High Court Judgment Template - Civil Litigation Brief



Case No: D75YJ173IN THE COUNTY COURT AT LEEDSDate: 24 January 2020 Before :HER HONOUR JUDGE BELCHER- - - - - - - - - - - - - - - - - - - - -Between :Julie CrosbyClaimant- and -Wakefield Metropolitan District CouncilDefendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Edward Ramsay (instructed by Prince Evans Solicitors LLP) for the ClaimantMr Michael Nicholson (instructed by Kennedys Law LLP) for the DefendantHearing dates: 9-12 December 2019- - - - - - - - - - - - - - - - - - - - -Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................HER HONOUR JUDGE BELCHERHer Honour Judge Belcher : In this matter the Claimant, Julie Crosby claims damages for personal injuries and consequential losses suffered by as a result of a tripping incident in a pothole on Thornes Moor Drive on 31 May 2014. The Defendant is the highway authority responsible for Thornes Moor Drive.Seven lever arch files of documents were produced for the trial, compromising a Core Bundle labelled A1, and six further Bundles labelled A – E. To avoid the risk of confusion between Bundles A and A1, references to the Core Bundle will be by the letters “CB” followed by the page number, for example CB247. References to the other Bundles will be by the Bundle letter, followed by the page number, for example D1656.The Facts In May 2014 the Claimant and her husband were living at 58 Thornes Moor Drive. On 31 May 2014, various family members had been to the Claimant’s home to watch a boxing match on the television. Mrs Crosby’s daughter, Rosie, Rosie’s then husband and their two young children had travelled by car. When they all returned to their car at or shortly before midnight, it failed to start. Mrs Crosby’s son Joshua, and Mr Crosby went outside to help push the car in an attempt to jump start it. Initially Mrs Crosby watched this from the sitting room, but after two unsuccessful attempts to start the car she went outside, and she helped her son and husband to push the car. All three were pushing at the rear of the car, with the Claimant in the middle of the three. The car travelled over a large pothole in the road outside her home which Mrs Crosby had not seen, and she fell into the pothole, suffering injuries, the details of which I shall return to later.The Defendant, perfectly properly, put the Claimant to proof of the accident circumstances. I heard evidence from the Claimant, from her husband Mr Sean Crosby, and her daughter Rosie Courtney. I have no hesitation in accepting their evidence as to the circumstances of the accident. Accordingly, I find on the balance of probabilities, that Mrs Crosby tripped in a large pothole in Thornes Moor Drive, and suffered injuries as a consequence of that fall. I am satisfied that the photographs taken by Mrs Crosby (CB730; CB117) show the pothole in question before it was repaired.Liability issuesBy the time of trial, the Defendant had conceded that the pothole in question was a dangerous defect. In those circumstances, Mr Nicholson accepted that the Defendant was in breach of Section 41 Highways Act 1980, by reason of its failure to maintain the highway. The real issue on liability is whether the Defendant is able to prove the statutory defence provided by Section 58 Highways Act 1980. Section 58 provides as follows:“In an action against the a highway authority in respect of damage resulting from their failure to maintain a highway…it is a defence ..to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic."Traffic in that Section includes foot traffic. The burden of proving the defence is on the Defendant, on a balance of probabilities. By Section 58(2) I am required in considering whether the statutory defence is made out to have regard to the following matters:- “(a) the character of the highway, and the traffic which was reasonably to be expected to use it; (b) the standard of maintenance appropriate for a highway of that character and used by such traffic;(c) the state of repair in which a reasonable person would have expected to find the highway; (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the highway in question was likely to cause danger to users of the highway”.As is usual in these cases, the Defendant relies upon its policy for carrying out safety inspections of highways within its area. The Defendant’s Code of Practice for Maintenance from July 2005 was in force at the time of Mrs Crosby’s accident. A copy of that policy was produced in evidence by Mr Michael Smith, an Assets Engineer deployed by Wakefield MDC whose duties include maintaining the council’s safety policy, and managing the safety inspection system, although he does not directly manage the inspection team who carry out the inspections (Witness Statement of Michael Smith: CB363). The copy highway maintenance policy is at CB370- 412 (“the Policy”). In line with national recommendations, all carriageways footways and cycleways are allocated a category and reference. Thornes Moor Drive is categorised as a Local Access Road (Witness Statement of Paul Barker: CB335, paragraph 2). As such it is subject to annual inspections (CB371, paragraph 6). Mr Ramsay on behalf of the Claimant did not challenge the categorisation of Thornes Moor Drive as a Local Access Road, or the frequency of the inspection of such roads under the Policy. His case is that the Defendant cannot prove that the Policy has been properly applied/carried out and, accordingly, cannot prove the statutory defence.Part D of the Policy sets out intervention levels for recorded defects. Potholes or trip issues in the carriageway are defined as Category 1 defects if they have a minimum size of 50 x 100mm and a depth of 65mm+, and as Category 2 defects if they have a minimum size of 50 x 100mm and a depth of 50 - 64mm (CB380). A Category 1 defect should be made safe, repaired or referred to external bodies within 24 hours. The period for Category 2 defects is seven calendar days. (CB376). Part B of the Policy sets out the method for carrying out safety surveys. Paragraphs 7 and 8 deal with driven surveys, making it clear that on observing a defect, the vehicle should be stopped and the officer should “…leave the vehicle to examine the defect, measure, mark and record the defect if the defect meets the intervention criteria” (CB374). Whilst the same is not expressly set out in relation to a safety survey carried out on foot, Mr Barker agreed in cross-examination that defects have to be measured in order to establish whether they are Category 1 or Category 2 defects, and that the measurements have to be recorded. He agreed that the measurements required are the length, width and depth as set out in the Policy. He told me that if a defect is measured but does not reach Category 1 or Category 2, the details are not recorded. However, if the defect reaches Category 1 or a Category 2, the measurements are recorded. He agreed in cross examination that