England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/03/2015

Sir Colin Mackay :

1. The Claimant, then aged 49, slipped on a wet pavement inside South Kensington tube station and fell awkwardly. Her left leg was bent underneath her, the force of her body was taken on the front aspect of the knee and the knee was twisted in the process. She brings a claim against the Defendant, who was her General Practitioner, for negligent examination of the knee on 16 February 2009.
2. It is accepted by both sides that in the course of that fall she suffered, among other injuries, a fracture of the head of her left fibula in the area to which the collateral ligament attaches to the head of the fibula bone. She also suffered bruising to the rest of the knee joint. It is her case that the failure by the Defendant to conduct a proper examination of her knee was a breach of duty on her part and caused the fracture to go undetected for several months resulting in pain and suffering. She says it also caused her to walk with a stick and adopt an antalgic gait which threw a strain on her low back, in which area there were longstanding but asymptomatic degenerative changes. These changes became productive of painful symptoms because of her need to use the stick and the gait she subsequently adopted as a result.
3. All components of the claim are in issue namely breach of duty, causation and loss.
4. It is said that there were two consequences flowing from the breach of duty and consequent delay in diagnosing this fracture. The first is increased knee pain and loss of mobility and the second is low back pain arising out of the fact that the Claimant had to use a stick for walking.

