Amputation Claims Revisited

One of the odd quirks of my practice in the catastrophic injury field is that I have carved out a particular speciality dealing with amputation claims. On the back of this, I was asked to lecture to PIBA on the topic in 2020 and then write an article for PI focus in 2021.

Those that have seen or read my musings on this subject matter in the past will know that I have long been of the view that amputation cases are routinely being undervalued and under-settled. There are a number of reasons for this, but in my opinion the most obvious ones are a failure to instruct the right experts and a failure to maximise some of the key claims such prosthetics and care. This trend then feeds into the valuations made by some insurers on such cases.

Fortunately, things seem to have been changing for the better over the last few years and the decision in Swift v Carpenter went some way to recalibrating expectations for claims of this type. Nevertheless, some element of hangover remains and with this in mind the recent decision of David Allan KC (sitting as a Deputy High Court Judge) in Riley v. Salford Royal NHS Foundation Trust [2022] EWHC 2417 should be welcomed.

The Facts

The Claimant, Mr Riley (aged 27 at trial), suffered serious injuries to his lower right leg in a motorcycle accident in July 2015. There was subsequently a negligent hospital delay in diagnosing a compartment syndrome that led to deterioration in the lower leg and a requirement for a below knee amputation. The NHS Trust concerned admitted that amputation would have been avoided if appropriate treatment had been provided. Although issues remained regarding the Claimant’s but for condition (i.e. the extent of recovery that would have been made but for the negligent treatment), the trial judge found that a good recovery would have been made within 12 months of the accident with minimal ongoing disability and pain.

The real focus of the trial related to quantum and a large number of issues / heads of loss remained in dispute. The outcome was that the Claimant was awarded a total of £4,676,442 in damages including £120,000 for PSLA, £769,100 for future loss of earnings, £980,557 for future care and case management, £737,466 for future prosthetics, £308,990 for future transport, £160,887 for future aids & equipment and £983,313 for future accommodation.

Points to Note

For those who are short of time or loathed to read the 26 pages of the judgment for themselves, I would offer the following takeaway points:

(i)        Expert Evidence

This was a case where the Claimant clearly benefitted from instructing the right experts, including an internationally renowned orthopaedic expert and very experienced experts in the fields of rehabilitation and prosthetics. The absence of evidence from a plastic surgeon is

perhaps surprising given the skin complications that the Claimant had evidently suffered from since the accident (in my experience it is not usual for a plastic surgeon to recommend regular rest periods without a prosthesis to account for such issues and this can impact on the level of support needs). However, this was obviously addressed to a certain extent in the rehabilitation evidence.

(ii)       Increasing Disability & Care

Both rehabilitation experts were largely in agreement when it came to increasing disability over time, with the Claimant’s SIGAM grading predicted to reduce from 55-60 years of age onwards. By the age of 80 both experts agreed that the Claimant would be SIGAM grade C or possible B and be heavily reliant on a wheelchair for all ambulation. For the last 2-3 years of life, it was agreed that the Claimant would need assistance with transfers (hence a need for full-time care). It was also agreed that there would be periods of 4-6 weeks every year throughout his life when the Claimant would be unable to use a prosthesis due to swelling or discomfort.

In my experience, these predictions are typical for a below knee amputee (see Swift as another example) and sound in significant awards for future care. In Riley, the Claimant recovered almost £600,000 for care in the last 10 years of life and £104,527 for additional assistance for periods each year when unable to use a prosthesis (with a plastic surgeon instructed, I query whether this latter award might have been higher). In my view, these types of figures should be considered the norm in cases of this type.

The judgment also highlights the importance of accounting for additional care & assistance during periods of future general illness (2 weeks per year of additional care awarded) and childcare (10.5 hours per week additional assistance with childcare up to 3 years of age plus additional domestic assistance when the children were aged 1-12 awarded). Again, these are valuable claims that are sometimes missed in amputation cases to the detriment of Claimants.

Life Expectancy

In recent years it has become increasingly common for Defendants to argue that life expectancy should be reduced on account of an amputation and seek a supportive opinion from their rehabilitation consultant on this point. This is exactly what happened in Riley, with the Defendant’s rehabilitation consultant suggesting a reduction of 3 years due to impaired mobility and excessive BMI. Unfortunately for the Defendant their arguments on life expectancy immediately fell apart upon the cross examination of their rehabilitation consultant, who candidly confirmed that he was not a specialist expert on the subject, that there was no reliable study of below-knee amputees supporting a reduction in life expectancy and that any proper assessment would require a skilled analysis of plus and minus factors that had not been carried out. As a result, the trial judge had no hesitation in finding that the Claimant should be treated as having a normal life expectancy, commenting in the process that “there is no reliable epidemiological evidence that below-knee amputation leads to a reduction in life expectancy”.

Needless to say, this is a very helpful judgment for Claimants when faced with such arguments in future cases.

Future Loss of Earnings

Several significant points arise from the judgment in relation to loss of earnings.

Firstly, the Defendant’s (highly ambitious) attempt to argue for a Smith v Manchester or Blamire award was given short shrift. The judge found as a fact that, but for the Defendant’s negligence, the Claimant would have started a degree course in IT in September 2016, graduated in 2019 and remained in the IT sector until retirement at 68 years of age. As it was, the Claimant had not returned to any form of education or employment since the accident (deemed reasonable by the judge) and was uncertain about a future career. The judge found that the Claimant was likely to acquire some IT qualifications and then return to work in the IT sector on a part-time basis before finding employment in a full-time or near full-time role (with a tolerant employer) using the 25^th centile for IT technicians in the ASHE tables. A full disability discount factor was applied to these residual earnings using Table B.