this evidence is not in his Witness Statement, and that the Policy does not specify that details of defects not reaching Categories 1 or 2 are not recorded. Equally, I note that the Policy does not require measurements of defects not reaching those categories to be recorded.The Defendant’s case is that Thornes Moor Drive was the subject of a walked annual safety inspection by Mr Paul Barker on 18 June 2013. On that occasion he identified 10 defects for repair. (Witness Statement of Paul Barker: CB336, paragraph 7). Copy inspection records for that inspection are at CB339 – 344. In cross-examination Mr Barker was taken to CB310 which shows that a complaint was made in relation to 3 potholes outside 50 Thornes Moor Drive on 10 June 2013. It was suggested to Mr Barker that his visit, just eight days later, on 18 June 2013 was not an annual inspection but was simply a reactive inspection in the light of the complaint. Mr Barker did not accept this. He told me that programmed works following an annual inspection carry a prefix which identifies the area technician who has identified the works in question. He pointed to the fact that CB310 shows 10 issued jobs each with the prefix AF. Mr Barker told me that AF is the prefix used to identify him. He told me that reactive jobs would be prefixed “SD”, which stands for safety defect. Such a defect could have been identified by any of the six area technicians who cover this area. He told me that as all the jobs issued on 18 June 2013 bear the prefix AF, this shows that they were identified by him on his annual inspection. It was put to Mr Barker that whilst he identified 10 defects, there are no depth measurements for those defects on the documents disclosed. He was taken to the Safety Inspection Defect Summary Reports at CB 303 - 308 and his first response was that the depth measurements had not come out in the copying. He suggested that the document had been cut off in some way, and that it could be the “4M” at the bottom left hand corner of the page if turned and read in the landscape position. He was taken through further pages and he had to agree that there were no depth measurements on these documents. He then volunteered that other documents must have the measurements. He said that he had given Categories 1 or 2 to all of these defects as set out in these documents and, therefore, he must have measured them. He told me that he records the depth on his data capture device which then prints out a defect sheet for the depot gangs to go and repair the defect. He told me it must be the software that leaves the depth off, adding that he thinks there must be another document somewhere that has the depths on. In the light of that evidence which was given on the second day of the trial, Mr Ramsay was rightly concerned as to whether there had been proper disclosure. I pointed out that the duty of disclosure was a continuing one and, through counsel, the Defendant indicated that they would check for further documents overnight. No further documents were disclosed during the remainder of the trial.Mr Barker agreed that of the 10 jobs issued as a result of the inspection on 18 June 2013, only one defect was repaired outside number 50. The caller had complained of three potholes. On 16 April 2014, the Defendant received a complaint concerning two potholes outside number 50 Thornes Moor Drive, the caller saying she had reported the potholes in June 2013 and that they are getting deeper (CB312). On 25 April 2014, Paul Barker visited the site in response to that complaint. In his Witness Statement Paul Barker states as follows:“I also attended Thornes Moor Drive, following a complaint from a member of the public in relation to 2 potholes on the road. The complaint was made on 16 April 2014 and I attended the location on 25 April 2014. I issued jobs to the contractors to fill two potholes as they met the safety criteria. Produced and verified by me at “PB2” is a copy of the complaint record relating to the potholes outside of number 50 Thornes Moor Drive.Produced and verified by me at exhibit “PB3” is a copy of the safety survey-defect report sheet confirming that the repairs to the defects inspected on 25 April 2014 were repaired on 2nd May 2014” (CB336, paragraphs 8 and 9). Mr Barker was cross examined in some detail in relation to the exhibited documents referred to there. He agreed that he cannot say how many potholes he identified on 25 April 2014, but he agreed that more than two potholes were repaired after that inspection. At CB348 – 353 are the Safety Surveys – Defect Report Sheets for the defects repaired on 2 May 2014. CB348 relates to a repair to a pothole outside 11 Thornes Moor Drive. Mr Barker agreed CB348 records that he saw 3 potholes, but records a depth measurement for only 1 of the 3, adding “It could be a typo or the software”. Mr Barker said that he will have noticed this repair as he was driving along Thornes Moor Drive towards Number 50 (in response to the complaint about potholes outside Number 50). The documents show that on 25 April 2014, Mr Barker also found a pothole outside Number 31 Thornes Moor Drive (CB 350). No depth measurement is recorded there. He said he would have recorded the length, width and depth on a piece of paper or a post it and those details would have been put onto the system on his return to the office. He told me that for reactive work, technicians do not carry handheld capture devices. Asked why there is no depth measurement at CB350, Mr Barker said “Maybe it’s the software. I have no idea”. CB352 records a total of 3 potholes outside Number 50, with only 2 depth measurements (50mm and 60mm), and 2 recorded areas in square metres. It seems likely that one of those areas covers 2 of the 3 potholes. Mr Barker was taken to the map of Thornes Moor Drive at B859. He agreed with the suggestion that the pothole in issue in this case was some 4 to 5 houses further down from 31 Thornes Moor Drive, outside Number 60. He then told me that he drove into Thornes Moor Drive from Thornes Moor Road, accessing Thornes Moor Drive between house Number 1 on Thornes Moor Drive and house Number 8 on Thornes Moor Road. He said he was heading towards number 50 and from the documents “…. it looks like I stopped at number 11, and then beyond number 50, I saw the pothole at number 31”. The way Mr Barker phrased this evidence, it is clear that this is his reconstruction based on what the documents show him to have found. I do not criticise him for that. Indeed, I would have been very surprised if, in December 2019, he was able to give evidence that he could remember exactly what he had done when carrying out his inspection over 5 ? years earlier, on 25 April 2014, particularly as he is carrying out inspections of the roads in the area daily as part of his employment. Mr Barker was then taken to the photograph of the pothole in issue at CB730 and was asked whether what is in that photograph would have been