The claimant's previous medical history

5. The Claimant has a long, complicated and unhappy medical history. She has not been able to work for many years though previously she was a translator and had also worked for an airline. She lived alone in a small semi-basement bedsit on the Fulham Road in London. She is a highly intelligent woman and in my judgment was an essentially honest witness but she is quite understandably very much focused on her many illnesses which have dominated her life to a high degree. She has for many years suffered in varying degrees from neuropathic disorders variously diagnosed as post-viral syndrome, fibromyalgia, chronic fatigue syndrome and ME. She also has a persistent viral infection and has suffered from time to time with depression. These conditions affect almost all parts of her body with muscular and joint aching and pain, with feelings of fatigue and tiredness. She has been heavily dependant upon others to help her with the normal business of life.
6. Dealing with the aspect of back pain the two orthopaedic experts agreed that the question of causation "was inevitably bedevilled by Miss Sibaweih's ongoing inter-current problems of figbromyalgia, chronic fatigue and ME and her repeated assertions of aching all over". The same goes for the court's task, no less than for that of the medical experts.
7. Miss Power with great efficiency and industry has produced a 12 page summary of relevant medical events in the Claimant's life between 1989 and 2012 relating to her back pain and left knee. This is far from being a complete record of all her medical attendances which over those years must have run into the hundreds. I stress that Miss Sibaweih whilst understandably preoccupied by her constant health problems is an essentially honest witness and has at no time set out to deceive the court or the doctors so far as I can judge.
8. So far as the left knee is concerned she appears to have suffered some form of injury at or before the end of 1992 when she had a persistent painful inflammation in it making it necessary for her to use crutches. The left knee continued to be troublesome throughout 1993 and she said she could not walk without a stick in November of that year.
9. In 1994 an arthroscopy revealed gross chronic synovitis and arthrofibrosis of the left knee which was injected but continued to give pain and to be treated until the end of 1995. It was still causing her problems and she had further injections in March 1996. By the end of 1996 she was described as having "done reasonably well" over the past two years but was still complaining of some sharp pains.
10. The knee settled, it would seem, until in late 2005 after a period of squatting in her garden she had a flare up of symptoms which continued into 2006. Between the arthroscopy in 1994 and 2005 though she visited her GP for her other problems over 50 times there is no complaint of trouble in the left knee.
11. In July 2008 she was described as having "made a real benefit" since January 2006 and was now according to the Defendant in a note to the hospital walking independently, meaning without a stick.
12. So far as the back was concerned X-rays in December 1989 revealed mild scoliosis and she was complaining of pain in the low back. There were several occasions in 1993 when she complained of back symptoms, one of which had been brought on by a "twist in bed".
13. The next mentions of back pain are in 1998 when she experienced a lot of pain in her back and neck described as muscle soreness associated with weakness. The following year she described as "a lot of back pain especially on walking or standing". She made periodical claims of back pain in 2000-2003 but is described in July 2006 by the Defendant as "Improving! Walking without a stick!".
14. Also of relevance are the applications that she made for various benefits which required her to give an account of her levels of disability at the relevant time.
15. In February 2005 the Claimant was seen by a doctor in connection with her claim for incapacity benefit and a thorough examination took place. She was recorded as suffering from back problems and said she could only walk for three minutes due to back and lower limb problems and her knee problems and physical fatigue. She walked slowly with a limping gait and using a stick to stand, the doctor noted.
16. She made a further application on 5 March 2008. Her principal complaint then as before was her chronic fatigue syndrome and fibromyalgia but she also reported arthritis in both knees and in general terms pains all over her body. She reported very bad pain in her lower back and bouts of inflammation in her knees such that she could not walk at all. She sometimes used a walking stick.
17. In September 2008 she made an application for disability living allowance for which she had to fill in a 45 page questionnaire. The outcome of the application was that she was awarded the allowance with the mobility component at the higher rate and the care component at the lowest rate. Of interest are some of the descriptions she gave of her then condition. Again the general picture was one of diffuse pain in all parts of her body. She said she used a walking stick outdoors depending on the severity of her condition which was sometimes so acute that she could not pour water out of a kettle unaided.
18. She said at that stage that she could normally walk only 35-40 metres without feeling severe discomfort and it would have taken her two minutes depending on how she felt on the day to achieve even that. On bad days she did not go out at all as she could not manage walking out of doors. There were days her knees hurt very much and she had pain over all her body (bones and muscles) and a feeling of a heaviness and dragging in her legs and arms. "I also have back and neck pain all the time". Sometimes when she was walking outdoors her left knee gave way or her ankle twisted and she stumbled.
19. As to her requirement for care she said she suffered from physical pain and fatigue all the time and found standing or even sitting on a stool to prepare a meal very difficult. "I have lower back pain all the time and aching everywhere in my body…I am never free from pain and fatigue".
20. In her evidence she said that in the months following this application she was better. On the day of the accident itself she was able to go out and walked to South Kensington Station and down the stairs onto the platform, presumably, which it would seem is a distance of approximately a third of a mile.
21. In general terms, said Mr Morrison her orthopaedic expert, the picture painted by her records is part of her "generalised musculo-skeletal and neuropathological problems not related to the injury in 2009", the effects of which were quite different from the symptoms she had intermittently suffered from 1993 onwards.

