the difficulty with Mr.O’Dowd’s approach, as Mr. Burton pointed out, is that the postulated situation is very different from that which occurred. In the postulated situation the claimant would have been admitted at 05.30 on Sunday 27th November and would thereafter have been seen to be suffering a significant deterioration in neurological function. In the actual situation the examination on the evening of 28th November did not reveal that his neurological condition was significantly deteriorating. In the absence of deterioration it was common ground among the experts that there was no requirement for mandatory scanning. Furthermore, by the time he was seen by Miss Langdon and Mr. Paterson a further event had occurred and he had a fixed neurological deficit. Accordingly, I do not consider that the decisions actually taken following his admission cast any light on what would have occurred, in the postulated circumstances, had he been admitted on Sunday morning, 27th November. 
86.	Had he been admitted on that Sunday morning the claimant would have been examined by a doctor in the Accident and Emergency Department and by one or more doctors in the Orthopaedic Department, as in fact occurred. He would have been admitted. All of the experts agreed that he would have been subject to hourly neurological assessment of the lower limbs for at least the first 6 hours after admission and, in the absence of evidence of deterioration, at wider intervals thereafter. As a result any neurological deterioration would have been apparent. Mr. O’Dowd’s evidence was that if it was found that the patient’s neurological condition was deteriorating the medical team would be alerted after one or two such observations, but if it was a slow deterioration it might be left overnight. However, in the light of the evidence of the other experts, I find that in the case of this patient, with a working diagnosis of thoracic myelopathy, if the hourly assessments had disclosed a substantial decline this would have been reported urgently and promptly to the medical team. Furthermore, I find that at that point the advice of the spinal unit at Frenchay would have been sought and obtained immediately.
87.	Had the claimant been admitted to the RUH on the Sunday morning, there would have been no MRI imaging facility available there before the following morning at the earliest. Without the benefit of the results of such a scan, an orthopaedic surgeon could not know whether the claimant was suffering from a fracture or how severe the stenosis was. However, Mr. Todd, whose evidence I accept on this point, firmly rejected the suggestion that the treating surgeon would not know in these circumstances whether the case required to be treated as an emergency. The indication for emergency surgery would be that the patient’s neurology was deteriorating. The case for emergency surgery would be entirely clinically based. 
88.	So far as emergency imaging is concerned, it was the evidence of Mr. Todd that if there was clinical evidence of significant neurological deterioration it would be mandatory to carry out emergency imaging. His view was that if the claimant had been admitted on the morning of 27th November in the condition he was in on the evening of 28th November imaging could reasonably be deferred to the Monday morning. However, if he was observed to be losing function he would require emergency imaging. Mr. Wilson–MacDonald agreed with that view.
89.	Mr. Macfarlane took a very similar view. It was his evidence that if there was significant neurological deterioration and no MRI facility was available at the RUH out of hours it would be mandatory to get a scan at another hospital. He said that if the claimant had been admitted on the Sunday and there was a significant deterioration that day he would expect the Orthopaedic Registrar would want him imaged as an emergency. Accordingly, he would have phoned Frenchay and asked them to take him for a scan. Furthermore, if the claimant was deteriorating Mr. Macfarlane would expect that an emergency scan would be carried out that day. 
90.	Mr. O’Dowd’s evidence on this point was that if there were a significant deterioration it would not be unreasonable to obtain an urgent MRI scan and consider emergency surgery. However, he explained that by significant deterioration he meant to the reduced level attained by the claimant on the morning of 29th November. A deterioration to the level found when the claimant was actually admitted on 28th November would not, in his view, be sufficient to justify emergency imaging.
91.	I find Mr. O’Dowd’s evidence on this point difficult to accept. To my mind, there must be a greater justification and therefore a greater requirement for emergency imaging and possibly treatment thereafter when a deteriorating patient is still at a level at which more can be achieved by emergency treatment than at a level of even more severe neurological deficit. I have no hesitation in preferring the views of the other three experts on this point. 
92.	MRI facilities were available at Frenchay throughout that weekend. I conclude that, had the claimant’s neurological condition deteriorated significantly at the RUH that weekend, he would have been transferred as an emergency to Frenchay for imaging and for consideration by the specialist spinal unit there as to what further treatment was appropriate.