there on 25 April 2014. His answer was “I’ve no idea. If this is outside Number 60, I didn’t actually go there”. He agreed that this was not in his Witness Statement. In re-examination on this issue, Mr Barker said “I went to an enquiry to house Number 50 and that is as far as I got on the street”. I have to say I have difficulty with this particular evidence. That evidence in fact contradicts the evidence he gave in cross-examination by reference to the plan at B859 (as set out in paragraph 16 above). If, as he says, he entered Thornes Moor Drive at house Number 1, looking at the plan, he must have reached Number 50, before he reached Number 31. In my judgment, his response in re-examination that Number 50 is as far as he got on that street is plainly wrong. I have already pointed out that his evidence as to his route that day is based on his reconstruction from the documents. Mr Barker set out to inspect the pothole outside number 50. He plainly went beyond 50 towards Number 31, but he gave no evidence as to what he did after that. He simply stated that if the pothole shown at CB730 is outside number 60, he did not go there. In my judgment, his evidence that number 50 was as far as he got on the street was wholly self-serving. The Claimant’s accident was on the 31 May 2014, some 5 weeks after Mr Barker’s attendance on 25 April 2014. At paragraph 10 of his Witness Statement, Mr Barker states that he attended Thornes Moor Drive again “following complaints in regards to the Claimant’s accident…”. The complaints were made on 3 June and he states that he attended the same day as the programmed annual safety inspection was also due. He carried out a full walked inspection of the road including inspecting the location for which complaints have been received (CB336). He refers to the records (produced by him as PB4; CB355-359) and says that he can see from the records that he identified eight defects. Again, this evidence is based on a referral to historic documents, and not personal recollection.In cross-examination he was referred to the Walked Survey document at CB 320, and it was pointed out that no measurements are recorded for any of the eight defects. Mr Barker’s response was that this was just what’s printed off the software and that there will be measurements somewhere. He told me that he was 100% certain that every job he issues has a depth measurement to it.It was then put to Mr Barker that on 3 June 2014 when he attended he knew that been an accident, to which he replied “I don’t think so”. He was referred to paragraph 10 of his Witness Statement, but again said that he did not think he knew, adding “It’s probably just the way the Statement is written”. In response to questions from me, he confirmed that the Witness Statements are prepared by others and he just reads them a few times and signs them. It was pointed out that the Witness Statement expressly says that he went to the site following complaints in relation to the Claimant’s accident, and he said that his recollection is that he was not aware of the complaint when he went to do the walked safety inspection. He added “I think the statement is poorly written and I haven’t understood it”. Mr Barker agreed that the Safety Survey-Defect Report sheet at CB424 referring to a pothole outside house number 44, opposite house number 62 is the pothole in question in this case. He has described it by reference to the boundaries between the houses on the road to enable the gangs to locate the defect. Asked why it was that having identified eight defects that day, Mr Barker has produced only one Defect Report Sheet (at CB424), his response was “I didn’t prepare the bundle”. Mr Ramsay then pointed out that Mr Barker had exhibited all the defect reports for his attendance on 25 April 2014, to which Mr Barker responded “If you say so”. He accepted that there should be other defect reports covering the other defects he identified. None has been disclosed.Mr Barker was a defensive witness, with an attitude which, at times, was less than helpful, such as the answers he gave set out in Paragraph 21 above. I am troubled by his evidence that he did not go to the area outside number 60 and that he only got as far as number 50. As set out in Paragraph 17 above, he plainly went further than number 50, so that his evidence in re-examination was plainly wrong. Whilst he was able to surmise the route he must have taken by looking at the order in which he identified the defects on Thornes Moor Drive (the defect outside number 11, then outside number 50, and then outside number 31), he has no basis at all for saying that he never went to the area outside number 60. Had he said that he could not say where he went after he identified the defect at number 31, but that if he had carried on past number 60, he would have seen the defect shown in the photograph at CB730 if it was there, because it was so large it would have been virtually impossible to miss, that evidence would be understandable, and rather more credible. That was not his evidence. This defensive witness simply asserted that he did not go to the area where that pothole is said to have been.I also heard evidence from Michael Smith, who as I have already said is responsible for maintaining the council’s safety policy and managing the safety inspection system. In his Witness Statement (CB365, table in paragraph 9) Mr Smith set out the intervention levels for the depth of potholes which the Defendant has used since April 2003. Asked about this in cross-examination he said that at that time the only relevant measurement was depth and that length and width were not relevant. Unsurprisingly, he was taken to the Policy which expressly includes width and length measurements which he then acknowledged, adding that for a large pothole, like the one in this case, depth would be the only issue. That is not what he said originally which was that length and width had no relevance to the intervention level in the Policy. Whilst he had to accept that the documents disclose shown no measurements for the potholes following the June 2013 inspection by Mr Barker, Mr Smith asserted that they are in the system but have simply not been reproduced in the documents before the court. He was also taken to the Safety Defect Report Sheet at B528 which gives the dimensions for a patch repair of 700 x 1900, and he agreed these are the same dimensions given at CB306 for the patch repair identified by Mr Barker under instruction reference AF 3863 – 125. In response to the suggestion that the only measurements noted are those for the size of the repair, Mr Smith again asserted that the measurements of the defects were recorded and are simply not reproduced in the documents. As already noted, no further documents were disclosed by the Defendant during the remainder of the trial. Like Mr Barker, Mr Smith gave evidence on the second day of the trial.Before turning to counsel’s submissions in relation