The accident and its immediate consequences

22. The Claimant said that she slipped on a wet surface with her left leg bent underneath her and was helped up by a lady. Having sat for a while to recover she made her own way home with some difficulty. She agreed she could have gone to an A&E Department but did not at that stage think it was necessary. She waited 11 days to see the Defendant because she liked and respected her and did not take the opportunity offered of getting an earlier appointment with another doctor or use the walk in clinic at the surgery. Instead she rested for that period, took anti-inflammatories and as she put it "hobbled about the flat".
23. As to the defendant's examination, the Claimant's recollection was that she looked at the knee and saw the bruising and swelling, she did not palpate the area of the fracture nor did she flex the knee. She did check the stability of the knee by supporting it with one hand and moving the lower leg with the other, with the leg in a semi-bent position. As she put it if she had been palpated in the area of the head of the fibula that would have been very painful at that time as she could not bear even bear to wear trousers or be touched on the flesh.
24. The Defendant's evidence was that she was aware of the mechanism of the accident and in particular the fact that the left leg had been bent underneath the Claimant as she fell. The fundamentals of such an examination she said were "look-feel-move" and that is what she said she did. Though a flexion of less than 90º would be noticeable, she had not recorded that and said that meant she was happy that the flexion was within normal limits and for that reason did not note it. As to palpation she put her evidence this way. "I just had a good feel of it [which I took to mean the knee generally] I mean a good feel around". The Claimant did not exhibit or complain of pain when she did it.
25. In her notes of the consultation she recorded "no evidence of ligament tear. Bruised." The note is silent about range of movement or palpation. She dealt in the note with medication and said "refer to physio"; she did then complete an urgent physiotherapy referral form as a result of which the Claimant was given an early date of 24 February for that to take place.
26. The Defendant agreed that she had the possibility of a fracture in her mind but that it was not at the top of her list. She agreed that if there had been a possibility of a fracture she would have referred the claimant for X-ray because that is a better investigative technique for a suspected fracture than an MRI scan. She accepted that the accident as described was one clearly capable of causing this particular fracture, which I accept is otherwise generally speaking a rare event. The NICE Guidance of 2010, indicative as it is of good practice at the time, says that a fall onto a flexed knee can cause a fracture of the proximal tibia. It was not her practice to record negative findings in her notes although she accepted she did on this occasion record that there was no ligamentous tear evident.
27. The agreed fact is that there was at that time a slightly displaced fracture at the head of the Claimant's right fibula. I cannot accept the suggestion that at that stage, 11 days after the fall, had that spot been firmly pressed (a description of what is involved in palpation) it would not have elicited an immediate and unequivocal expression of pain on the part of the Claimant. The head of the fibula is easily accessible and evident even to a layman's eye. It is covered only by a layer of skin. The Defendant's experts sought to suggest that over this period of 11 days there would have been healing of the fracture and as Mr Quaile, the defendant's orthopaedic expert, put it there would not have been "exquisite pain" if it was palpated, but rather local tenderness to which, he accepted, the patient would still have reacted.
28. I note below that 6 weeks after the accident on 16 March 2009 a consultant orthopaedic surgeon Mr Strachan recorded that "she was tender around the pre-patellar area and also over the tibial tuberosity". Also on 22 June, over 4 months after the accident, Mr Molajo, an orthopaedic specialist registrar, found tenderness over the proximal fibula.
29. Mr Morrison found it "inconceivable" that a fracture of the fibula would not have given rise to acute tenderness on palpation on the day of the examination. There would have been from the date of the fall bleeding of the fracture, with swelling and bruising, and the whole area around it would have been tender. I found that view compelling.
30. I am satisfied on the balance of probabilities that the fracture was present on 16 February, that the Claimant never experienced or expressed any local pain at the fracture site in the course of the examination nor did she make any comment or complaint about it, and that if there had been proper firm palpation in that area she would have done so. I therefore conclude on the balance of probabilities that the Defendant did not palpate the head of the fibula at any stage.
31. Dr McCarthy, the Claimant's GP expert, said that with this injury the task of the examining GP would be to consider the differential diagnosis which should have included fracture and that the default position should have been to send the patient for X-ray unless she could exclude the possibility of a fracture. The differential diagnosis would have been, he accepted, an unlikely one in the absence of tenderness on palpation. There was really little difference between the experts on this particular issue at the end of the day.
32. Dr Crouch, the Defendant's GP expert, who also subscribed to the view that after 11 days the pain from the fracture would be "not quite as acute", thought there would still have been "some tenderness" and agreed that if there is a possibility of a fracture or if a fracture could not be excluded the GP was "duty bound to refer". This did not happen.
33. I therefore have concluded, with some regret, as I consider she is a good and caring General Practitioner, that Dr Bedford's failure to examine this fracture properly and in particular to palpate the area of the head of the fibula fell below the standard of care reasonably required of a reasonably competent General Practitioner in these circumstances. I record in fairness to her that the slight problem she has with her left hand has no relevance at all to the issues I have to decide.
34. Subsequent events in the management of the Claimant do nothing to disturb the opinion that I have formed. She was indeed seen by a physiotherapist on 24 February and he appears to have endorsed the finding that the only injury here was bruising and he recalls no tenderness at the accident site. An interesting feature of his report (which three of the four expert witnesses failed to detect until a very late stage of this litigation – probably because it was nearly unintelligible) was that he discovered restricted movement (0 to 90º limited by pain) which casts doubt in my judgment on Dr Bedford's assertion that the range of movement was tested by her and found to be normal, but I do accept that variation between visits to practitioners can occur. I do not find she was negligent in this respect.

