Case No:2BM90079
Neutral Citation Number: [2015] EWHC 848 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY

BIRMINGHAM CIVIL JUSTICE CENTRE
33 BULL STREET
BIRMINGHAM B4 6DS

Date: 31st March 2015 

Before :

HIS HONOUR JUDGE MCKENNA

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Between :

	Mrs Heather Elizabeth Tait	Claimant	
	- and -		
	Gloucestershire Hospitals NHS Foundation Trust	Defendant	

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Edward Bishop QC Counsel for the Claimant instructed by Shoosmiths Access Legal Solicitors
Robert Seabrook QC Counsel for the Defendant instructed by DAC Beachcroft LLP Solicitors

Hearing dates: 25th, 29th and 30th September, 1st and 2nd October, 2014
and 23rd February 2015

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JUDGMENT
His Honour Judge McKenna    : 
Introduction
1.	In this action, the Claimant, Mrs Heather Elizabeth Tait, whose date of birth is 22nd February 1981 and who is therefore now 34 years of age (28 at the time of the events with which this claim is concerned) seeks damages from the Defendant, the Gloucestershire Hospitals NHS Foundation Trust, in respect of injuries caused as a result of negligently delayed spinal surgery which eventually took place in the early hours of 8th July 2009.
2.	Judgment was entered for damages to be assessed on 27th November 2012 and this Court is therefore only concerned with the quantification of those damages.
Background
3.	The Claimant is married and has three children: Joshua whose date of birth is 29.9.05, James, whose date of birth is 9.3.07 and Lily whose date of birth is 17.5.13.
4.	The Claimant and her husband met in the late 1990s when they were both working in media related jobs, she as a lighting technician and he as a conference organiser. After various jobs in the television and theatre world, the Claimant and her husband, Russell, worked together from about 2001 onwards as partners, organising and managing conferences for companies.
5.	In 2003 they incorporated their conference organising business as Crystal Clear Productions Limited (“CCP”) with profits and drawings being shared equally. 
6.	Whilst still working for CCP, the Claimant started up a photographic business in March 2007, Heather Tait Photography (“HTP”) initially photographing toddler groups and nurseries and becoming the main photographer for a local magazine “Family Time.” The income from this business supplemented the family income, but as the photographic business developed, the Claimant did less for CCP.
7.	The Claimant suffered from low back pain from about 2007 onwards as is apparent from, for example, the entries in her medical records for the 12th February 2007 at page 1/143, 16th February 2010 at 3/442 and 31st March 2010 at 3/456 and sought regular treatment from a chiropractor.
8.	On 5th July 2009, whilst staying with her parents-in-law, the Claimant suffered an acute episode of severe low back pain and was taken by ambulance to the Cheltenham General Hospital.  Despite suspicions on the part of various clinicians that she might have nerve root compression caused by disc prolapse, and a plan that she should have an MRI scan, the Claimant was in fact discharged on 6th July 2009 without an MRI scan having taken place and she returned to her home in Sutton Coldfield.
9.	Her condition deteriorated over night and the following morning she called a GP by whom she was sent to Good Hope Hospital in Sutton Coldfield where she was admitted. It was suspected that she had cauda equina syndrome. An MRI scan revealed a massive prolapsed disc at L5/S1.  The Claimant then underwent emergency spinal decompression surgery at the Queen Elizabeth Hospital in Birmingham in the early hours of the 8th July 2009.
10.	It is the delay in diagnosis and treatment of the Claimant’s prolapsed disc that has caused the severe injuries with which this court is concerned.
11.	The Defendant has admitted that the Claimant should have had an MRI scan at the Cheltenham General Hospital and that surgery should have been performed on 6th July 2009 and there is agreed evidence  from the spinal surgeons (2/408) that if the Claimant had had surgery on that date then she would not have gone on to develop the severe cauda equina syndrome from which she now suffers but would  have had :-
		(1)	some mild bowel and bladder symptoms that would not have			impeded her ability to work and live a relatively normal life;
		(2)	some residual disturbance of sensation in the perineum, but not 		the severe loss of sensation she currently has; and
		(3)	mechanical back pain caused by degenerative disc disease at 			least at the same level as she had prior to her suffering her cauda 			equina injury and some residual weakness in the left leg which would 		have prevented her doing heavy lifting and heavy manual work. It 			would not, however, have stopped her pursuing a career in				photography or event management and / or organisation.
12.	It is common ground that the Claimant now has cauda equina syndrome, is doubly incontinent, has suffered a loss of sexual sensation and some psychiatric damage and some additional leg weakness and pain beyond that which she would have experienced in any event, the exact extent of which however is not agreed.
13.	A significant issue between the parties is whether the back pain of which the Claimant complains is mechanical back pain consequent on degenerative disease or neuropathic pain consequent upon the delayed surgery.  This issue is important both because, to the extent that the Claimant’s physical limitations other than those attributable to her double incontinence are attributable to mechanical degenerative disease, they are not consequent upon any breach of duty on the Defendant’s behalf and so do not sound in damages and so her claim, for example, for domestic assistance and equipment would be reduced, and because of the Defendant’s reliance on the issue to suggest that the Claimant’s claim more generally has changed over time and or has been significantly exaggerated.
14.	An allied issue is the extent to which the Claimant’s life and career would have been impeded by the mechanical back pain that she would have continued to suffer from even if the surgery had been performed when it should have been since, as I have already recorded, it is common ground that even if the surgery had been timely, the Claimant would have suffered some mechanical back pain and leg weakness which would have affected her ability to perform heavy manual tasks.
15.	There is a useful summary of the financial consequences of the parties respective positions at 1/76 albeit that during his opening, leading counsel for the Claimant conceded that some downward revision was called for and, in the event, as it seems to me, the financial consequences of the neuropathic pain issue, if I can so describe it, are not so significant as at first appears. It can be seen that a further significant issue between the parties is loss of earnings, both past and, more particularly, future since, whilst the Claimant’s actual current and future earning capacity has been agreed, there is a substantial dispute as to the question of how, but for the negligently incurred injuries, the Claimant’s career as a photographer would have progressed.
16.	In the circumstances, it seems sensible to deal with the issues raised in this claim in the following order:-
	(1)	Does the Claimant suffer from neuropathic pain and if so to what 			extent?
	(2)	How would the Claimant’s life and career have been impeded by the 		mechanical back pain that she would have continued to suffer from 		even if the surgery had been performed earlier?
	(3)	How would the Claimant’s career have progressed and what would she 		have earned but for the injury caused by the negligently delayed 			surgery?
	(4)	In the light of the above, what are the financial consequences in terms 		of the quantification of the claim?
Evidence
17.	The Court has heard evidence from the Claimant herself and from the 	following witnesses whose evidence was principally concerned with the 	question of the 	Claimant’s likely career progression as a photographer:-
	Phillip Bray
	Joanna Buick
	Nicola Clement
	Jonathan Harrison
	Nicola Gough
	Lisa-Joy Peake
	Katherine Pearce
	Julia Robinson
	Helen Roscoe
	Catherine Sealy
	Glenn Taylor
	Nathan Tromans
	Katherine Winner
18.	So far as expert evidence is concerned the Court has read reports from the 	following experts whose evidence was agreed and who therefore were not 	required to give oral evidence:- 
		Psychiatric Experts
		Dr Trevor Turner for the Claimant
		Dr Paul Dedman for the Defendant
		Colorectal Experts
		Miss Carolynne Vaizey for the Claimant and
		Professor Scholefield for the Defendant
		Urological Experts
		Mr Julian Shah for the Claimant and
		Mr Jonathan Ramsey for the Defendant.
19.	In addition, oral evidence was heard from spinal experts; Mr James Wilson-	MacDonald, Consultant Orthopaedic Surgeon for the Claimant and Mr. Paul 	Byrne Consultant Neurosurgeon for the Defendant; from care and 	occupational therapy experts Ms Emma Way (formerly Cullen) for the 	Claimant and Mr Albert Pace for the Defendant; from employment experts 	Mr Keith Carter for the Claimant and Mrs Mary Groves for the Defendant 	and from accommodation experts Mr. Cumbers on behalf of the Claimant 	and Ms Jane Bowden for the Defendant, all of whom have, of course, 	produced written reports and held joint meetings with a view to narrowing 	issues.
20.	There are a number of helpful summaries of the various symptoms suffered 	by the Claimant in the trial bundle both in the various witness statements 	prepared by the Claimant herself and in the reports of the various medico-	legal experts instructed by the parties.  A particularly helpful description is 	to be found in the Condition and Prognosis Report of Miss Carolynne Vaizey 	dated 22 January 2013 at P2/496 as follows:
	“BOWELS
	Mrs Tait described her bowls as “vile”.  Prior to her cauda equina she said 	she passed a stool once a day and never thought about her bowels.  Now 	she either has diarrhoea with incontinence or she has to digitate to pull her 	stools out.
	Before she was pregnant she was, on advice, taking Picolax once a week.  	This gave her loose stools and leakage for the following 48 hours.  Enemas 	make her faint.  She now takes Senna Max Strength which is not very 	effective and she said she suffers with stomach cramps which makes her 	anxious as she does not know what they are for (constipated, diarrhoea or 	pregnancy related.)  It takes quite a while to work and when it does it often 	comes as hard stools to begin with which are difficult to pass so she has to 	manually evacuate these and then she gets quite bad diarrhoea for anything 	up to several days after.  Because of this she has not been using it that 	often and has left up to two weeks in-between using it as it is just so 	uncomfortable and awkward to take.
	Several things can cause Mrs Tait to leak – it can be changing the bed, 	putting the children’s shoes on to go to school, squatting down to empty the 	washing machine or just getting in the car.  She said she never knows when 	the leakage is coming and doesn’t know it is happening.  Sometimes she 	does not know it is happened until she can smell it or feel it on the inside of 	her leg.  Mrs Tait recently had a massage and this made her to empty her 	bowels – she was mortified.  The leakage can also happen during 	intercourse so she said she tends to put her hand down at the anus as 	warning that something may have happened.  She said she is constantly 	panicking during sex.  The leakage also takes place at night.  She also leaks 	on coughing and sneezing.
	Mrs Tait only knows that she has leaked when she feels stool dripping down 	her legs or smells faeces.
	If she has a bout of diarrhoea she is totally housebound.  This happened 	recently when the boys caught a vomiting and diarrhoea infection.  The 	Taits have toilets both upstairs and downstairs – Mrs Tait said she uses the 	one upstairs so she can use the shower afterwards.
	She said that she can leak at night so uses protective pads in bed and still 	sometimes uses the children’s bedtime pants to sleep in.  She said:
		“I don’t like Russell seeing my pad so will wear pyjamas and will often wake in 		the night to go to the toilet and change the pad.  I find I don’t sleep very well, 		and feel embarrassed if Russell touches me or if the children see I am wearing 		a pad.  I don’t like any of them knowing this.”
	Mrs Tait’s incontinence score is: 17/24
	The St Mark’s Score
	Never	Rarely	Sometimes	Weekly	Daily	
Incontinence for solid stool	0	1	2	3	4	
Incontinence for liquid stool	0	1	2	3	4	
Incontinence for gas	0	1	2	3	4	
Alteration in lifestyle	0	1	2	3	4	