93.	We know that the results of emergency imaging may not have been entirely unequivocal. The MRI scan actually carried out on 29th November 2005 was reported as follows:
“The appearances in the mid and lower thoracic spines suggest a fusion operation, possibly a spinal oseotomy. There is a large amount of fat signal within these vertebral bodies. There is fluid containing cleft in the body of T11. This could be an acute injury, although there is no definite parvertebral haematoma. An alternative explanation is that this is a persistent mobile segment, although the cleft appears to pass through the body of the vertebra rather than through the IV disc space.”
We also know that the specialist spinal unit at Frenchay would have had the expertise to carry out an emergency operation over the weekend if that was considered the appropriate course. The question then arises whether the claimant would have undergone emergency surgery at Frenchay before he suffered the further event which occurred between 22.05 on Monday 28th November and 00.30 on Tuesday 29th November.
94.	All of the experts agreed that the claimant’s was a complex case and that this was technically a difficult operation. Particular attention was drawn to the claimant’s previous condition and the fact that his previous surgery in 2002 had resulted in an incomplete recovery. There was also the complication of operating on a man with a stiff rib cage. Before an elective or semi-elective operation on this claimant there would need to be a substantial number of tests including pulmonary function test and blood gases test. The experts all agreed that in such circumstances you would not carry out emergency surgery unless you have to. 
95.	It was Mr. Todd’s opinion that if the claimant was losing function, unless there was something overwhelming against surgery, you would balance the risks and the benefits together and discuss the options with the patient. He considered that if the claimant had been deteriorating on 28th November he would have been treated as an emergency and the operation would have been carried out that day. It was Mr. Todd’s view that if this MRI result and the postulated deteriorating neurology came to the attention of Frenchay, it would not be put over to the next day but would be a case for emergency surgery the same day. It would have been carried out after a minimum work up of an hour or two. He noted that there was here no independent compelling medical problem that needed to be treated.
96.	Mr. Wilson–MacDonald’s opinion was that “in such a situation we tend to operate rather than not”.  He explained that a patient can deteriorate in bed so the surgeons operate as soon as they reasonably can. His view was that in a deteriorating situation where the patient can deteriorate very rapidly the benefits of operating at the earliest reasonable opportunity are very considerable. If it is possible to stabilise the condition it is of huge benefit to the patient. He considered that you would have to have a very high risk of death or irreversible problems before you decided not to operate in the postulated circumstances.
97.	Mr. Macfarlane’s approach was more cautious. He accepted the underlying surgical principle that in the case of a deteriorating neurological condition the earlier one can treat and decompress the spinal cord the more likely one is to preserve cord functions. However, in his view this would not necessarily mean an emergency operation for this claimant in the postulated circumstances. It would depend on the balance of risks and advantages. In particular, he pointed to the following matters.
(1)	In his report he considered at length the complexities of the claimant’s condition. He shared the view of the other experts that this was a difficult case and a technically difficult operation. This case would benefit from a consensus of radiographers and surgeons as to the most appropriate treatment.
(2)	There are additional risks in operating out of hours.
(3)	He pointed to the fact that on the Monday evening, 28th November, some ten days after the injury, the Registrar’s motor power readings were only just below the level at which the claimant could walk. This was, in his view, relevant to the urgency of any operation. As long as the usual precautions were maintained he was unlikely to deteriorate acutely at that stage and there was nothing in his medical records to indicate that he was likely to do so. 
Mr. Macfarlane’s conclusion was that the many complexities of this case made it inadvisable to conduct an emergency operation unless it was absolutely unavoidable. He considered that in the postulated situation the claimant would have had elective and not emergency surgery. “You have to look at everything. It would be a mistake to rush into an operation.”
98.	The opinion of Mr. O’Dowd on this point in his report is heavily influenced by his view that the rate of clinical management of the claimant in this hypothetical case would be likely to reflect that which actually occurred. He did not resile from this in his oral evidence. For the reasons given above, I do not accept that this extrapolation is appropriate. 