to this issue, I should note the evidence of each of the Claimant, her husband Shaun Crosby and her daughter Rosie Courtney, that none of them had ever noticed this pothole prior to the date of Mrs Crosby’s accident (Witness Statement of Julie Crosby: CB85, paragraph 6; Witness Statement of Shaun Crosby: CB 290, paragraph 7; Witness Statement of Rosie Blair (now Rosie Courtney): CB 296 paragraph 6), evidence which was explored with each in cross-examination and which each maintained to be the case. Although the Claimant and her husband had lived at the property since September 2013, each said they had not seen the pothole. Looking from their driveway into the road, the pothole was to the right of their driveway. Each told me that they never drove over that stretch of the road and had no reason to do so. When leaving the property in a car, each always turned to the left out of the driveway, and when returning to the property from work or other trips out, each approached from the direction which meant that he or she turned right into the driveway, and neither approached from the direction which would involve travelling over the pothole. Similarly, if going out on foot, particularly for example to take their grandchildren to the park, they would turn left out of the drive to reach the park. They had no reason to walk to the right from their drive and each said he or she was unaware of the pothole prior to the accident. Rosie Courtney said that she too was unaware of the pothole. She and her then husband visited her parents with their children prior to the accident. She confirmed they would approach from the direction which did not involve going over the pothole. She confirmed that walking to the park involved turning left out of the driveway. Mrs Crosby was cross-examined on the basis that whilst she turned left out of her driveway, she would have to look to the right to check it was clear. She agreed that she had to look to the right, but she said she was looking to see what traffic was coming towards her, and not down at the road surface. Mr Crosby also said that he had never seen the pothole prior to the accident as he had not driven over it. Each of Mr and Mrs Crosby considered they were public spirited and would like to think that they would have reported a pothole of this size if they had seen it.Mr Nicholson submitted that as the system of annual walked inspections cannot be challenged since it complies with the National Code of Practice, this case is really about the suggestion that the pothole in question was there on 25 April 2014 and was missed by Mr Barker. Mr Nicholson submitted that if Mr Barker had seen it in that state, he would have arranged its repair, as he did on 3 June 2014, when he attended in response to the complaints. Mr Nicholson further submitted that the reason that Mr Barker did not see the defect on 25 April 2014 was either because it was not there or because Mr Barker did not travel that section of the road. He submitted that there was no reason for Mr Barker to travel along the whole road as he was simply responding to a complaint of a pothole outside Number 50. Despite that, Mr Barker identified extra defects being those outside numbers 11 and 31. In support of his submission that the pothole was not there, he relies on the evidence of the Claimant and her witnesses and, in particular, that despite being public spirited, they and their daughter say they were not aware of the pothole, or in Mr Crosby’s words “anything like it”, and yet on a daily basis Mr and Mrs Crosby were pulling out into the road, and from the road into the driveway. He submitted it is very strange that a pothole of that size should be there and not have been seen by the Claimant, her husband or her daughter. Mr Nicholson submitted, therefore, that the pothole could not have been there. He submitted the Claimant cannot have it both ways. She and her witnesses gave the clear accounts that they were not aware of the pothole until after the accident. He submitted that if they were genuinely unaware of the pothole, it is unlikely to have been there for any length of time, something he submitted is bolstered by the lack of any complaint about the pothole until after the Claimant’s accident.In response to these submissions, Mr Ramsay submitted that so far as the Claimant and her witnesses are concerned, they are simply members of the public. He submitted there is a big difference between seeing something and appreciating the significance of it. Safety inspectors attend looking for potholes, see them and appreciates the significance of them. He submitted that the Claimant and her husband were focusing on something else, namely whether any traffic was coming and whether it was safe to pull into or out of their driveway, as the case may be. Mr Ramsay submitted that the Claimant and her witnesses should not be tested by reference to the same standards that the Defendant’s safety inspectors should apply.Mr Ramsay submitted that on the last annual safety inspection on 18 June 2013, there are no recorded measurements for any of the defects identified. He submitted that either there are further documents which the Defendant has failed to disclose or, there are no such documents, in which case no measurements of those defects took place. Mr Ramsay submitted that either way, there is no evidence before the court of measurements being taken in the last annual safety inspection prior to the Claimant’s accident. How, he asked, can the Defendant prove a reasonable system of inspection? How can the Defendant possibly show it has taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous? Mr Ramsay further submitted that the fact that the Defendant’s witnesses had such a fundamental misunderstanding of their own documents must count against them when they have the burden of proving the Section 58 defence. He submitted that if Mr Barker did not know that he did not take measurements in 2013, or at best that the documents do not show those measurements, the court should not place reliance upon his evidence. He pointed to the fact that Mr Smith had to be taken to the Council’s own Policy which was exhibited to his Witness Statement and which undermined the statement in his Witness Statement that only the depth of potholes was relevant. Mr Ramsay submitted that when looked at as a whole, the court should be enormously concerned by the Defendant’s evidence and their approach to the case. He pointed to the failure to disclose documents which the defence witnesses asserted exist, that is the documents disclosing measurements of defects. He submitted that either such documents do not exist, in which case the witnesses are not telling the truth, or if they do exist, it is wholly unsafe to allow the Defendant to succeed where it has the burden of proving the defence but has failed to disclose documents on a key and material issue, namely whether the depths of defects were measured