	NO	YES	
Need to wear a pad or plug	0	2	
Taking constipating medicines	0	2	
Lack of ability to defer defaecation for 15 minutes	0	4	
	Never		No episodes in the past 4 weeks
	Rarely		1 episode in the past 4 weeks
	Sometimes		>1 episode in the past 4 weeks but< 1 a week
	Weekly		1 or more episodes a week but < 1 a day
	Daily			1 or more episodes a day
	Add one score from each row
	Minimum score =0 = perfect continence
	Maximum score =24 = totally incontinent
	Personal example problem:
	Mrs Tait has been asked about the missed appointments – she said she 	thought the physiotherapy department had the wrong address.
	BLADDER
	Mrs Tait has stress incontinence.  She said that she leaks on coughing and 	sneezing.  She did self-catherise but this led to recurrent urinary tract 	infections.  Now she guesses when her bladder is a bit full and then 	squeezes and pushes.  She does not think she empties fully.
	With the pregnancy she feels her bladder has been much harder to control 	and has started using the catheters again recently a few times a day as she 	has had some increased difficulty passing urine.  She is seeing someone in 	Urogynecology at the Womens Hospital to discuss this.
	WALKING
	Mrs Tait feels a weakness of her left leg when she walks any distance.  After 	about 100 metres she said that the leg seems to drag and she gets a limp.  	With the pregnancy she is also having issues with her left leg; it feels much 	weaker than normal and she has found that she cannot walk very far at all 	before she is struggling with her balance.  It still feels numb in the same 	way but bearing her weight seems to be a bigger problem.
	NUMBNESS
	Mrs Tait said that she has saddle numbness slight worse on the left than on 	the right.
	PAIN
	Mrs Tait has problems standing for any length of time and she is therefore 	unable to queue up for anything.
	She also has a pulling sensation which feels as if her organs are going to fall 	out of her back passage.  This puts her off walking even if she is having a 	good day.
	SEXUAL INTERCOURSE
	Mrs Tait and I had a very emotional discussion about sexual intercourse.  	She said she is unable to feel any sensation.  She has not been able to 	discuss her problems in full with her husband.  She said this was initially 	inadvertent but she now realises that she finds it easier to keep “a part of 	her feelings from him.” In reality she then said she knows he would be 	devastated if she said that she felt nothing every time they had sex.  I 	asked her if she would prefer that I did not include this part of our 	conversation in the report.  She said that she keeps much of her medico-	legal correspondence away from her husband.
	Mrs Tait described her previous sexual relationship with her husband –
	-sex was previously a major part of their relationship
	- she said their relationship was “tempestuous” with many arguments which 	were then resolved with passionate sex
	Mrs Tait said that she had initially thought that “other areas would 	compensate for her lack of genital sensation”.  This has not happened and 	she now feels that, to a degree there is no point in having intercourse.
	Additionally Mrs Tait has regular bladder leakage during intercourse.  She 	also has bowel leakage if she has taken Picolax within the previous 3 to 4 	days.  She had passed some loose stools during intercourse but has also at 	times passed a fully formed stool.  She then has to deal with the problem 	and her husband goes very quiet.
	She became very emotional and said that all of the male doctors she has 	seen have brushed her sexual problems off and have not had any 	understanding.
	Mrs Tait said that her lack of enjoyment of sexual intercourse has made her 	feel that her closeness with her husband has been jeopardised.  She has 	tried to make up for this in other ways.  Her need to have this baby may 	have been in part due to her feelings of inadequacy.”

21.	So far as the Claimant’s psychiatric injury is concerned, in their Joint 	Psychiatric Report 2/462 which followed a telephone discussion on the 4th 	April 	2014, Dr Turner and Dr Dedman agreed that in the aftermath of the 	index event of 2009 the Claimant developed psychiatric symptoms 	consistent 	with an adjustment disorder, as outlined in section F43.2 of the 	International Classification of Diseases (ICD-10) and that this consisted of 	predominantly depressive symptoms within the broader categorisation of 	Adjustment Disorders. 
22 	They also agreed that the consequences of the Claimant’s physical 	limitations that persist have been the development of a marked lack of 	social confidence, a degree of social withdrawal thereby, a psychological 	fixation (when going out) to have ready access to a toilet (because of fears 	of leakage), alterations in her working and social activities, ready 	tearfulness, and a reduced sense of her own competence. 
23 	They also agreed that the Claimant might develop psychological reactions 	from 	time to time secondary to her ongoing physical status and limitations 	(e.g. 	depressive feelings or anxiety attacks) and would be more vulnerable 	to any kind of any further injury to herself or her children but that her 	current psychological state was not such as, in itself, to impair her ability to 	work.
24.	Finally they also concluded that at present the Claimant’s mental state was 	not reflective of a significant psychological disorder although Dr Turner 	considered that her pattern of intermittent anxiety and depressive 	symptoms was not inconsistent with a Mixed Anxiety and Depressive 	Disorder F31.2 ICD-10, but fluctuated depending on her physical and social 	situation.
25.	There is a good deal of evidence from the parties’ respective spinal 	experts and that evidence has, as it were, developed over time.
26.	Mr Wilson-MacDonald for the Claimant in his Condition and Prognosis Report 	following an examination on 6 July 2012, 2/255, under the heading “Present 	Symptoms” records as follows
		“49. After the surgery initially she did not experience the back pain. 		However she has had pain now in the back and radiating to both hips, 		more on the left than on the right radiating down as far as the left 			knee.  Most days the pain scored 7-8 out of 10.  At worst 8 out of 10, 		at best 4 out of 10.  She cannot take strong painkillers because this 		makes her feel sluggish.  Her current medication includes Codeine and 		Nurofen.  She does not take sleeping tablets.  The pain tends to be 		worse at night and she wakes 3-4 times a night.  She is able to sleep 		for about 6 hours.
		50. She has a numb left leg and a numb left foot mainly in the great 		toe and the lateral three toes.  The sacral area is completely numb.  		She has numbness over the buttocks, worse on the left than the right.
		51.The left leg is weak. She limps and has a foot drop and can only 		walk a 100 yards.  She can only stop for two minutes.  She can only 		sit for 30 minutes and fidgets. She is better slouching on a soft chair 		than 	sitting on a hard chair.  She can manage a short flight of stairs.  		She does 	not wear any orthosis.”
27.	Later he continues as follows under the heading “Examination” 2/269.
		61. On examination she had complete perineal numbness. I did not do 		a rectal or vaginal examination but she tells she has no anal tone . (I 		gather a neurologist has carried out a rectal examination as part of 		one of the medico-legal examinations).  She had very markedly 			reduced sensation over the left posterior thigh and over the lateral 			and posterior aspect of the left lower leg.  She had similar but less 			marked numbness on the right.  In other words she had moderate 			sensory disturbance in L5 and severe sensory disturbance in S1-S4 		worse on the left than the right.  Sensation over the anterior thighs 		was normal.
		62.The right knee reflex was normal, the left reflex marginally 			reduced, the ankle reflexes absent.  There was no proprioception in 		the left foot.
		63.On assessment of motor power the right side was much better than 		the left all muscles groups were grade 4 plus in the right lower limb 		apart from hip extension, adduction and abduction which were grade 		4.  On the left she was much more weak. Gluteal muscles were grade 		2, abduction and adduction grade 3, quads grade 4, hamstrings grade 		3. Below the knee all muscle groups were grade2.
		64.On examination of the spine she could flex to touch toes, hyper 		extension was uncomfortable as was lateral flexion, there was a well 		healed 5 centimetres scar with tenderness at the lower end of the scar 		over the paraspinal region.”
28.	Mr Byrne for the Defendant in his Condition and Prognosis Report dated 23rd 	September 2013 following examination on 29th May 2012, 2/323, recorded 	as follows 	under the heading “Present Problems”
		“3.1 Mrs Tait told me that she has some back pain and stiffness with 		her low back which fluctuates but this has not been a major problem 		to her for some time and not really been very bad since December 			2011.
		3.2 She told me that she had pain in her left leg which she described 		as “shooting” into the left thigh.  The pain is worse on weight bearing.  		She says that she has no pain the right leg.  She did not describe the 		pain in the left leg as neuropathic pain, with no features of burning or 		use of words such as “unpleasant”.
		3.3 She told me she had weakness of the left leg. She told me she 			dragged her foot when she was walking. She said she didn’t like to 		weight bear on her left foot.  She said she did not feel stable and that 		when she walked she thought she was pulling to the left.  She told me 		she could not stand for a long time.  She cannot run. She is worse on 		uneven ground. She trips frequently.
		3.4 She told me that she had lost all feeling in the left leg apart from 		some preserved but reduced feeling in the left index toe.
		3.5 She told me that she had decreased sensation in all of her saddle 		area with numbness perianally and around the inner part of her 			buttocks and in her perineum extending up to her bikini line.  She told 		me that she had no sensation during sexual intercourse.”
29.	Under the heading “Examination” he recorded the following:-
		“4.2. On examination she appeared straight forward, she became 			clearly emotional on several occasions during the interview and on 			occasions cried when she talked about her present problems.
		4.3 Her gait was slightly slow and she appeared to be limping slightly 		on the left and at one stage held onto her husband for support.
		4.4 She had a well heeled mid line lumbar scar. She had modest			reduction in normal lumbar lordosis.  She was tender just touching the 		skin.  There were slight paravertebral muscle spasms. Lumbar spinal 		movements were reduced to about one third of normal in all directions 		limited by pain.
		4.5 Straight leg raised was 80% and the right with negative sciatic 		stretch test and 60% on the left with positive sciatic stretch test.
		4.6 She had reduced power of dorsiflexion and plantar flexion of the 		left big toe of 4/5 but otherwise normal power in the left limb and she 		was able to stand on her tip toes and on her heels.
		4.7 She had an absent left ankle reflex, reduced but reproducible right 		ankle reflex and in tact knee reflexes.  Plantar reflexes were.				downgoing.
		4.8 She had decreased sensation to pin prick and soft touch in all of 		the left leg compared with the right leg.  All of the left foot was very 		numb but there was some limited sensation to pin prick and soft touch 		in the left index toe.  Joint position sense was absent in the left big toe 		and apparently in the left ankle.
		4.9 She had decreased perianal sensation over the S2 to S5 				dermatomes. She had reduced anal tone and rectal examination and 		was unable to squeeze down.”
30.	Mr Byrne in his Opinion section concluded as follows:-
		“12.1 Mrs Tait clearly developed caudia equina syndrome in July 2009.
		12.2 Caudia equina syndrome is caused by compression of the 			lumbosacral nerve roots, the cauda equina, in the lumbosacral spinal 		canal and is usually caused by an acutely prolapsed lumbar disc.  Most 		lumbar discs, when they prolapse, move laterally within the spinal 			canal and compress one or more nerve roots but not all the cauda 			equina and sciatica, that is pain in the leg, develops.  Uncommonly a 		disc prolapse moves centrally within the spinal canal and then 			compresses multiple nerve roots causing bilateral sciatica, that is pain 		in both legs, and also causing compression of sacral nerves which 			supply the bladder and bowel causing loss of bladder and bowel 			function.  This is unfortunately what happened with Mrs Tait.
		12.4 Unfortunately Mrs Tait has been left with very unpleasant 			sequelae of cauda equina syndrome.
		12.5 Mrs Tait has low back pain and stiffness which fluctuates but this 		has not been a major problem to her for some time.
		12.6 Back pain and stiffness are likely to continue to be an 				intermittent problem but are not likely to worsen if she concentrates 		on posture and looking after her back.
		12.7 She has “shooting” into the left thigh, worse on weight bearing, 		without a description of typical neuropathic pain with no features such 		as burning sensation.  She said she has no pain in the right leg. She 		has lost all feeling in the left leg apart from the left index toe.
		12.8 She told me she had weakness of the left leg and dragged her 		foot which she thought she was pulling to the left and didn’t like to 		weight bear on her left foot.  She feels unstable, cannot stand for a 		long time and says she cannot run.
		12.9 Her pain and sensory loss and any weakness in her lower limb 		are likely to be permanent.  I would not expect these symptoms to 		worsen in the future.”