99.	I have no doubt that the hypothetical situation would have posed a difficult problem for surgeons at Frenchay called upon to decide whether or not to conduct an emergency operation. The complexity of the claimant’s pre-existing condition, his age, what may well have been an equivocal MRI result and the difficulty of the operation would all have been weighty factors in one direction. In addition it would not be possible to carry out the normal work up to the operation, although I am persuaded on the basis of Mr. Wilson-MacDonald’s evidence that it would be possible to do a certain amount in an hour or two before an emergency operation. On the other hand, I note that there were present no independent compelling medical problems which required treatment. (In particular the chest infection which necessitated the postponement of an operation in early December had not arisen at 28th November.) I have nevertheless come to the conclusion that, on balance, the surgeons at Frenchay would have recommended emergency surgery. In coming to that conclusion I am influenced in particular by the evidence of Mr. Todd and Mr. Wilson-MacDonald that in a case of deteriorating neurology it would require a very grave objection to prevent an emergency operation which was capable of saving function and their evidence of the huge benefits to be derived from arresting the neurological decline. I am confident that the surgeons at Frenchay would have been acutely aware that an operation performed on the claimant while he was at the neurological level actually found by the Registrar on the evening of 28th November could well make the difference between a reasonably independent future and one of total dependency.
Consent.
100.	The decision whether to carry out emergency surgery is not simply a medical matter for the doctors. It would have required the consent of the claimant. The question whether the claimant would have consented to an emergency operation in the postulated circumstances was first raised in the Amended Defence. However, it came to greater prominence in the Joint Statement of Experts. In these circumstances I allowed the claimant to lodge a short additional witness statement dealing further with this issue. The application was not opposed by the defence. The claimant was cross examined on this issue on behalf of the defence. The claimant is now 81 and apart from his disability he is very deaf. I am satisfied that he was a truthful witness who was trying his best to assist but it is clear that he did not find giving evidence easy. Similarly, the claimant’s daughter, Margaret Thorpe, was called to give oral evidence on this issue.
101.	In his second statement the claimant said that he trusted the surgeons at Frenchay and when he was transferred to Frenchay on 8 December 2005 he consented to have the surgery the following day. “If I had been transferred to Frenchay Hospital as soon as my injury had been diagnosed, I do not believe I would have questioned the advice to have surgery, as I did at the Royal United Hospital, and I would not have delayed in giving my consent to proceed.”
102.	The reference to questioning the advice to have surgery at the RUH relates to a proposal that Mr. Paterson should operate there. The claimant’s account was as follows. In his first witness statement the claimant stated that one of the surgeons was trying to persuade him to have an operation on his spine, but he was not happy about it at all. “I insisted that if I was going to have surgery, I wanted to be transferred to the Frenchay Hospital, under the care of the surgeons who had last treated me in 2002.” In his second witness statement the claimant stated that on 28th November 2005 Mr Paterson was trying to persuade him to have an operation on his spine but he was not happy about it. He was initially told that Mr. Paterson would not be able to perform the surgery he needed and that he would need to be transferred to Frenchay for this. He was subsequently told that Mr. Paterson would perform the surgery but that the chances of its being successful were not very good. The claimant says that he then insisted that if he was going to have surgery he wanted to be transferred to Frenchay under the care of the surgeons who had treated him in 2002 and whom he trusted.  
103.	We know from the records that the claimant did not see Mr. Paterson as early as 28th November. Furthermore, the claimant was not entirely consistent in cross examination. This is, perhaps, not surprising because, as he said, he had other problems at the time and pain tends to numb your recollection. However, he says that he can remember that having the operation was on his mind. At one point in his evidence he said that he was requesting to go to Frenchay all the time because it was a better spinal unit. “My wish from the very beginning was to go to Frenchay because my opinion was that the best people were the spinal specialists at Frenchay.” However, at another he said that until the MRI scan confirmed he needed surgery he did not want to go to all the trouble of going to Bristol. It was further for his family to travel. He also accepted at one point that it was possible he may not have expressed that view. He said that the initiative for him to go to Frenchay came from him and his family – he and his family wanted him to go to Frenchay  - and not from the RUH.