properly or at all in the June 2013 annual walked inspection. Mr Ramsay further submitted that cross-examination of Mr Barker and Mr Smith revealed that the Safety Defect Report Sheets for 18 June 2013 at B528 - 534 show that what was measured is the dimensions of the saw cut patch, which is the repair area over the pothole or potholes. He submitted that these documents show that they were not measuring the potholes, in breach of their own policy, but instead measuring the nature repair. Mr Ramsay further submitted that Mr Nicholson’s submissions amount to a reversal of the burden of proof, insofar as he relies upon the evidence of the Claimant and her witnesses that they had not seen the pothole prior to the accident. He submitted that Mr Nicholson’s submissions amount to “You should have spotted it, it’s your fault”. That needs to be set against the evidence that no measurements were taken at the time of the walked annual inspection in 2013, and Mr Ramsay submitted that it is mere speculation and assertion for Mr Nicholson to say that the defect must have developed between the annual inspection and the accident, and that on the evidence it was created shortly before the accident. No evidence has been put before the court as to how long the defect would have been in the road. Mr Ramsay submitted that the court should not accept that Mr Barker was diligent since he took no measurements in the 2013 annual inspection, or if he did, they have not been disclosed. He further submitted that a failure to take measurements, or a failure to disclose measurements if they were taken, means that the Section 58 defence cannot be proved. It is possible that there was a defect there at the time of the 2013 inspection, but nobody knows in the absence of measurements having been taken, or in the absence of disclosure of relevant documents. Whilst potholes can develop very quickly, there is no evidence in this case in relation to this particular pothole or its likely development.In relation to whether Mr Barker travelled to the area of the defect on 25 April 2014, Mr Ramsay submitted that the evidence in relation to this is wholly unsatisfactory. I have already indicated that I am troubled by this evidence and the way in which it was given. Mr Ramsay makes the further points that Mr Barker’s Witness Statement fails to address this issue at all. There is no evidence in his Witness Statement as to the route on which he drove, as to whether he continued along the road past Number 60, or whether he turned around in a side road. The point Mr Ramsay made is that in the absence of this evidence being given in chief in the Witness Statement, when Mr Ramsay put to Mr Barker that he obviously failed to spot it on 25 April, Mr Barker could say whatever he likes. Mr Ramsay submitted that there is no proper way to test this on behalf the Claimant and it gives a witness under pressure the chance to provide exculpatory answers. He submitted this is wholly unsatisfactory when the Defendant has the burden of proof on this issue.I recognise that when he attended on 24 April 2014, Mr Barker did not limit himself to the reported defects outside Number 50. He plainly identified other defects and acted responsibly in relation to those defects. However, having considered the evidence as a whole, I have come to the conclusion that the absence of measurements of the defects at the time of 2013 walked annual inspection, means that the Defendant is unable to prove that it operates a system of inspection and maintenance which means that it takes such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous. It may very well be the case that the 2013 annual inspection was properly carried out, but the burden of proof is on the Defendant. There is no way of knowing whether the defects identified at that time were correctly categorised within the Policy, something that is plainly relevant to the Section 58 defence. If they were not correctly categorised, that would leave open the possibility of the presence of other defects not properly identified/categorised. Without that information, it is very difficult, if not impossible, to assess whether the Defendant could reasonably have been expected to know, that the condition of the highway in question was likely to cause danger to users of the highway, a factor I am required to consider under Section 58(2).”.The Defendant, of course, does not accept that defects were not properly measured in accordance with the policy in June 2013. In those circumstances I have considered whether it is open to the Defendant to say, in effect, even though we failed to measure the defects (or have failed to produce documents proving we did so), no defect was identified at the location of the accident defect and, therefore, the failure to take measurements is irrelevant. I have come to the conclusion that approach is not permissible because a failure to properly apply the Policy (or at the very least a failure to provide evidence that the Policy was properly complied with) undermines the whole basis of the Defendant’s defence that it has in place a proper and appropriate system of safety inspections. Plainly, it is not sufficient to have such a system unless it is also properly applied and properly carried into effect. Only then in my judgment can the Defendant properly prove, on the balance of probabilities, that it has taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous. Accordingly, I find on the balance of probabilities that the Defendant has failed to prove the Section 58 defence on the facts of this case.Mr Ramsay made a number of further submissions criticising the Defendant’s approach to this claim. These included a failure to exhibit all relevant documents to Witness Statements, inadequate disclosure, failure to take a photograph of the defect before it was repaired, and the proforma nature of the Witness Statements with cut and paste from previous cases. He submitted these failings are indicative of a wholly uncooperative attitude by the Defendant, suggesting that they have something to hide. I do not need to make any findings as to whether there has been a deliberate attempt to conceal information from the court, and I decline to do so. The criticisms made are valid ones, but these are a matter for the Defendant and its lawyers to consider for the purposes of future cases where it wishes to rely on the Section 58 defence. Before leaving liability, I need to deal with the issue of contributory negligence. Mr Nicholson submitted that the Claimant should have been aware of the pothole if it was there, and that she failed to take proper care for her own safety. I accept the evidence of the Claimant and her witnesses that they were unaware of the existence of the pothole prior to the accident. They had no particular reason to be aware of the existence of this particular pothole. Whilst they may perhaps have seen it when looking to the right before driving out of the