31.	In their first Joint Statement in April 2014 at 2/406, the experts agreed the 	back pain and sciatica “has not been influenced by any delay in dealing with 	the cauda equina compression but instead has occurred as a result of 	constitutional disc change (see answer to 1.4 at 2/408); that there was no 	indication 	that the Claimant was exaggerating her symptoms or effects on 	her (see answer to question 7 at 2/409;) and in respect of neuropathic 	pain:-
		“We note that this is Mrs Tait’s account of her symptoms which will be 		a factual matter for the Court but this appears to be what she has 			reported.  These symptoms are subjective so therefore are a matter to 		be determined as fact by the Court.  We would note, however, that 		neuropathetic pain is a common complication of cauda equina 			syndrome and so these symptoms are consistent with her developing 		a severe cauda equina syndrome.” 
	(Answer to 8.1 – 8.7 at 2/409).
32.	Finally, the experts accepted at 2/414 in answer to question 22 that the 	Claimant did have neuropathic pain.
33.	The issue was then revisited by Mr Byrne in his letter dated 17th June 2014 	(2/378) where at page 379 he said as follows:-
		“In my answer to question 22, my simple answer to “does the 			Claimant have neuropathic pain” of “yes” is misleading.  My answer is 		yes if the Court accepts the description of the pain at paragraph 8.1 in 		the Agenda, but my answer is no if the Court accepts the account 			given to me when I examined the Claimant in 2012.”

34.	In his Updated Neurosurgical Report on Condition and Prognosis dated 30th 	September 2014 at 2/381, prepared after an examination of the Claimant 	on 28th July 2014 and after reviewing her statements of 26th September 	2013 and of 19th June 2014 Mr. Byrne expressed the following in his opinion 	section:-
		“6.3 Her statement of 19th June 2014 has been helpful in delineating 		the different types of pain that she now describes.  Referring to her 		numbering; it is clear that “pain 2” is mechanical back pain; pain “4” is 		probably also a combination of referred pain from her back and 			possible radiculopathy as a result of degenerative disc disease;pains 		“1”,”3” and “5”are all consistent with neuropathic pain as a result of 		her cauda equina syndrome and both from reading her witness 			statements and talking to her it seems clear that these pains are the 		major problem in terms of pain now.
		6.4 When I saw Mrs Tait on 29th May 2012 she did not give me the 		history that she is now giving.  In addition I did not see such 				symptoms as she now describes in her medical records, with the 			medical records suggesting that she had problems as a result of 			mechanical pain from a constitutional degenerative disc disease.  Mrs 		Tait explained to me that she is now better at describing her 				symptoms.  On the balance of the history in 2012 I do not think there 		were significant symptoms of neuropathic pain, but there are 			symptoms now which are consistent with neuropathic pain.
		6.5 I do not think Mrs Tait will deteriorate in the future but additionally 		I do not think that she likely to improve now. Mechanical back pain is 		likely to stay as it is now and whilst it might limit her to some extent it 		does not seem that it will be what is restricting her in activities such 		as being able to work and in her domestic activities, which are limited 		because of her incontinence and to some extent neuropathic pain.”
35.	In their second Joint Report following a telephone discussion on the 14th 	August 2014 (2/418) Mr. Wilson-MacDonald and Mr. Byrne dealt with a 	number of questions as follows:-
	“1.	Does the Claimant have neuropathic back pain as a result of her 			severe Cauda Equina Syndrome?
		We agree that the Claimant did not report a history of neuropathic 			pain when she first came to see us; and the contemporaneous records 		do not contain reference to symptoms of neuropathic pain.  If the 			Court accepts her present description of her symptoms, however, then 		these are consistent with neuropathic pain as a result of her cauda 		equina syndrome.
	2.	If the Claimant has neuropathic back pain, what do her symptoms 			consist of?
		We agree she describes pain and discomfort between her buttocks, in 		her saddle area and in her hips, pains 1, 3 and 5 in the diagram 			attached to her witness statement of 19 June 2014 and these 			symptoms are consistent with neuropathic pain.
	3.	Does the Claimant have mechanical back pain?
		We agree yes.
	4.	If the Claimant has mechanical back pain, what do her symptoms 			consist of?
		We agree she describes back pain and shooting pain down her leg, 		pains 2 and 4 in the diagram attached to her witness statement of 19 		June 2014 and these symptoms are consistent with her constitutional 		degenerative disc disease.
	7.	Have the Claimant’s symptoms of back pain deteriorated since you 		last saw her in 2012?  If so, to what extent?
		We agree that her description of her symptoms has changed.  She 			now says that when referring to back pain she meant pain in the back 		but in addition she included what she now describes, such as pain in 		the perineal region, and what describes as feelings such as if she is 		sitting on “rocks” or as if “something is pulling out of me”.
	8.	Without her severe Cauda Equina Syndrome symptoms attributable to 		delayed surgery would her lumbar back pain limit the Claimant to the 		extent of preventing her from doing a)physical work, while allowing 		her to do reasonable lifting and physical activities and b)routine 			domestic work and activities (as to which please give examples)?
		We agree that she would be limited in heavy manual work and heavy 		domestic duties because of mechanical back pain irrespective of any 		delay in dealing with her cauda equina syndrome.
		In our previous Joint Statement we took the view that worsening back 		pain was mechanical in nature and would limit her in terms of needing 		assistance with heavy manual tasks, assistance with tasks that involve 		lifting and bending, assistance with completing tasks at low level, such 		as emptying a washing machine or unloading a dishwasher, need for 		gardening help and decorating help, and that there was a non-material 		contribution to these needs as a result of the cauda equina syndrome 		and any delay in its treatment.  If the Court accepts that the 				worsening symptoms she now complains of, with the description she 		gives now, however, then she has neuropathic pain and by her 			account mechanical back pain has not worsened, so her needs are due 		to the neuropathic pain.
	9.	Are the majority of symptoms of discomfort and pain she experiences 		now due to the Cauda Equina injury and nerve damage rather than 		the pre-existing musculoskeletal abnormalities in her lumbar spine?
		We agree that in our first Joint Statement we were of the opinion that 		her symptoms as reported to us and in the medical records, 				mechanical back pain, represented the majority of her pain and 			discomfort, and this was not due to cauda equina nerve damage, but if 		the Court accepts her current description of her symptoms then the 		majority of her symptoms of pain and discomfort are due to cauda 			equina nerve injury.”