Events following the consultation

35. Subsequently the claimant consulted the defendant on 2 March "increasingly distressed by left knee". She was depressed, and wanted a referral to Mr Strachan at Charing Cross Hospital, whom she knew and trusted. The defendant, consistently with her diagnosis, gave her instead a non-urgent referral to the MSK unit. In the event rather than wait for this the claimant paid for a number of private consultations with Mr Strachan on 15 and 19 March, 15 and 29 April and 11 May. She was complaining of persisting pain in the knee, limping badly with a stick and exhibiting tenderness over the tibial tuberosity. Mr Strachan seems to have concurred with the theory that all that was wrong with this knee was bruising hence his recommendation to have not one but two MRI scans which, as is agreed by the experts, would not be suitable for the detection of a simple fracture. Strachan was more interested in viewing the area of bruising within the knee, though in fact the second scan showed a fracture through the upper aspect of the fibula.
36. None of these subsequent events shake the opinion I have formed as to what happened and did not happen on 16 February. It is of interest to note that the claimant, who does not appear to be a wealthy woman and who was living on benefits at the time, spent nearly £1,000 of her own money on this exercise, which underlines the genuine nature of her claim to be suffering severe knee pain at this stage.
37. Meanwhile the defendant referred the claimant back to the Pain Consultant at Chelsea and Westminster Hospital where she was reviewed by the Specialist Registrar Mr Molajo. He reported on 22 June that a plain X-Ray had revealed the fracture which appeared to have healed but she still displayed tenderness over the proximal fibula.
38. Mr Morrison thought that by this stage all the knee injuries, bruising and fracture, were very much on the wane and the contribution from the fibula would have been "pretty small". I find that by 6 months from the fall the fracture had ceased to be productive of any symptoms.
39. However, more problems arose when the claimant had an acute onset of low back pain with sciatica at the beginning of July which was shown on MRI imaging to be caused by a loss of disc height and posterior bulging of the disc at L4/5 impinging on the nerve. Mr Morrison accepts that this event cannot be linked causally to the fall or the consequent antalgic gait problem.
40. She was given an epidural injection at the Chelsea and Westminster hospital which made matters worse. She continued to attend the pain clinic through early 2010 controlling the pain with analgesics. In July she was referred, again as a private patient, to the National Hospital, Queen's Square, where there were discussed with her various options including spinal fusion surgery, but by early 2011 the symptoms were clearly reasonably well controlled by drugs and that episode seems to have come to an end.
41. The case for the claimant is that thereafter she has suffered and continues to suffer from a long term chronic back condition, which carries with it a need for increasing care in her daily life.