104.	Margaret Thorpe’s evidence was that the RUH tried to arrange for a transfer to Frenchay. Her father had not requested it at that stage. They tried to find Mr. Nelson who had operated on her father in 2002 but he was on leave. Mr. Paterson then told the family that he would perform the operation if they wanted him to but that there was only a 20% chance of her father surviving. She explained that they did not feel that was a good outcome. However in the hours that followed they did try to persuade him to have the operation. He was in such pain that they wanted some resolution. She explained that that was at a time when they were very unhappy at the option of Mr. Paterson doing the operation but he was in such pain that they wanted something to be done. She explained that her father stopped taking painkillers so he could take a clear decision. She said that it was at this stage that her father had asked her to arrange for him to go to Frenchay. 
105.	Margaret Thorpe’s evidence was that in the midst of everyone trying to persuade him to have surgery at the RUH he called her over and whispered in her ear, “Margaret, you can get me to Frenchay to have surgery.” She then discussed the matter further with Mr. Paterson, the Registrar and the sister on the trauma ward at the RUH and they made the arrangements with the surgeon at Frenchay.
106.	Mary Lincoln’s evidence was that her father was not happy about the prospects of surgery being successful at the RUH and decided that he did not want to go ahead with it. Margaret then arranged for him to be transferred to Frenchay.
107.	Mrs. Lincoln’s evidence is that Mr. Paterson said that he was not able to do the operation himself and he would need to transfer Mr. Lincoln to Frenchay where Mr Nelson, who had operated on her husband in 2002, was based. However, they could not get hold of him and nothing really happened that week. By the Friday Mr. Paterson said that as he had not been able to get hold of Mr. Nelson he would have a go himself. However, he indicated to the claimant and Mrs. Lincoln that the chances of his surviving the operation were low and that the claimant decided not to have the operation. Mrs. Lincoln states that Margaret was frantically trying to get hold of someone in Frenchay. Finally, with the help of the trauma sister at the RUH she was able to get her father moved to Frenchay where he had surgery.
108.	A note by Mr. Paterson dated 2nd December 2005 states that he had, once again, painted a very guarded and cautious picture. There was a small chance that things might improve. His overriding concern was whether the claimant would tolerate the complex major operation and anaesthetic. On 3rd December he noted that the anaesthetist had seen the claimant and felt that his chest was just not in a good enough condition for him to undergo a general anaesthetic. (I understand this to refer to the chest infection which the claimant had developed by that date.) There is, however, nothing in the medical records about a transfer to Frenchay until a reference on 5th December. 
109.	I am conscious of the fact that Mr. Paterson has not had the opportunity to give his account and that neither he nor the RUH is represented in these proceedings. However, I accept that, whether it is in fact accurate or not, the evidence given by the claimant and members of his family on this matter reflects their understanding of what was happening at the time. Moreover, certain things are clear from the account of the claimant and his family. 
110.	First, the claimant was reluctant to consent to Mr. Paterson carrying out the operation at the RUH. This is, perhaps, not surprising given the claimant’s understanding of the situation. According to Mrs. Lincoln and Margaret Thorpe, Mr. Paterson had said initially that he was not able to do the operation himself and that it should be done by Mr. Nelson at Frenchay. It was only later that Mr. Paterson said that he would attempt the operation. Whether that is correct or not, by 2nd December Mr. Paterson’s assessment of the outcome was bleak. However, it seems to me that the claimant’s reluctance to undergo surgery at the RUH on about 2nd December does not cast any light on the question I have to decide. The circumstances were very different. This was not a case of a deteriorating condition where time was of the essence and an emergency operation could improve the outcome. There was not present the urgency there would have been had a deteriorating condition been identified on 27th November. The claimant was now suffering from a chest infection which was of serious concern to the surgeon. It was, at the least, acknowledged that he may not survive the operation. On the account of Mrs. Lincoln and Margaret Thorpe, there was reason to doubt whether Mr. Paterson was the appropriate person to perform this operation. 
111.	Secondly, by contrast, the claimant had a high regard for Frenchay. He knew that, unlike the RUH, it was a specialist spinal unit. He regarded it as a better hospital for his needs. He had been treated there successfully in 2002 and he believed that they would have a better understanding of his needs. He had confidence in the surgeons there. Furthermore, I note that when he was moved there he consented immediately to an operation the next day.
112.	For these reasons I have come to the clear conclusion that, in the postulated circumstances, had the claimant been taken to Frenchay on 27th or 28th November and been advised that he should undergo an immediate operation, he would have given his consent promptly.