36.	There is therefore a large measure of agreement between the spinal 	experts. Their starting point is that they believe what patients tell them and 	they accept that what the Claimant described latterly is not only consistent 	with neuropathic pain but is indeed a classic example of neuropathic pain 	but 	that this later description did not accord with what she had described 	during the preceding four year period and frankly they struggled to offer 	any 	explanation for the difference.  They do however accept that if this 	Court accepts the Claimant’s current description of her symptoms, then 	the 	majority of such symptoms of pain and discomfort are due to cauda 	quina injury.
The Claimant’s Evidence
37.	As is not unusual in such cases, the Claimant has, during the course of this 	claim, produced a number of witness statements dealing with aspects of her 	claim.  They are dated respectively,  18th April 2013 which deals with the 	cause of action (1/78,) 11th August 2012 which deals with the Claimant’s 	education and the  development of her photographic business and the 	effects of her condition on that business (1/88,) 18th April 2013 which, 	among other things, deals  in some detail with the consequences of the 	surgery in terms of how it has left the Claimant (1/100,) 26th September 	2013 which responds to various observations made by the Defendant’s care 	expert Mr Pace (1/127) and 19th June 2014 which deals specifically with the 	Claimant’s 	ongoing back pain (1/131).  In addition, during the course of the 	trial, an earlier draft of a statement which became the 18th April 2013 	statement was produced which was signed on 20th November 2009 (“the 	2009 statement”).
38.	It was the Claimant’s evidence that she was born on 22nd February 1981, 	got married on 25th June 2004 and has three children, Joshua Anthony born 	on 29th September 2005, James Michael (“Jamie”) born on 9th March 2007 	and Lily born on 17th May 2013. 
39.	So far as back pain is concerned she had been seeing a chiropractor since 	before the birth of her children.  She had always had what she described as 	a bit of a twinge in her lower back and when she was pregnant with Jamie 	she had had a lower limb loss of sensation.  She noticed a loss of power as 	well as sensation and couldn’t really feel the muscle.  Matters had improved 	after 	the birth although she still had a bit of a bad back and would go to the 	chiropractor from time to time. She described having back pain periodically 	but it was neither severe nor constant until shortly before the spinal surgery 	in July 2009.
40.	In her 2009 statement, at paragraph 5, she included a description of pain in 	similar terms to the way in which I have paraphrased her evidence above 	and continued as follows:
	“37.	I am perfectly fine doing day to day things about the house, getting 		myself up and so on.  My problems concern taking the children out, 		looking after them and carrying anything.
	38.	I can’t run or walk long distances as my left leg feels weak.  I have a 		slight loss of power in my left leg.  My right is ok. I am only aware of it 		when I have to apply pressure to my leg, for example on walking.
	39.	I think that presently as I try to do more I am becoming more aware 		of the limitations I have.  Control that I thought I had before now 			seems to have gone.
	40.	I have pain occasionally and then suddenly it will become 				overwhelming and knock me sideways.  Loss of feeling is the problem.  		The pain from my back is now not so bad.
	41.	By October it feels as though it is getting worse.  For 3 days a week I 		am horribly uncomfortable. I feel a pulling sensation when walking 			from the area where I have no sensation.  The lack of feeling makes 		me more aware of the area.  In everyday life you are not aware of 			having sensation in every part of your body all the time.  I am aware 		though continuously of not having sensation in my saddle area.  I am 		also reminded of the lack of sensation when for example I sit, lean 			against something or play with the kids.  It doesn’t feel natural.  	A 		massive part of me is missing.  It feels as though my insides are 			coming out from an intimate area.  In some ways it is like the feeling 		in your face after a local dental anaesthetic.  Having no feeling feels 		odd and uncomfortable.  I now can’t feel anything during intercourse.”

41.	In her statement of the 18th April 2013 (1/100) she describes the back pain 	as follows:
	“4.	If I had exerted myself the pain in my lower back would start to 			develop from an ache to severe pain. It became a hot searing pain 			which spread downwards to my coccyx, left hip and down my left leg 		and was accompanied by a feeling of numbness.  This pain and loss of 		sensation then would worsen to the extent that I would find it almost 		impossible to use my left leg at all and it would restrict my mobility.  		The pain would continue until I took codeine.  After a good night’s 			sleep it would feel a lot better the next day.  However on a couple of 		occasions the pain was so bad that I had to go to hospital and had a 		morphine injection, even before the pregnancy.  They did contemplate 		giving me oramorph for breakthrough pain but I wasn’t keen on this.
	5.	The back pain meant that I had and still have difficulty standing up 		straight.  I get a pulling sensation and it feels as though my internal 		organs are being pulled out between my legs.  As a result of this I			generally not to stand for even short periods of time and either perch 		or sit down.  I think this sensation is caused by weight bearing so I 		can still have it to some extent even if I am leaning on something.  I 		have had to adapt activities as a result of this. For example, when I go 		to pick up the children from school I wait until the very last minute to 		get out of the car.  I don’t stand around chatting in the playground like 		the other Mums because this would involve standing up for a few 			minutes.  Although I park in the disabled bay, by the time I walk from 		the car to pick up the children and then back to the car I was 			exhausted.
	7.	I also have strange sensations where there is a loss of feeling.  This 		happened prior to and during pregnancy.  It is hard to explain but 			feels like my bones are rubbing against my skin.  If I touch the area I 		can’t feel it, but I can feel internal sensations.  When I sit for a long 		time it feels like I am sitting on raw bone because I can’t feel the 			tissue in between.
	8.	I also have random itching sensations in the places which are numb.  I 		understand this is related to the nerve damage.  I find this peculiar 		because I can’t feel these areas but still have sensations.  I will try 		and scratch the itch but this doesn’t help either because I can’t feel 		the scratching.  I can’t do anything to alleviate these sensations.”

42.	In her statement of 19th June 2014 the Claimant elaborated on the nature 	and extent of her back pain.  This statement was prompted by service of the 	Defendant’s Counter Schedule which, whilst accepting that the Claimant 	would have had less weakness in her leg but for the surgery, asserted that 	she would have suffered the same degree of back pain, it being the 	Defendant’s case that the shooting pain down her left leg was not 	neuropathic pain consequent on the surgery but in large part referred pain 	from the Claimant’s lower back which she would have suffered from in any 	event.
43.	It was the Claimant’s evidence that until service of the Counter Schedule, 	she had not appreciated that there was a distinction between mechanical 	and neuropathic pain and she had, when referring to her back pain, used 	that expression as an umbrella term to include pain she said she 	experienced and the operation scar in her spine and the pain in her buttocks 	and around her coccyx and going down into her leg.
44.	At paragraph 3 she exhibited a description of all the pain sensations she 	was experiencing together with an explanatory diagram as follows:-
	“1.	Pain in between my buttocks where I am unable to feel the tissue 			around the area if touched.  This is around my Coccyx area.  This is 		where I feel the most uncomfortable all the time.  The sensation when 		sitting is like I am sat on a pile of rocks.  It feels almost as though 			something is pushing up into me.  I tend to shift my weight when 			possible to one side until that side feels numb and then shift over to 		my other side.  I feel most comfortable lying down on my side.  When 		standing it feels like something is pulling out of me with force and gets 		worse as I walk and continues until I stop and sit down and then after 		a short time is replaced by the other pain.  This pain often gets so bad 		that I fantasize about scratching it away with a spoon.  It feels like it 		should feel hot to touch.  I do not get pain relief from this pain with 		the Pain killers I have they tend to just make me feel a bit better 			about it.
	2.	Back Pain, around where my scar is.  It is tender to touch and aches 		most days and after long periods of heavy lifting and bending will hurt 		a lot more until very uncomfortable.  Not really any more painful than 		the Back ache I had for several months leading up to the operation, 		possibly better.  I will get stiff in this area.  The Pain here will be 			relieved with mild pain relief so no longer there.
	3.	Saddle area.  Similar to pain number 1. when sitting for long periods 		can feel like, when standing it feels like pulling.  Can hurt during 			intercourse.
	4.	Shooting pain down my leg.  Doesn’t happen too often, mainly in the 		night or after long periods of being still.  I generally will have a dull 		ache in this area as well as the back of my knee and gets worse when 		walking.  I often get a shooting pain in my back when I walk too much 		on my leg or stand with my weight on it.  There is a point on my left 		thigh that starts to hurt while sitting and seems to radiate outwards 		and will cause me to rub it now without thinking.
	5.	Hips. It can ache across my hips and down my bum and down to my 		legs.  Often in the evening and at night.  Will feel like they should feel 		hot to touch.
	In parenthesis, it is common ground that what is described at paragraphs 1, 	3 and 5 is neuropathic pain as appears from the Second Joint Report of the 	spinal surgeons at 2/418.
45.	At paragraph 7 of her statement the Claimant explained that immediately 	after the surgery, the mechanical back pain disappeared completely until 	about December 2009 when it came back and was exactly the same as it 	had been prior to the surgery, save that she did not have the “stuck” 	feeling. The mechanical back pain has remained the same ever since.

46.	The only other change in her symptoms was in September/October 2013 	when she started to notice heaviness in her right leg with stumbling and 	twitching in her right big toe.  This was, however, a short term problem and 	ceased shortly after she changed the side of the bed in which she slept 	which gave her more room in which to move around.