Causation of damage and loss

42. The claimant accepts that her left knee is not now productive of symptoms and I have made a finding that it ceased to be so after about 6 months. I am satisfied that she has not exaggerated the high level of pain it caused, especially for the first 3 or 4 months, as she hobbled around on her stick with a non-immobilised displaced fracture. Her efforts to get to the bottom of it as a problem show this. Had this been the only injury she suffered I would have thought general damages in the region of £2,000 would have been appropriate. I take into account the fact that her quality of life apart from this event was significantly impaired, and to detract further from it with an additional pain burden was particularly unpleasant for this lady.
43. The back pain is more problematic. Her case is that had there been a correct diagnosis on 16 February she would have been referred to hospital and X-rayed, the fracture would have been detected, it would have been immobilised with a splint and she would have been given crutches for her mobility. Mr Quaile agreed unequivocally in his report about splinting and the prescription of crutches as an appropriate part of her treatment, and I so find.
44. The significant bruising that she had to the lateral condyle of the knee, the weight bearing lower end of the femur, would have caused her severe problems with her mobility even had there been no tibial fracture or if it had been correctly diagnosed by the defendant. I am however prepared to accept on a balance of probabilities that the additional pain burden from the unsplinted fibula added to her immobility and thus use of a stick, both in terms of intensity and duration and should be regarded as a significant cause of what flowed from it.
45. I accept that the back pain caused by the abnormal gait she adopted, protecting the painful knee and throwing undue weight on her right side, was different in kind from what Mr Morrison called the generalised aches and pains she had suffered over many years before this event. There were therefore two concurrent causes of back pain from July 2009 for about the next 18 months.
46. I am however entirely unpersuaded by the proposition that the back pain the claimant describes in her witness statement of March 2014 (pain on sitting for more than an hour; inability to walk for more than 10 minutes; problems with stairs; interrupted sleep; sometimes needing to use a stick) was any different from the problems she was experiencing at various times before the fall due to her complex chronic conditions.
47. There is also the problem of the acute disc prolapse and sciatica in July 2009 which were unrelated to the fall or the failure to diagnose the fibular fracture. The effects of this were disabling, arose as an acute flareup, and must be separated out from any continuing symptoms attributable to the use of a stick in 2009.
48. I do however consider that over a period of about 18 months to 2 years after the consultation the claimant was suffering a degree of back pain referable to the defendant's negligence, additional to albeit overshadowed by the acute disc related episode.
49. The defendant argues that this is at best an acceleration of symptoms case, and that what she now complains of in terms of her back is a facet joint syndrome which could have come on at any time without the accident. Mr Quaile estimated a period of 12-18 months after which he was saying these symptoms would have occurred. This is always a difficult exercise, but having found there is no probability that the use of a stick has caused lifelong disability I have to do the best I can on the material before me to see what period of back pain can be attributed to this. Mr Quaile's range is an estimate from an experienced and expert source and I believe I should adopt it as the most likely acceleration period.
50. I have considered JC Guidelines 12^th Edition 7 (B) (c) (ii) and some authorities which Miss Power has put before me. The bracket is a wide one, and if this injury stood alone I would place it somewhere in the middle.
51. I therefore assess the total damages for pain suffering and loss of amenity at £6,000.
52. As for the care claim the evidence is very imprecise as it often is. The Local Authority pre-accident provision was always inadequate to meet her needs (1 hour cleaning and 1 ½ hours shopping per week) . Over the 18 months or so after the fall the principal provider was her near neighbour Ms Kooros who said in her 2014 witness statement that she had known the claimant since about 2007 and noticed that after the accident she was literally unable to do anything herself having developed severe pain in her back. She provided her with meals, daily shopping, any heavy domestic chores such as changing bed linen and accompanying her on her many medical appointments. She said she also talked to the claimant and spoke of her with evident kindness. Her ministrations tailed off from about 2 years after the fall. She saw very little of her now as she had had to take care of her sister who lived elsewhere. There were other friends who helped out but Ms Kooros was obviously the main provider at the time I am interested in.
53. Having considered the care experts' reports, their respective assessments of the hours attributable to the tort in the initial approximately 18 month period, and the evidence on Ms Kooros, inclined as she was to be modest about her efforts and I find, invaluable help I find that about 5 hours a week is a fair valuation of the help from all quarters. The commercial rate at the time was in the region of £6.80 per hour, which over an 18 month period, and discounting for a non commercial supply of care at 25% leads to a figure which I round up to £2,000, which I award for past gratuitous care in this case.
54. That leaves the cost of private treatment between 16 March and the end of May 2009 which is £980. The other items in the Schedule are not connected to the negligence I have found.
55. I would be grateful if counsel could draw a proposed draft order and include a calculation of interest based on my figures.