Timing.
113.	If the claimant had been admitted to the RUH at 05.30 on 27th November and had thereafter suffered a significant deterioration, it is necessary to consider whether he would, on the balance of probabilities, have undergone an emergency operation prior to the rapid deterioration which occurred between 22.05 on 28th November and 00.30 on 29th November.  That gives a window of about 40 hours. We know that the Frenchay spinal team worked on a 24 hour basis and that there were surgeons there capable of carrying out this operation.
114.	The evidence of Mr. Todd and Mr. Wilson-MacDonald which has led me to conclude on balance that a significant deterioration in the claimant’s neurological condition would have led to an emergency operation at Frenchay has been set out above. They considered that it is likely that if that deterioration occurred on 27th November the operation would have been performed on either 27th November or the morning of 28th November.
115.	Mr. Macfarlane drew attention to the importance of surgery taking place during the working day. He considered that had there been a significant deterioration in the claimant’s condition on 27th November he would expect him to be transferred to Frenchay for a scan that day. Because this was a complex case he considered that the claimant would be managed conservatively. He thought 28th November would be taken up by other assessments with elective surgery taking place on 29th November.
116.	In his report Mr. O’Dowd considered timing on the basis that the claimant would have been scanned at the RUH on Monday 28th November and that an operation would not have taken place until 29th November. In his oral evidence he was invited to address the alternative that deterioration would have been followed by an emergency scan at Frenchay. At first he said that there would still be no operation until Tuesday 29th November. However, in cross examination he accepted that if the claimant had an MRI scan at Frenchay on 27th November it would be possible to work the operation up so that it might have taken place in the afternoon of 28th November.  In re-examination he said that if there had been a substantial deterioration on the 27th November there would first be a discussion with Frenchay which might lead to a transfer or a decision to wait for a scan at the RUH on Monday. If transferred on Monday 28th November the operation would be more likely to take place on Tuesday 29th November. However, if transferred on Sunday 27th November, there would be a clinical assessment that day and a scan that day or the next, depending on the speed of deterioration. The operation would not take place earlier than Monday afternoon 28th November. If the claimant’s neurological state was the same as on his actual arrival at the RUH, the operation could have taken place on Monday afternoon 28th November, but was more likely to have taken place on Tuesday 29th November.
117.	The timing of events following the observation of a significant deterioration in the claimant’s condition would, of course, depend on when within that period of approximately 40 hours it took place.
118.	I approach this issue on the basis of the evidence of Mr. Todd and Mr. Wilson MacDonald, which I accept, that in the postulated circumstances the benefits of operating at the earliest reasonable opportunity are considerable. I also accept that some time would have been required to work up the emergency operation and to obtain the consent of the claimant. If the deterioration was observed during 27th November I consider on the balance of probabilities that the claimant would have been moved that day to Frenchay, that the scanning would have taken place and that the operation would have been carried out the same day or at the latest on 28th November. Similarly, I consider that if the deterioration had occurred early on 28th November he would have been transferred to Frenchay forthwith and an emergency operation carried out there. Whether that operation would have taken place before the time of the rapid decline would depend on the time the deterioration was observed. There must, as Mr. Burton accepts, be a cut off point. However, I consider that if that occurred during the morning of 28th November it is likely that the operation would have been carried out the same day.  
Issue 3: What recovery would the claimant have made? 
119.	The final issue for consideration is what recovery the claimant would have made had he undergone an operation prior to the further deterioration in his neurological condition which occurred between 22.05 on 28th November and 00.30 on 29th November.
120.	This was an issue on which there was very little evidence other than what actually occurred. The four experts were asked to address in their joint meeting a series of questions on this aspect of the case. They pointed out that none of them had had the opportunity either to take a history from the claimant or to examine him. They agreed, as a general principle, that the most likely outcome from surgery was to stabilize the claimant’s neurological condition at the level that existed at the time surgery was performed. However, they added that if, as a matter of fact, he did improve significantly following surgery then this would cause them to alter that opinion. On the basis that the claimant would in any event have suffered some additional spinal cord injury, none of the experts believed that the claimant would have been restored to the same condition that existed prior to the fall. None of the experts considered that his condition would have been worse than a Frankel grade C. None of the experts believed that he would have achieved better than a mid-Frankel grade D. In the opinion of Mr. Macfarlane and Mr. O’Dowd he would not have been better than a poor Frankel grade D.