47.	The Claimant was cross examined in some detail as to the nature and 	extent of her symptoms by reference to a significant number of her medical 	records.  The import of the cross examination was to demonstrate that what 	she had been describing to the various doctors and other health care 	professionals was mechanical back pain consequent upon degenerative 	disease rather than neuropathic pain whereas it was the Claimant’s 	evidence that she had excruciating symptoms from the outset and that she 	had been regularly reporting the same to the various health care 	professionals with whom she came into contact.

48.	The Claimant places reliance on what she reported to her care expert, Ms 	Emma Way (formerly Cullen,) in an early draft of her Rehabilitation Cost 	Report, prepared following an assessment on 11th July 2012, which is dated 	22nd August 2012 and which included the following passages:-
“Pain:	Mrs Tait described various areas of pain:
Lower back
Mrs Tait informed me that she experiences a “constant ache” in her lower back which worsens throughout the day until by the evening “I could claw at my back with a spoon.  The pain is unbelievably vile”. This pain is exacerbated by sitting on a harder, level surface, completing tasks at a low level, such as emptying or loading the dishwasher, and walking, standing or sitting for any period of time. Lying on her side or sitting tilted to one side reduces the pain.  Mrs Tait described the relief she experiences when she is in a swimming pool. “I feel weightless. I am pain free”	
49.	In Ms Way’s 10th February 2014 Report (3/574) prepared following a 	telephone update on 7th February 2014, under the heading 	Physical/Psychological Restrictions, she reports as follows:
“Pain (updated):	Mrs Tait described various areas of pain:
Below the Coccyx
Mrs Tait informed me that she experiences a “constant burning or shooting” at the very base of her spine, between her buttocks which worsens throughout the day until by the evening “I could claw at my back with a spoon. The pain is unbelievably vile”.  Mrs Tait believes that this pain has increased over time and is all consuming. It is not alleviated with medication.
This pain is exacerbated by sitting on a harder, level surface, completing tasks at a low level, such as emptying or loading the dishwasher, and walking, standing or sitting for any period of time. Lying on her side or sitting tilted to one side reduces the pain.
Mrs Tait described the relief she experiences when she is in the swimming pool. “I feel weightless. I am pain free”….
Internally
Mrs Tait described a constant, painful sensation as if “a bolder or a rock” was being pulled out of her insides.  This pain has increased over time and can become excruciating.  For her final 3 months of pregnancy she stated that it felt like a “bowling ball” was being pulled out and that it was agony.”	
Does the Claimant suffer from neuropathic pain and , if so, to what extent?
50.	What is said on behalf of the Defendant is that neuropathic pain is constant 	the onset of which would have been within weeks or at worst a few months 	of the index event yet there is no reference to such symptoms in the 	medical records until January 2014. Furthermore, what those records 	contain is a clear and consistent picture of physical limitations accounted for 	by the Claimant’s continuing mechanical back pain and limitations of 	movement attributable to degenerative disease as identified in the reports 	of Mr. Wilson-MacDonald and Mr Byrne to which I have referred and which 	is echoed in the report of Ms Way and that this picture is consistent with 	what the Claimant is recorded as saying to her GPs and others in the 	medical records.
51.	In this regard the Defendant placed reliance on a number of references in 	the Claimant’s medical records as follows:-
	“15.4.10(3/444)- ongoing lower back pain – worse after going shooting
	9.6.11(3/481)- she notices an increase in lower back pain and weakness of 	left leg which she describes as lazy
	9.6.11(3/584)- severe left leg pain – resolved – continues to have dragging 	pain in her left leg walking – spasm in left leg.  Also dull ache in back, which 	can become severe at times.
	26.9.12(1/18@120)-Hamid QE2- occasional back pain- radiation into left 	leg- particularly after exertion.
	26.12.12(1/181@124)- West Midland rehabilitation – worried that she has 	back pain.
	4.4.13(1/181@131)- West Midlands- pain and altered sensation round her 	lower back – tolerates.
	20.9.13(1/181@138)- Spasms of discomforts – increased numbness.
	2.10.13(1/181@139)- Dr Saif-Stoke Mandeville- in addition left sciatic pain.
	7.10.13- following road accident.
	3/164-complaint of painful back due to recent RTA – increased lower back 	pain and right leg weakness.
	3/666- lower back pain – GP
	20.11.13(1/181@145)- Triage- thoracic pain
	(3/666)-acute back pain thoracic upper backache in midline between 	scapula
	44d- had twinges here before – fleeting pain down arms- tender over 	thoracic vertebrae.”