driveway, I accept that they had no reason to focus on it or identify it as a potential danger, especially in circumstances where they had no reason to expect they would be travelling over that area of the carriageway, either on foot or in a vehicle.In the pleadings it is suggested that the Claimant was wearing inappropriate footwear. In her Witness Statement the Claimant explains that while she was wearing slippers, they were hard soled slippers (CB84-85) and it was not suggested to her in cross examination that her footwear was inappropriate. It was dark at the time of the accident, and Mrs Crosby was, unsurprisingly, focusing on pushing the stalled vehicle. The position might have been different in daylight, but in all the circumstances I am not satisfied that it is right to ascribe contributory negligence to Mrs Crosby on the basis of failing to spot a defect which must have been beneath the vehicle when she first went into the road to push it, and when it was dark. I decline to reduce any damages on the grounds of contributory negligence.QuantumThe Claimant suffered fractures to her left big toe and to her right second toe. She attended hospital the day after the accident and she was reviewed on several occasions in the fracture clinic. Unfortunately, there were complications with these fractures and towards the end of February 2015, the Claimant had surgery on both toes. There is a dispute as to whether this surgery on her right second toe was occasioned as a result of the accident, or was preferable to a pre-existing proximal interphalangeal (“PIP”) joint fusion in that toe carried out when Mrs Crosby was eight years old. In 2017, Mrs Crosby began experiencing hip and back pain. It is the Claimant’s case that this is referred pain as a result of altered gait, consequent upon the left big toe injury. This is challenged by the Defendant.Mrs Crosby seeks damages for pain suffering and loss of amenity, past care and assistance, loss of earnings, loss of congenial employment, future loss of pension and various other expenses including the cost of future orthotics. Mr Nicholson on behalf of the Defendants submitted that Mrs Crosby has grossly exaggerated her claim, particularly in relation to past care and assistance, but also in relation to the past claim for extra shoes and the future orthotics claim. He invites me to make a finding of fundamental dishonesty in relation to those aspects of the claim such that Mrs Crosby should lose QOCS protection under CPR 44.16(1) and/or I should apply Section 57 of the Criminal Justice and Courts Act 2015. In those circumstances, I consider it sensible to start with those three heads of claim.Past Care and AssistanceMrs Crosby describes herself as effectively housebound and unable to mobilise following the accident. She had to keep her feet elevated and was unable to weight bear on either of her feet. She states that she required assistance on every aspect of her daily life. She struggled with daily tasks such as bathing, dressing, food shopping and meal preparation and was unable to do any housework. Her husband had to assist her with getting in and out of the bath in order to shower. She needed assistance going to the toilet and she was unable to steady herself. From August 2014 she was able to walk awkwardly and was able to carry out some daily chores such as cooking light meals, personal hygiene and dusting. However she still required assistance with heavy household chores that required standing for longer periods, such as hoovering and ironing. She was unable to do any grocery shopping. After her surgery in February 2015 she was again effectively housebound and unable to weight bear. From May 2015 she slowly began to regain her mobility and was able to return to her daily tasks, but still required assistance with heavier tasks such as grocery shopping, hoovering and ironing (Witness Statement: CB89 - 90, paragraphs 23 to 29).In the Claimant’s first Schedule of Losses dated 9 July 2016 (CB816-818) she claimed for a total of 1155 hours of care at the hourly rate of ?6.91, giving a total claim of ?7981.05. The amount of care claimed was for 5 hours a day for the eight weeks immediately after the accident and for the eight weeks after the surgery in February 2015, and for 2 ? hours a day for 26 weeks between August 2014 and January 2015, and for a further eight weeks in May/June 2015 (i.e the further eight weeks claimed at the reduced rate being after the eight weeks post- surgery claimed at the higher rate). In her second Schedule of Losses dated 3 June 2017 (CB819 - 827) the claim for care and assistance had risen to ?11,352.71. The increase arises out of an increase in the number of hours claimed firstly for each of the periods of two months post-accident and post-surgery, where the hours of care are now claimed at 7 hours per day (as against 5 hours per day in the previous schedule), and, secondly, for the period from August 2014 up to surgery in February 2015 where there is an increase of half an hour per day, the claim now being for 3 hours a day as opposed to 2 ? hours previously. The final post-operative period remains a claim at 2 ? hours. In her third Schedule of Loss dated 7 March 2019 (CB828-848) , there is no care claimed at all for the final period, but for the first three periods the number of hours per day remains unchanged from the second Schedule, but the second period claimed for is reduced from 6 months to one month (no doubt to fit in with Mr Madan’s view in the joint expert report which I shall consider below) . The total care claim in the third Schedule is ?6,633.05. Finally, there is an Updated Schedule of Loss for trial on 9 December 2019 at CB 25–48. The purpose of that update was to bring up to date claims for past loss of earnings and to provide alternative scenarios in the loss of future pension calculation. Unsurprisingly, therefore, the care claim in the final Schedule is the same as that in the third Schedule. All four Schedules carry a Statement of Truth and are signed by the Claimant personally.Mr Nicholson submitted that it is self-evident on the face of the documents that the claim for care contains exaggeration. He submitted there is no proper explanation for the increase in hours between the first and second Schedules, and that the reduction of the total care claim from ?11,352.71 in the second Schedule to the figure of ?6, 633.05 in the third and fourth Schedules speaks for itself and illustrates the obvious exaggeration of the claim.I had the benefit of evidence from expert consultant orthopaedic surgeons for both parties, Mr Sanjeev Madan on behalf the Claimant, and Mr Phillip Fagg on behalf of the Defendant. In the first joint report made following a telephone conversation on 8 June 2018, under the heading “Care Requirement” appears the following:“We have both seen the two schedule (sic) of loss that have been provided with the alleged levels of care she required. We agree that