Published in Lawtel 19 February 2018
PI Quantum Reports
|BUCK v SOUTH ESSEX PARTNERSHIP UNIVERSITY NHS FOUNDATION TRUST (2017)|
The claimant, a 64-year-old woman, received £79,143 for the exacerbation of a pre-existing injury sustained during the course of her employment with the defendant trust in June 2012. She suffered a recurrence injury of cystocele, mild weakness of the posterior vaginal wall, and anxiety and depression, and her prospects on the open labour market would likely be affected.Employers’ Liability: On 1 June 2012, the claimant (C), an occupational therapist technician employed by a mental health unit of the defendant trust, was asked by her supervisor to push a patient in an old wheelchair. This involved pushing the patient up a hill and making several turns with the wheelchair.
C had returned to work following a period of sickness absence caused by pre-existing medical problems, in particular previous surgery on her bladder. She had a transobturator tape procedure in 2008 and then an anterior repair in 2009.
C described the patient as heavy and the task as difficult. She stated that she initially protested due to her medical difficulties but was told to continue. C did as instructed and experienced a pulling sensation in her lower abdomen and simultaneous onset of lower back pain and nausea.
C argued that management were aware that she had previously undergone three operations in 2008, 2009 and 2011 and as such should avoid pushing or pulling heavy objects. C had returned to work in June 2011 and spent four weeks on restricted duties. Further, it had been recorded in C’s supervision records that she was struggling with her physical health as of May 2012 and that her previous operation had not solved her problem.
C suffered a recurrence injury of cystocele and weakness of her posterior vaginal wall. She underwent surgery in January 2013 which was unsuccessful. She was examined by a gynaecologist who advised that she needed a further operation but she chose not to have the surgery due to risks involved.
C sustained injury and brought an action against D alleging that it was negligent in allowing her to carry out manual handling which carried a risk of injury and that it was in breach of the Manual Handling Operations Regulations 1992 reg.2(1) and 4(1)(a).
Liability disputed.Injuries: C suffered a recurrence injury of cystocele and mild weakness of the posterior vaginal wall.Total injury duration: permanentEffects: C’s pre-existing moderate cystocele was very likely significantly exacerbated and progressed from grade 2 to grade 3 as a direct result of the accident. But for the accident, the chance of significant deterioration would have been low for a period of up to five years but would have progressed in any event to a grade 3 beyond this timescale without the accident having occurred.
C also suffered general anxiety and mood variability in the weeks following the accident of which the symptoms were 50% attributable to the accident. C’s symptoms of mood disturbance occurred in the weeks immediately following the index accident, and continued on a consistent basis in the 2-3 years following accident. C continued to experience mild to moderate mood variability as of her psychological evaluation on 9 May 2016.
C also suffered depression, loss of confidence and self-esteem, and associated stress. This was still ongoing at the time of client’s medical assessment on 14 May 2015.
C spent time absent from work from the date of the accident until she left her employment on 12 December 2013. She received full pay until December 2012 and half pay until June 2013. C was also restricted in her performance of the activities of walking and swimming. This was ongoing at the time of C’s medical assessment on 14 May 2015.
Prognosis: C continued to experience general discomfort in the affected area. She also suffered occasional urinary and faecal incontinence.
The client’s medical assessment dated 14 May 2015 stated that, on the balance of probabilities, her prospects on the open labour market would be affected. The medical report was produced for court purposes based on instructions received from C’s solicitor. C further reported being unable to work due to fear of incontinence and ongoing back pain.Court Award: £79,143 total damages
Background to damages:
Solicitors for C made a part 36 offer of £50,000 which was declined by D. A 10% uplift was applied as C beat her Part 36 offer. D was ordered to pay C £971.86 in interest. CRU was offset.
Breakdown of General Damages: Pain, suffering and loss of amenity: £12,500.
Simmons v Castle  EWCA Civ 1288 10 per cent uplift applied.Express Solicitors (Manchester) for the claimant.