52.	Moreover it is said that the Claimant’s GP records and associated 	correspondence are particularly telling in that the Claimant was seeing her 	GPs regularly and it is simply not credible that they would not have noted 	the Claimant’s references to excruciating neuropathic symptoms which she 	maintains she had and described to them. Taken together the medical 	records are compelling and it is submitted that it is implausible to suggest 	that all the professionals concerned laboured under a misunderstanding or 	simply failed to record what the Claimant was saying to them.  For that to 	be right, they would have had to omit the detail of what was being said 	either because they did not appreciate what was said or because they 	simply did not want to record it or because, as other problems settled, a 	particular problem might have become more prominent.
53.	On behalf of the Claimant it was submitted that I should treat with great 	caution the allegation of exaggeration; an allegation of which the Claimant, 	it was said, did not have proper notice.  Such allegations are all too easy to 	make, as are assumptions about inconsistencies in medical records when 	the makers of the records are not called, the context in which they are 	made is not examined in detail and the notes themselves were made a long 	time ago.  By way of example, it was pointed out that Mr Wilson-MacDonald 	gave evidence that he thought he had erroneously assumed that the back 	pain he was told about was mechanical rather than neuropathic and it was 	submitted that others might have made similar assumptions.  Equally the 	symptoms described by Mr Wilson-MacDonald at paragraphs 49-51 in his 	Report at 2/255, to which I have referred above, were according to him, 	neuropathic symptoms.  There are other references in the material before 	the Court to neuropathic symptoms for example in the report of Mr Pace at 	3/656 and Miss Vaizey at 2/498 and 2/506.
54.	It is to be noted that the Defendant’s Counter Schedule, whilst calling into 	question the extent of attributable symptoms, did not assert that the 	Claimant was deliberately exaggerating her symptoms and the assertion of 	exaggeration, either conscious or unconscious, was not specifically pleaded. 	Nor was it supported by any evidence from the Defendant’s experts save in 	the sense that they acknowledged that what had been described in the early 	years did not accord with the Claimant’s later description of her symptoms.
55.	Thus, the Claimant, it was said, had no reason to suspect that this issue 	would be controversial until receipt of Mr Byrne’s first Report in October 	2013 yet, by then, she had reported some symptoms of neuropathic pain to 	a number of people including, as I have recorded, Ms Way and of course 	had prepared and signed her April 2013 statement as well as the 2009 	statement.
56.	Whilst Counsel for the Defendant sought to persuade me that the 	description in paragraphs 37-41 of the 2009 statement did not include 	symptoms of constant neuropathic pain of the type now described and that 	the description to which I have referred in the early version of Ms Way’s 	report was not descriptive of excruciating pain emanating between the 	buttocks, I accept the force of the submissions made on the Claimant’s 	behalf and I also take cognizance of the difficulties that the Claimant would 	have had in explaining and describing pain in an area which is numb as well 	as the Claimant’s own understandable reluctance to discuss symptoms 	relating to intimate areas of her body exemplified by her attitude to her 	husband in this regard and that plainly, over time, her focus would 	inevitably have changed.
57.	I note that the spinal surgeons have agreed that the Claimant gave no 	indication that she was exaggerating (2/409) and that neither expert had 	any difficulty in concluding that what she described in 2014 were classic 	symptoms of neuropathic pain and also that such pain was likely to occur 	with cauda equina syndrome and that the more severe the lesion, as here, 	the more likely it would be that neuropathic pain would occur.  It is also of 	significance that there are in fact a number of references to referrals to a 	pain clinic in the Claimant’s medical notes which would only be appropriate 	if neuropathic pain was being experienced as Mr. Byrne pointed out in his 	letter dated 23rd September 2013 (2/358).
58.	Moreover I have to ask myself whether the Claimant is someone who would 	seek to exaggerate her symptoms for profit.  My conclusion, having 	considered the totality of the evidence including her demeanour, is that she 	is not.  To the contrary, all the evidence suggests that she is a high achiever 	who has worked extremely hard throughout her life.  She left school at 	seventeen with 10 GCSEs to pursue a career in theatre lighting and media 	and she is, plainly, a capable, driven and ambitious woman, with proven 	business skills and is a talented photographer who has been the driving 	force behind the success of CCP, the turnover of which increased from 	£286,417 in 2002 to £602,645 in the 18 months to 31st March 2004 	(although that turnover subsequently decreased following the birth of her 	first child) as appears from the figures exhibited to the statement of 	Catherine Sealy at 2/200 at page 205.  If further evidence of her drive and 	ambition were required, it is to be found in the early success of the 	Claimant’s photographic business, HTP, set up in 2007 whilst she was still 	working for CCP and looking after two small children and which is again 	highlighted in the figures exhibited to Ms Sealy’s statement at page 208.
59.	In addition and notwithstanding the effect of the negligently delayed 	surgery, the Claimant 	managed to complete the first year of her Master’s 	Course at Birmingham City University and attempted to continue her 	photographic business. It is also to be noted that the Claimant has readily 	accepted that she had a residual earning capacity, notwithstanding the 	expert medical evidence that it would be unlikely that she would be able to 	return to a useful occupation.
60.	To my mind these are not the character traits or indeed the actions of a 	malingerer or someone who is out to exaggerate her claim for financial gain.  	This view is reinforced by the evidence from the various lay witnesses called 	on the Claimant’s behalf. Further if the Claimant were really attempting, 	deliberately, to exaggerate her symptoms of neuropathic pain, surely she 	would have given a history reflecting that neuropathic pain to the medico-	legal experts when first examined and, am I really to conclude that she has 	actively sought to research typical examples of neuropathic symptoms and 	adopted them as her own?
61.	On the balance of probabilities, therefore, I conclude that the Claimant has 	suffered and continues to suffer from neuropathic pain in the way she 	described in her witness statement of 19th June 2014 and that such 	symptoms are attributable to the negligently delayed surgery.
How would the Claimant’s life and career have been impeded by the mechanical back pain that she would have continued to suffer from even if the surgery had been performed earlier?
62.	I now turn to the second main issue of the nature and extent of the 	mechanical back pain which can be dealt with quite shortly.  I have already 	referred to the physical limitations identified by the experts. It has been 	conceded on behalf of the Claimant that she would have required some 	domestic assistance and some assistance at work and that there would be 	some activities of a heavy nature which would have been beyond her.
63.	As it seems to me, the starting point for consideration of the issue of what 	the Claimant could, but for the negligently delayed surgery, do is to be 	found in the evidence of what she was in fact doing prior to the index event 	to which I have already referred in this judgment.  In short, she was looking 	after her family undertaking housework and working for CCP whilst building 	a photographic business from scratch.
64.	I accept the submissions made on the Claimant’s behalf in this regard and 	conclude, on the balance of probabilities, that whilst the Claimant would 	have had to avoid heavy lifting and heavy manual work, she would have 	been able to carry on with the vast majority of her activities both domestic 	and work related notwithstanding her mechanical back pain.
How would the Claimant’s career have progressed and what would she have earned but for the injury caused by the negligently delayed surgery?
65.	The Court has heard a great deal of evidence from the Claimant herself and 	from a number of lay witnesses as to the Claimant’s work history, her 	character, 	drive and talent as a photographer and of her ambitions and 	motivation to make a success of a career as a photographer as well as from 	two employment experts. In addition the Court has had the opportunity of 	considering the Claimant’s portfolio of work and a number of editions of a 	magazine called “Family Time” of which the Claimant was a contributor.
66.	The Claimant’s aspirations as a photographer were to build up to earnings of 	at least £50,000 - £60,000 net. If she had to go back to working in the 	conferencing field she estimated that her earnings would be in the region of 	£40,000-£50,000. It was her evidence that if she were to have been 	unsuccessful in her photographic business that is what she would have 	done, or alternatively she would have gone into logistics or event 	management.
67.	It is common ground that the Claimant is a talented photographer and the 	lay evidence is littered with testimonials from various clients, all of whom 	speak of her talent and their willingness to recommend the Claimant to 	others.  She plainly has energy, enthusiasm, drive, ambition and talent as 	well as being good with people and possesses acute customer service skills 	and has developed a good reputation.  Moreover she had plainly done 	exceptionally well in her first full year of trading, particularly having regard 	to the family commitments and her health issues.  Her personal tutor on the 	Masters Course at Birmingham City University, Mr Tromans, commented 	that the Claimant was different to other students because she already had a 	commercial practice and was already a competent photographer. She 	already had a client base and was attempting to broaden her horizons. She 	was efficient and competent and with a track record of delivering results 	which in was what clients wanted.
68.	Glen Taylor, who had over 30 years of experience of photography and 	videography, was very impressed with the Claimant’s work which he 	considered was exceptional, whilst Helen Roscoe, a freelance photographer, 	was particularly complimentary about the Claimant’s family photography 	which she described as being fantastic such that she had recommended her 	to a number of people for weddings and family portraits.
69.	Nicola Clement a Marketing Manager for a partnership called Elysia which is 	the UK Distributor of Dr Hauschka skin care products gave evidence to the 	effect that 	her organisation had used the Claimant for staff portraits and to 	take pictures of models at a Dr Hauschka casting session.  She felt that the 	Claimant’s photographs were of commercial quality and impressive, that she 	had a great eye for a picture and also a way with people.  She was good at 	catching people in photographs and making them look their best.  She also 	had a commercial edge, lacking in other photographers. She felt that, had 	the Claimant continued working, her business would have continued to 	thrive, not only as a result of a steady stream of income from portrait work, 	but also as a result of her having developed relationships with magazines 	and having developed her reputation as a creative, yet commercially 	minded, photographer.  She had no doubt but that the Claimant would have 	been 	successful. To my mind, and on the balance of probabilities, but for 	the negligently performed surgery the Claimant would have made a success 	of HTP.
70.	The lay witnesses also gave some evidence as to likely earnings so that, for 	example, Mr Taylor suggested figures of £350 - £450 per day and that an 	adequate photographer could probably earn between £45,000-£50,000 per 	annum gross although he has known other photographers that have earned 	substantial six figure sums .  Miss Clement suggested a going rate of £400-	£500 per day with a maximum for a local photographer of £600 per day 	whilst Miss Roscoe suggested that she was charging £1700 for two 	photographers for weddings and that if she was on her own she would 	charge £1200 per day with the going rate for weddings being between 	£1300 and £1800 with high end photography being over £2000 per day 	although she conceded that some photographers would charge less than 	£1000 although she wouldn’t put the Claimant in that bracket.
71.	It is plain from a consideration of the evidence of the respective 	employment experts that there is little solid evidence from external sources 	to assist the Court as to the Claimant’s likely income and her career 	prospects.  Indeed the experts agree as such at paragraph 9 of their Joint 	Statement at 3/851 and 852.  Ms Groves, for her part, identified an 	industry survey undertaken by the British Photographic Council whilst Mr 	Carter relied on the National Union of Journalists recommended minimum 	rates for photographers and a study conducted by the Association of 	Photographers.  	Both have commented on the lay evidence.
72.	Mr Carter came up with the following conclusions in his Report dated 27th 	September 2013 at 3/755:
		“Table 9
Summary of possible earnings	
Year	Gross Profit	Net Profit*	
2008/09	£17,184	£10,287	
2009/10	£27,926 - £29,281	£23,039 - £24,157	
2010/11	£38,668-£41,378	£31,901 - £34,137	
2011/12	£49,410 - £53,475	£40,763 - £44,117	
2012/13	£60,152 - £65,572	£49,625 - £54,097	
2013/14	£70,893 - £77,670	£58,487 - £64,078	
		*Assuming 17.5% deduction for expenses.”
73.	In arriving at his conclusions, Mr Carter relies heavily on the evidence of the 	lay witnesses and the figures are, in my judgment, highly speculative.
74.	Ms Groves, in her Report dated 23rd December 2013 which begins at 3/762 	at 3/775 under the heading “Summary and Conclusions” opines as follows:-
		“34	Mrs Tait had begun a business as a photographer when in March 			sustained cauda equina syndrome as a result of a delay in 				treatment at an NHS hospital in July 2009.
		35	Mrs Tait had very creative ideas and good contacts within the 			industry.  She comes across as a person who was dedicated to 			her work and had high standards.  She had potential to develop 			her business.
		36	Her accounts show that in the year preceding the injury she had 			received a profit of £10,287 after costs.  This equates to the 				median for surveyed female freelance photographers.  She had 			undertaken some unpaid shoots to promote herself which is 				common in the industry due to the large number of would-be 			photographers.
		37	In his report Mr Keith Carter has predicted rapid growth for the 			photographic business and earnings at the very highest end for 			photographers.  He has not provided any comment on the 				statistical likelihood of achieving very high earnings or the 				number of hours work necessary to achieve this.
		38	The physical strain of taking and editing photographs for long 			hours would need to be taken into account.  This is a medical 			issue in regard to Mrs Tait’s pre-existing spinal problems.
		39	Mrs Tait had two children at the time of the injury and she has 			had a third child this year.  It would be necessary to take into 			account the need for reliable childcare arrangements for a 				person working long and unpredictable hours as a high earning 			photographer.
		40	The following table shows the result of the British Photographic 			Council’s Industry Survey for Photographers 2010, relating to 			1,698 photographers:
			