neither of us can support the level of care that has been claimed but accept that there would have been a reducing level of care for the first 6 - 8 weeks after the index accident and for 6 - 8 weeks after her foot surgery” CB531.Unusually, there are second and third joint expert statements in this case. In the second joint statement which resulted from a telephone conversation on 20 August 2018, the “Care Requirement” paragraph has been amended and reads as follows:“We previously agreed that neither of us could support the level of care that was claimed but we accepted that there would have been a reducing level of care for the first 6 - 8 weeks after the index accident and for 6 - 8 weeks after her foot surgery. Mr Madan would now say that he notes that after this accident both feet were involved and she was housebound for the first two months and he would therefore support the level of care claimed for that two-month period. He feels that there would then have been an ongoing reducing level of care requirement for a month the heavy manual work and doing shopping and he supports that. Mr Madan will also state that after her operation she was again housebound for 6 to 8 weeks and he would support a similar level of care for that period which he considers is attributable to the index accident.” (CB536)The position on the care requirement is unchanged in the third joint report (CB 543- 544).Unsurprisingly, Mrs Crosby was cross-examined about her care requirement. She was asked if she recalled reducing the claim for care. She said it may have been reduced. She said she did not use a timer and the level of care would alter. She accepted she had signed the Statement of Truth and must have read the Schedule but said she did not understand it as such, and she has never dealt with anything like this before. She accepted that the figures in the Schedule were based on a discussion between her and her solicitor and that she agreed it is an accurate ball park figure. Asked why the level of care reduced, she simply asserted that she did require a level of care. In cross-examination Mr Madan was asked why he changed his mind about the level of care. He said that he had made a mistake and was considering 1 foot in isolation. It’s right to point out that in the first joint report the experts previously agreed that the requirement for surgery to the right toe was not as a consequence of the index accident, something that Mr Madan also changed in the second joint report and a matter I shall come back to later. However it is relevant in that his explanation for changing his mind about the level of care was that he was considering 1 foot in isolation. He said this was his mistake and he apologised for it. He accepted in cross-examination that he knew at the time of the first joint report that Mrs Crosby had suffered injuries to both feet. He accepted in cross-examination that after the first joint report he had had a discussion with counsel. It was brought to his notice that Mrs Crosby had suffered pain and continuing difficulties for longer than what had been suggested. He maintained that the reason he changed his report was because he was given other facts. He said he did not think deeply enough that it can be quite painful and that therefore a longer level of care would be needed, particularly with both feet being involved. I asked him if it was fair to say that he knew this was a bilateral injury but that he had not thought things through properly in his first report and he agreed with this. I found that answer concerning.However, I had far greater concerns about the evidence given by Mr Fagg for the Defendant. It was suggested to Mr Fagg that it was important that the opinion given to the court should be independent and objective and that he should not advocate in any way. He agreed, adding “…..and I shouldn’t change my opinion because my legal team want me to”, a clear indication that he was of the view that that was what Mr Madan had done, despite Mr Madan’s explanation. There is an obvious difference between changing your opinion genuinely based on having overlooked certain facts which are brought to your attention by the legal team, and changing your opinion because the legal team want it to be different. Mr Fagg agreed that he had said to Mr Madan that he was sorry that Mr Madan had been hung out to dry by his legal team. This was after Mr Madan had left the witness box, and obviously before Mr Fagg gave his evidence. I do not know whether it was said in the hearing of the legal team or whether Mr Madan reported it to them. However, in my judgment, it is plainly something that was inappropriate and should not have been said. Mr Fagg said that he was embarrassed as Mr Madan is a friend of his and he felt he had been set up by his legal team. Mr Fagg went further and said he was surprised and disappointed because the second joint statement was forced out of Mr Madan.In the course of cross-examination a fair amount of criticism was levelled at Mr Fagg, and in my judgment properly so. Asked about an incomplete quotation from an operation note, and in particular why he failed to include any reference to what the operating surgeon did to Mrs Crosby’s right toe (an issue I shall return to later), Mr Fagg initially suggested that he was using a separate written operation note and not the typed up version he’d been referred to. The written operation note was put to him and he had to accept that he was in fact quoting from the operation note counsel had put before him. Asked why he omitted the details in relation to the right toe, he said it was an oversight and “I probably switched off when I got to the point where it said the skin was closed”. I consider that an extraordinary answer from a consultant providing an expert report to the court.He was also taken to a letter he wrote on 15/3/18 setting out entries from Mrs Crosby’s medical reports which he considered to be of potential relevance in the case (CB483). At CB486 there are two entries, one dated 6/11/14 dealing with “cervicalgia, pain in the neck”, and the second dated 12/11/14 which does deal with a fracture of the left great toe and work related stress. He was taken to the medical records at F2614 and F2616 and he had to accept that these entries related not to the Claimant, but to a **** Crosby, aged ** who is a ****** He accepted that it was obviously wrong to include these records. It was suggested to him this was sloppy work and he blamed the sheer volume of the records adding “The Claimant’s solicitors sent this to me”, and “On occasions I lose the will to live”. I do not consider the fact he received the records from the Claimant’s solicitors, in any way absolves him or affects his responsibilities as an expert. Whilst anyone can make mistakes, he included these particular entries because he considered them relevant. It was obvious on the face of these records that they did not relate to this Claimant. I was