121.	I raised with counsel during the course of argument whether it was appropriate for me to attempt to come to any conclusions on this point given the limited evidence available. Both sides, while acknowledging the paucity of evidence, urged me to come to a conclusion on the available material if I felt able to do so.
122.	It is convenient to start by considering what actually occurred. Mr. Harding, the surgeon who carried out the operation at Frenchay, made a record of the claimant’s condition prior to the operation. This records very low motor power in the legs at the level of a poor Frankel grade C. The report of Mr. Gardner on the condition of the claimant in April 2011 states that he has developed an incomplete Frankel grade C paraparesis at the T 12 level. Mr. Gardner concluded that whereas following his infective spinal cord injury in 2002 he recovered to become an average to good Frankel D paraparetic, he is now an average Frankel C paraparetic. A further report by Mr. Gardner records that his muscle power grades are 1 to 3 on both sides, less strong on the left than on the right. On this basis the claimant has improved since the operation from a poor Frankel grade C to an average Frankel grade C.
123.	Mr. Todd refers to the fact of his improvement from his condition immediately prior to the operation. In particular he draws attention to the claimant’s ability to stand in a frame, an outcome that he would not have predicted. He considers this to be a poor Frankel grade D. This leads him to the conclusion that if he had undergone an operation when his condition was still in the condition recorded by the Registrar on the evening of 28th November he would have recovered to the level of an average Frankel grade D.
124.	Mr. Wilson-MacDonald considered that the claimant would be in a better condition now if he had been operated on in time.  In his opinion the claimant is now a poor Frankel grade D. He considers that an ability to stand in a frame is a good Frankel grade C. In his view, there has been a recovery, “a substantial improvement in his motor power despite the severity of his condition before the operation.” In Mr. Wilson-Macdonald’s opinion, if he had had an operation before the catastrophic decline on the early morning of 29th November i.e. when he was 3 and 4, at worst he would have maintained that and might have improved.  As a result, he would have been able to walk (although not far) and would not be incontinent.  In his view he would have recovered to the level of a mid Frankel grade D.
125.	Mr. Macfarlane considered that if the claimant had undergone an operation on 28th November he would have recovered to a poor Frankel grade D and not an average Frankel grade D. In coming to this conclusion he attaches great weight to the facts that the Claimant had undergone a previous spinal operation, that he suffered from ankylosing spondylitis and that he was of advanced years. In his view someone who has suffered a second spinal insult is unlikely to do well. He considered the level of recovery identified by Mr. Gardner to be no more than modest. Accordingly the claimant was unlikely to have done better than a poor Frankel grade D. Mr. Macfarlane considered that the claimant would, on the balance of probabilities, have been continent but largely wheelchair-bound although probably able to walk small distances with the aid of a wheeled Zimmer frame.
126.	I note the descriptions by Mr. Wilson-MacDonald and Mr. Macfarlane of the levels which would have been attained had the operation been carried out in time. Both agree that the claimant would be continent. Mr. Wilson-Macdonald considers that the claimant would be able to walk but not far; Mr. Macfarlane considers that he would be wheelchair-bound but able to walk small distances with the aid of a wheeled Zimmer frame. It may be that there is not a great deal of ground between them.
127.	In terms of the applicable grades, the claimant’s condition immediately before he was assaulted was average to good Frankel grade D, according to Mr. Gardner. His condition on the evening of 28th November 2005 when seen by the Registrar was approximately a poor Frankel grade D. By the time the operation was, in fact, carried out he had become a poor Frankel grade C.  According to Mr. Gardner he recovered to an average Frankel grade C.  According to Mr. Todd and Mr. Wilson-MacDonald he did rather better than that, recovering to a poor Frankel grade D.  In reality the claimant achieved a better outcome than simply preserving what function he had pre-operatively. In the light of that recovery, I consider on balance of probabilities that, had he undergone the operation while still at the level of a poor Frankel grade D, he would not merely have retained that level but that he would have improved to an average Frankel grade D.