Average mean freelance profit	£18,821	
19% of freelancers	£30,000+	
29% of freelancers	£1 - £10,000	
Median turnover/profit female photographers	£25,000/£10,000	
Median turnover/profit male photographers	£39,471/£15,000	
		41	The majority of photographers earn modest incomes and many 			supplement this with alternative work.  The extent to which Mrs 			Tait would have been able to succeed at the very top of the 				profession as indicated by Mr Carter will be a matter for the 				Court.”
75.	In my judgment, the extent to which the employment experts can assist the 	Court in this case is limited.  Photography is plainly an uncertain profession 	and earnings are erratic and often modest as is apparent from the British 	Photographic Council’s Industry Survey for Photographers 2010.  True it is 	that the Claimant has real talent but there are many talented photographers 	and the industry is very competitive.  On the other hand, the Claimant had 	clearly made a very good start to her photographic career as is apparent 	from the figures to which I have already referred and I remind myself of the 	Claimant’s contribution to the early success of CCP in terms of increased 	turnover and income as further evidence of the Claimant’s competence and 	her successful track record.  It is also fair to record, as counsel for the 	Claimant submits, that the agreed residual earning capacity is at a level 	higher than the average annual female income recorded in Ms Grove’s 	survey.  I have also taken into account the evidence from the various lay 	witnesses as to possible future earnings and their consistent evidence as to 	the Claimant’s talent, ability and commitment.
76.	However, taking all matters into account and doing the best I can, I 	conclude that the figure contended for by the Claimant is extremely 	optimistic whilst that 	contended for by the Defendant is in all probability 	unduly pessimistic. 
77.	I am urged by counsel for the Claimant to adopt a broad brush approach to 	the question of the calculation of future loss of income and to fix a net 	overall figure.  I accept the thrust of that submission as to the appropriate 	approach in the circumstances of this case.
78.	It is common ground that the Claimant would have income from three 	sources, CCP salary, CCP dividend and HTP.  For the purposes of the 	calculation of past and future loss of earnings, the parties have agreed a 	common approach to CCP salary and CCP dividend but in broad terms where 	they are at odds is as to the appropriate figure for earnings from HTP.
79.	To my mind, having regard to the totality of the evidence and bearing in 	mind the many and varied imponderables, I conclude that an appropriate 	net overall annual figure is £45,000 i.e. inclusive of CCP salary and dividend 	but net of child care.
Financial Consequences
80.	I turn now to a consideration of the various heads of loss by reference to 	the very helpful attachments to counsel for the Claimant’s written closing 	submissions and trust that counsel will be able to incorporate the following 	figures into the various attachments to arrive at the total figure for special 	damages
Past Loss of Earnings - (Attachment One)
81.	As it seems to me, in order to calculate past loss of earnings, the Court 	should adopt a straight line progression of the income of HTP from the 	figure of £10,287 in the year 2008/9 to £29,535 (net of child minding fees) 	by the date of trial. (£45,000 minus CPP salary and dividend).
Past Care – (Attachment Two)
82.	I can deal with this aspect shortly. The Claimant relies on the report of Ms 	Way whilst the Defendant relies on the report of Mr Pace. The differences 	between the parties are accounted for by the Defendant’s contention that 	the Claimant would have required assistance with childcare and housework 	in any event due to her mechanical back pain and a reduction in the hours 	for gratuitous care.  In the light of my conclusions as to the nature and 	extent of attributable neuropathic pain and the effect of mechanical back 	pain, the sum sought in attachment two in respect of cleaning and child 	care including the au pair are properly recoverable whilst I would reduce the 	sum claimed in respect of gratuitous care to 30 hours per week at £8 per 	hour discounted by 25% (namely £1207.80) preferring as I do the evidence 	of Mr Pace.
Past Equipment – (Attachment Three)
83.	In my judgment, save for those items to which I will refer specifically below, 	the Claimant is plainly entitled to recover the sums claimed in respect of 	past equipment, the Defendant’s opposition being based in large measure 	on the contention that the neuropathic pain is not attributable.
84.	It was conceded by counsel for the Claimant in closing argument that there 	is no medical evidence to support a claim for acupuncture and I would 	disallow this aspect of the claim.  Nor am I satisfied that the cost of beds 	and mattresses for Joshua and James are properly attributable.
85.	There remain however the issues as to the quantification of sums due in 	respect of incontinence products, additional bedding and leggings.  So far as 	incontinence pads are concerned, the Defendant relies on the evidence of 	Mr Pace whose suggested figures are based on those advised to him as 	having been incurred to date whilst Ms Way, for the Claimant, suggests a 	higher figure based on the cost of what she considers more appropriate and 	expensive products than those in fact used.  To my mind, the figures relied 	upon by Mr Pace are to be preferred since they compensate the Claimant for 	the actual costs expended.  So far as bedding and leggings are concerned, 	both experts agree the need but differ as to quantum.  I would adopt the 	itemised approach advocated by Ms Way.
Future Loss of Earnings
86.	I have already dealt with the question of future earnings generally.
87.	There is an issue between the parties as to the Claimant’s likely retirement 	date with the competing submissions being 68 on behalf of the Claimant 	and 65 for the Defendant.  The former being the official government 	retirement date and there appearing to me to be no good reason to depart 	from that date, I conclude that the appropriate date for calculation of loss is 	68.
88.	There remains however the claim for loss of a chance of higher earnings 	claimed in the sum of £164,876.20, adopting a calculation used in Langford 	– v – Hebran [2001] EWCA Civ 361.  In that case, the trial judge awarded 	damages for future loss of earnings based on basic income plus the lost 	chance of higher earnings calculated by reference to the percentage chance 	of attaining the higher level of success. The Claimant claims for a 50% 	chance adopting the mid point of the gross figure set out in Mr Carter’s 	report with appropriate deductions for childminding and tax.  In principle 	this approach seems to me to be appropriate save that it does not seem 	appropriate to include in this calculation any sum in respect of CCP salary or 	dividend since, in order to have any prospect of earning the higher 	photographic earnings figure, the Claimant would have had to devote the 	whole of her time and effort to that aspect of the business.  I would 	therefore award such sum as is calculated using the methodology set out in 	the Schedule of Loss save for the exclusion of CCP salary and dividend. 	Adopting that methodology, the relevant figure for highest achievable net 	annual income excluding CCP salary as set out in the Schedule of Loss is 	just under £85,000 which the Claimant has adjusted downwards in 	submissions to £72,080. Adopting a multiplier to age 68 of 19.3, the 	relevant figure, before deduction of the base level of future net income, is 	£1,391,260 and net of that base level is therefore £522,760. Given that 	what is being considered is, as I have found, a 50% loss of a chance of 	earning that level of income the relevant figure under this head of loss is 	£261,380 
Future Care and Case Management – (Attachment Five)
89.	So far as future care is concerned, I would adopt the child care calculations 	put forward by counsel for the Claimant in attachment five to the written 	closing submissions since I can see no proper basis for reducing child care 	costs when Lily attains 3 as opposed to 5 years of age and I accept the 	argument put forward by Ms Way that until Lily attains the age of 5 there 	should be a full time Nanny.
90.	Once Lily has attained the age of 5, I accept the recommendation of Ms Way 	that two hours per day is required for child care but only one hour for 	domestic support at £10 per hour, the former only being until Lily attains 	the age of, say, 14, adopting the substance of Mr Pace’s arguments on this 	aspect.  Thereafter, as it seems to me, the requirement for child care will 	end.  I can see no justification for the appointment of a personal assistant in 	the circumstances of this case.
91.	So far as case management is concerned, I understand that past case 	management is agreed at £5701.06.
92.	So far as future case management is concerned the Claimant seeks case 	management for life.  In my judgment, there is no justification for any such 	award save in respect of the next three years until May 2018 to enable 	implementation of the various recommendations which have been made to 	take place and in particular to take the Claimant through any proposed 	move to a new home, accepting as I do the evidence of Mr Pace on this 	issue.  The Claimant is an intelligent and articulate woman who is, in my 	judgment, more than capable of finding the necessary information to assist 	her.  I would therefore allow a total of 100 hours at £98 per hour plus travel 	and mileage under this head.
Motorhome
93.	The Claimant pursues a claim for the hire of a motorhome in the sum of 	£847.  To my mind that claim is unanswerable.
Future OT related claims – (Attachment Six)
94.	As I understand it items 1-3 inclusive in attachment six are agreed.  As to 	item 4, breakdown cover, to my mind the Claimant would have had to have 	such cover in any event and the item is not properly recoverable in whole or 	in part.
95.	I understand that item 5 is not pursued.
96.	So far as showering and assorted items are concerned (item 6) need is 	agreed but cost is in issue.  I accept the evidence of Mr Pace that there is 	no justification for two additional shower facilities in addition to whatever 	bathroom facilities a family of five would have had in any event.  I would 	allow £2,500 for one shower with a 10 year replacement and £345 for a 	shower seat with 5 year replacement and grab rails at £100 and 10 year 	replacement together with a sum of £1,000 for installation.
97.	So far as the swim spa is concerned (item 7), I am not persuaded that the 	medical evidence justifies this claim, the high point of which would appear 	to be Mr Byrne’s comment at 2/358 that a swim spa “would be to help with 	back pain”.  The inclusion of such an item is, therefore, in my judgment, 	neither reasonable nor proportionate, but I will include an element in the 	figure for general damages to reflect loss of amenity in this regard that, 	being the Claimant’s alternative submission.
98.	So far as items 8, 10, 11, 12, 13 and 15 are concerned, they are 	recommended by Ms Way but opposed by Mr Pace on the basis that they 	would have been required in any event due to the Claimant’s pre-existing 	mechanical back pain.  In my judgment the need arises from neuropathic 	pain and or incontinence and they are therefore costs which are properly 	recoverable in the sums claimed.
99.	I understand that items 9, 14 and 18 are agreed.
100.	I turn now to occupational therapy (item 16) and physiotherapy (item 17).  	So far as the former is concerned, it does not seem to me that there is any 	established need for occupational therapy intervention at all.  I have no 	doubt that the Claimant is more than capable of researching and acquiring 	for herself suitable equipment and I am wholly unimpressed with Ms Way’s 	argument to the contrary (3/719).  So far as the latter is concerned, it is 	fair to say that there is no expert evidence to support such a claim but it 	was submitted on behalf of the Claimant that it was doubtful whether the 	obtaining of such a report would have been proportionate in the 	circumstances of this case.  Having regard to the totality of the medical and 	other evidence it is probable that the Claimant would benefit from the 	provision of physiotherapy and the extent and costings for such therapy 	suggested by Ms Way would appear to me to be reasonable (3/720).