Secondly, the judge accepted the evidence of the Defendant’s rehabilitation consultant that the Claimant would have to retire 3-5 years early because of complications with osteoarthritis and that the ability to work full-time would be adversely affected from age 60 onwards as a result of the state of the Claimant’s stump, increased incidence of complications and periods when he couldn’t wear his prosthesis. This in turn led to a reduction in predicted earnings during the final years of employment. The finding of a return to full-time / near full time hours in the future was no doubt influenced by the sedentary nature of the Claimant’s assumed employment. I would suggest that the outcome is likely to have been different in a more physical role.

Prosthetics

The Claimant was awarded a total of £737,466 for future prosthetics based on a model of:

1. A microprocessor limb (Kinnex) to age 75
2. An alternative everyday limb (Echelon VT) to age 75
3. A combined high activity and waterproof limb to age 60
4. A single lightweight prosthesis from age 75 onwards
5. A single cycle of a dedicated snowboarding limb

Of course, every case must be determined on its own facts, but I have a number of observations on this head of claim:

• Although the Defendant’s prosthetics expert had argued against the provision of the Kinnex microprocessor limb (on the basis it was too heavy and cumbersome), this was conceded by the Defendant at trial. The fact that this microprocessor limb had been trialled and evidenced to benefit the Clamant in various respects was obviously crucial to this outcome;
• As we saw in Swift, the need for a second everyday limb for back-up and different types of activities / use was considered reasonable;
• A microprocessor prosthesis was only allowed to age 75 based on the evidence of the Claimant’s prosthetics expert. This stands in contrast to the decision in Swift, where a microprocessor limb (a Meridium) was allowed for life on the basis that it was “overwhelmingly likely that the Claimant will in her later life elect to stay with the prosthesis with which, by them she will have long been familiar”;
• The judgment is silent on whether an Empower limb was trialled in this case. This is often the microprocessor limb of choice for younger Claimants with below knee amputations (being the only prosthesis available with powered propulsion) and the costs of this can make a very significant difference to the valuation of the prosthetics claim. Had this limb been recovered, the overall valuation of the claim would have been closer to £5 million;
• Mr Riley was awarded a combined high activity and waterproof limb to age 60 based on the evidence of his prosthetics expert. In contrast, the Claimant in Swift recovered a dedicated limb for sports activities and a separate dedicated water activity limb, with the sports limb recovered to age 70 and the water limb recovered for life. This is the model I see most often put forward in below knee amputation cases and it is particularly difficult to understand (it not being clear from the judgment) why the need for a water limb (which is often used for showering / pool use) would end at age 60;
• The award of a single cycle snowboarding limb seems to have been the result of a failure to trial such an activity (only a single session of skiing on an indoor slope had taken place) thereby reminding practitioners of the importance of properly trialling dedicated limbs before a case comes to trial;
• Finally, an attempt to argue for a contingency award to reflect potential increased costs of componentry in the future failed on the basis that “it is a matter of speculation as to whether the Claimant will be faced with more expensive prosthetic equipment”

Transport

Important points arise from the judgment when it comes to transport costs. Firstly, the judge found that it was reasonable for the Claimant to purchase a new vehicle (as opposed to second hand) given his dependence on a vehicle and a need for reliability. Secondly, it was accepted that a larger vehicle would be required to age 75 (to provide extra space for the Claimant and his equipment) followed by a need for a WAV. Again, I fear that the need for a WAV is sometimes missed in amputation claims which is surprising given the medical evidence will usually suggest that a Claimant will be significantly wheelchair dependent in later years. Indeed, in the case of Swift these costs were not allowed at all, with Lambert J bemoaning the absence of a specialist needs assessment dealing with these requirements.

Holiday Costs

As in Swift, the trial judge deemed it reasonable that the Claimant should be able to travel in seats next to his wife and children on commercial flights hence awarded the additional costs of the family travelling together. A combination of periodic business class flights and less expensive extra legroom flights was used to value this claim. In my experience, a Defendant will often argue that the costs should be restricted to the Claimant alone and business class is not justified. This judgment is helpful on these points.

Accommodation

A number of interesting points arise from the judgment dealing with accommodation. Firstly, a speculative attempt by the Defendant to argue that the Claimant had failed to mitigate his loss by seeking a contribution from his partner towards the cost of purchasing a suitable property post-accident (or in the alternative a rental contribution) was swiftly rejected. Secondly, the costs involved in the purchase and adaptation of a suitable property were relatively modest for cases of this type and likely reflect the geographical location of this Claimant. Certainly, in cases I have dealt with in London and in the south of the country, the costs of purchase and adaptation will often be significantly higher, hence the claim will be more valuable. Finally, as I have been warning recently, the costs that were included by the accommodation experts for increased running costs were deemed low in view of rises in global energy prices, hence this was factored into the final estimate of future costs.

Conclusion

This judgment has provided further helpful analysis on some of the key issues in amputation claims and is another step forward in highlighting the potential value that these cases have. For those of you who have not read my 2021 article in PI focus ‘Running Amputation Claims – 10 top tips’, a copy is available on the link here.