101.	So far as those items in item 19 which are not agreed are concerned I 	conclude as follows:-
	Additional clothing and bedding
	Plainly a sum is justified. The question is what sum.  Doing the best I can in 	the light of the evidence of Ms Way and Mr Pace I would award £450 per 	annum
	Prescriptions
	I would allow £104 per annum to the age of 60.
	Incontinence products
	I would allow £600 per annum
	Acupuncture
	I accept the evidence of Mr Pace that to the extent that such an intervention 	is required, it is as a result of mechanical back pain and therefore not 	properly recoverable.
	My conclusions are the same so far as the claim for heat pads are 	concerned.
102.	So far as holidays are concerned (item 20), in the light of the concession 	made during the course of the trial that acquisition of a caravan for holidays 	is reasonable, I conclude both that the claim is justified in principle and that 	the various sums claimed are reasonable and proportionate.  So far as any 	deduction for the cost of holidays in any event is concerned, 	notwithstanding the evidence of the Claimant, I conclude that Mr Pace’s 	suggested figure of £1500 is, on the balance of probabilities, a more 	reasonable and accurate assessment.
103.	Turning now to heating and laundry, I understand that laundry at £2,131.01 	is agreed (see Defendant’s closing argument paragraph 51).  What is not 	clear to me is whether this agreement includes the cost of an additional 	washing machine, the need for which is agreed by the care experts.  If not 	covered, then I would allow £150 per annum under this head.
104.	So far as heating is concerned, the consensus of opinion of Ms Way and Mr 	Pace is that both whilst Lily is at home and after retirement, no additional 	heating costs will be incurred.  I accept the thrust of that evidence and 	would limit the claim to £250 per annum from the age of 37 to the age of 	60.
105.	So far as home maintenance and gardening are concerned, it is plain in my 	judgment on the evidence that the Claimant’s mechanical back pain would 	increasingly limit the Claimant’s ability to undertake these activities, which 	historically, I accept have been undertaken by the Claimant.  Doing the best 	I can I would award £1,000 per annum to the age of 60.
Accommodation – (Attachments Seven and Eight)
106.	The parties rely on the evidence of their respective experts, Mr Cumbers for 	the Claimant and Ms Bowden for the Defendant whose Reports are at 3/867 	and 3/924 and whose Joint Report is at 3/973.
107.	The main issue between the parties is whether or not the Claimant requires 	single level accommodation.  What is said on behalf of the Defendant is that 	the Claimant has been managing stairs for the past 5 years and in all the 	circumstances of the case it would be reasonable for the Court to conclude 	that accommodation which is predominantly at ground level but with 	possibly a spare room and bathroom at first floor level would not be 	unreasonable.
108.	Not surprisingly counsel for the Claimant submitted otherwise, reminding 	the Court that the Claimant has physical difficulty using stairs but more 	importantly can and does suffer episodes of incontinence when using stairs 	as a result of the effort expended.  Moreover it was submitted on behalf of 	the Claimant that Ms Bowden had agreed that if the Claimant was 	wheelchair bound she would recommend single level accommodation in 	order to promote and enhance, so far as possible, the user’s independence 	and it was suggested the same principle should apply here so that whilst it 	might be possible for the Claimant to go up and down the stairs, to do so 	was to condemn her both to the risk of incontinence, (i.e. the worry) and 	actual incontinence with the usual consequences.
109.	For my part I see the force in those submissions made on the Claimant’s 	behalf and I conclude on the balance of probabilities that single level 	accommodation is reasonably required in this case and approach this aspect 	of the claim on that basis.
110.	A further issue between the parties relates to the extent of the 	accommodation.  It is agreed between the experts that the Claimant’s 	current home provides approximately 131 square metres of 	accommodation. Mr Cumbers for his part suggests that a total of 154 square 	metres is needed whilst Ms Bowden considers 140 square metres to be 	adequate and reasonable.  On this issue I prefer the evidence of Ms Bowden 	having regard to the factual background to this case and in particular to the 	evidence as to the actual property that the Claimant and her husband 	have been renting since 2005.
111.	I turn now to the issue of the likely cost of acquisition of a single storey 	property.  As Counsel for the Defendant points out, Mr Cumbers, in his 	Report, includes properties priced significantly above others whilst the 	average price of two bungalows currently on the market or, at least, on the 	market when the various Reports were prepared is £549,975.00.  Ms 	Bowden’s original Report at 3/935 suggested £480,000.00 as reasonable 	purchase price.  This was revised in the Joint Statement at 3/974 to 	£539,955.00.  In my judgment, it is reasonable and proportionate to work 	with a figure of £540,000 as the basic 	purchase price of a single level 	property which would be suitable for the Claimant’s needs.
112.	There is also a significant dispute between the parties as to extensions and 	adaptations as appears from the Joint Statement at 3/977 onwards.  Having 	regard to my conclusions as to living space, I do not consider that any 	provision should be made for any extension.  Equally, having concluded that 	a swim spa is not justified on the evidence, there is no need for provision 	for an annexe to accommodate a swim spa.
113.	So far as a studio is concerned, the experts agree the likely cost.  The 	Defendant submits that the Claimant would be likely to have had a studio in 	any event but to the extent that this need may have been more extensive 	and/or urgent as a result of the negligently delayed surgery, it would be 	reasonable to allow 50% of the cost (with a 	corresponding 50% attribution 	of betterment in the Roberts-v-Johnson calculation) whilst the Claimant 	submits that the whole sum should be allowed on the basis that the studio 	would be necessary to generate the income from the photographic business.  	On this issue it seems to me that the Defendant’s argument is compelling 	and I would award 50% of the agreed cost of £75,994 namely £37,997.00 	with a corresponding 50% attribution of betterment.
114.	I turn now to the question of adaptations by reference to the Joint 	Statement at 3/971 and following.  To my mind Mr Cumbers has taken a 	grossly extravagant approach to this issue and I agree with the 	submission made on behalf of the Defendant that he has inflated the 	Claimant’s reasonable requirements which in my judgment has done the 	Claimant no favours.
115.	By way of example, the suggestion that a bulk storage room should be 	created at a cost of £2,180 and the suggested costings relating to intruder 	and fire detection equipment and heating installation and for possible 	adaptations to the garage are to my mind grossly excessive.  Moreover the 	case for £35000 of expenditure for torso level units in the kitchen and 	bedroom is simply not made out on the totality of the evidence. Ms Bowden 	has made allowance for additional work required to avoid bending due to 	incontinence and it has to be remembered that the Claimant would have 	had difficulties as a result of mechanical back pain and in so far as low 	cupboards and the like are concerned.  Moreover the suggestion that a 	property finder at a cost of £7,500 should be included frankly beggars 	belief.  I entirely agree with Ms Bowden that the Claimant and her husband 	are perfectly capable of choosing a family home without professional advice.
116.	To my mind, Ms Bowden has addressed the issue of what is reasonably 	required systematically and sensitively and where there is any disagreement 	between her and Mr Cumbers I prefer the evidence of Ms Bowden and would 	adopt her calculations save so far as the cost of torso level units are 	concerned when she has plainly not allowed for the effects of neuropathic 	pain.  Doing the best I can I would allow a figure of £21000.
117.	So far as increased running costs are concerned I would allow £375 per 	annum, being the mid point between the parties, and for heating £72 (being 	50% of £144 suggested by Ms Bowden in respect of the studio) and 	otherwise accept the figures put forward by Ms Bowden.
Future Medical Expenses - -(Attachment Nine)
118.	I understand that so far as future medical expenses (attachment nine) are 	concerned, the Defendant agrees £3,000 in respect of cognitive behaviour 	therapy and a further sum of £21,242.65 (i.e. the sums claimed in 	attachment nine less the cost of the banding operation (£2,029.98)). Those 	figures seem to me to be reasonable and proportionate and I would adopt 	them.
General Damages
119.	I turn now to the question of general damages.  I was referred to the JSB 	table 6 (i) which gives a top level award for total loss of natural bowel 	function causing faecal incontinence of £110,300 while section 6 (j) gives an 	award of up to £103,250 for a complete loss of function and control of 	urinary incontinence.  In addition, the Claimant also suffers additional pain 	and leg weakness and neuropathic pain there is some psychiatric injury and 	there is of course also the sexual dysfunction.
120.	It was submitted on the Claimant’s behalf, and I accept, that the Claimant’s 	incontinence is likely to increase and it is to be noted the Claimant has a 	high incontinence score as appears in Miss Vaizey’s Report at 2/497 and it 	was the Claimant’s evidence, which I accept, that her entire day is 	dominated by her toileting needs and she relies entirely on incontinence 	pads, nappies and the like to manage that incontinence.
121.	I remind myself, however, that it is not appropriate simply to combine 	awards for bowel and bladder incontinence and that there has to be some 	reduction for overlap.  The respective parties’ contentions are perhaps not 	surprisingly not that far apart.  The Claimant contends for £140,000 whilst 	the Defendant contends for £120,000.  In support of the higher figure 	counsel for the Claimant referred me to the decision of Mr Justice Otton, as 	he then was, in Routledge-v-McKenzie referred to at F5/001 in Kemp and 	Kemp where, updated, an award of £117,050 for a cauda equina lesion 	affecting the spinal and nerve roots L5 and S1 to 5 was made.
122.	Taking into account the totality of the evidence and having regard to the 	JSB guidelines and the decision in Routledge-v-McKenzie,.I conclude that 	the appropriate figure by way of general damages to reflect the pain 	suffering and loss of amenity suffered by the Claimant as a result of the 	negligent delay in surgery is £140,000.  In coming to this conclusion I have 	also taken into account the fact that, as I indicated earlier in the judgment, 	there has been a loss of amenity in terms of swimming.
Conclusion
123.	I trust that I have dealt with all the issues on which the parties require a 	determination.  If there are any matters in dispute where, inadvertently, I 	have failed to make a ruling I should be grateful if the parties would alert 	me to the lacuna, providing a short skeleton argument setting out their 	respective positions on the outstanding matter(s), and I will then 	endeavour to incorporate my conclusions into a revised draft.
124.	Subject to that caveat, I hope that the parties will be able to agree the 	terms of an order that reflects the substance of this judgment.
125.	I would like to take this opportunity to thank both counsel for their 	invaluable assistance in this case and finally would like to apologise to the 	parties and, in particular, to the Claimant for the delay resulting from the 	unfortunate adjournment of the hearing of closing arguments.