concerned by Mr Fagg’s general attitude towards this.It was also suggested to Mr Fagg that he was advocating for the Defendant rather than leaving matters to the court. In particular at B489 in a letter of 9 April 2018 Mr Fagg reported to the Defendant solicitors and referred, amongst other things to Mrs Crosby having been accused of a severe breach of security in a letter dated 12 June 2013, in which it was recommended that she be given advice and guidance but that if any further instances occurred, it would lead to disciplinary action. In the same paragraph he refers to her failing to engage with occupational health services. Asked what possible relevance these matters had, he said it was relevant to the question of whether she left the prison service because of her orthopaedic injuries or whether it was as a result of her not engaging with occupational health services and that her orthopaedic injuries were the final straw in her wanting to leave anyway, or possibly a combination of those matters. It was pointed out to Mr Fagg that nowhere in that letter does he address reasons for Mrs Crosby leaving, orthopaedic or otherwise and that all he has done is to extract two negative entries, which are potentially prejudicial, to the exclusion of all other items. His response was that these little items suggest that there might be more to this than the orthopaedic injuries and he was just trying to help the court. Unsurprisingly these issues were taken up in the defence skeleton, it being suggested that she left for reasons other than her orthopaedic injuries, but by the time of closing submissions Mr Nicholson did not pursue this and nor could he based on the evidence. Mr Fagg made the point that the occupational health assessments are all there to be seen. I agree and, therefore, it was unnecessary for him to select negative bits from those records. The relevance of those records, in the context identified by Mr Fagg, should more properly have been left to the advocates and lawyers in the case, and in my judgment Mr Fagg was guilty of seeking to be an advocate for the Defendant in the case.He was also criticised for expressing an opinion that Mrs Crosby would not have taken her current job with the post office where she walks approximately 8 to 12 miles a day, five days a week if she was experiencing the level of symptoms she claims (B513). This is perhaps closer to the line in that it might be reasonable to comment on whether the level of symptomology claimed is consistent with that type of work. However, Mr Fagg went further in the witness box and said that with that level of claim symptomology, he would not expect Mrs Crosby to apply for a job as a postman, adding that she had worked as a carer and could live off that (despite the fact that her work as a carer was a zero hours contract). He further added that he would not have expected her to take a job as a postwoman even if was the only job available in the whole of the UK and that she should have gone onto disability benefits, as, according to Mr Fagg, they are so easy to claim. This was extraordinary, and plainly beyond his remit as an expert witness in this case. In cross-examination Mr Fagg agreed that an expert should give a range of opinion where there is one. It was put him that there is not a single area in his reports for this case where he gives a range of opinion. His response was that he usually gives the range of opinion in any joint statements, adding that he had been criticised before for failing to give a range of opinions, and accepting he should give more ranges of opinion. In my judgment his attitude was bordering on arrogance. Having previously had it pointed out to him that he should give more ranges of opinion, he apparently carries on as before and sees no need to change his practice in this respect. That shows a disregard for the proper and just disposal of proceedings. He also commented at one point in his evidence that he had no reason to expect this matter to come to court, as if that justified a less complete approach to matters.Mr Ramsay on behalf of the Claimant submitted that when Mr Fagg described the level of care as extraordinary from his first report, he had jumped in too early with a view, and was plainly batting for the Defendant. Mr Fagg describes the amount of care as extraordinary for someone who suffered a fracture of two toes, although he does add that it would be important to see medical records before considering whether or not the amount of care claimed is reasonable (CB474). Mr Ramsay submitted that Mr Fagg was skating close to the role of an advocate rather than an independent expert. I accept that submission. There is an obvious difference between commenting that the amount of care seems high but may be justified once there has been access to the medical records, and reaching what appears to have been his conclusion at that stage that the amount of care claimed is extraordinary, a conclusion he has subsequently maintained and declined to resile from.Whilst I had concerns about the circumstances in which the joint statement of the expert had to be revisited on two separate occasions to enable Mr Madan to alter his previous opinion, having seen both experts in the witness box, I consider that Mr Madan is the more reliable witness. He accepted he had made errors he should not have made, but he nevertheless maintained that it was his own opinion which was altered as a result of his own error. Having made the error he said it was important to correct it. I am not satisfied that Mr Fagg was giving a truly independent view to the court.Whilst that deals with the expert evidence, it does not alter the fact that the number of hours for which care was claimed must have been provided by Mrs Crosby. Those hours increased between the first and second Schedules of Loss without any explanation for the increase, and then reduce significantly to the third Schedule, including the final period of some eight weeks of care at 2 ? hours a day being abandoned altogether. The fact that the final eight weeks of the care claim was no longer pursued was not explored in evidence with Mrs Crosby. Mr Nicholson submitted that the documents speak for themselves and that the significant reduction in the value of the care claim shows that it was grossly exaggerated at the time of the second Schedule of loss.Mr Ramsay submitted that it was obvious that Mrs Crosby needed care and that the issue is how much care and what cost should be ascribed to it. He submitted that I should find Mrs Crosby to have been an honest witness, willing to make concessions when answering questions in the witness box. He submitted she was not necessarily au fait with the Schedules of Loss and legal documents and that this was really just a case of imprecision on her part. He submitted I should find this was just an issue with the quality of her recollection and the translation of that recollection into a Schedule. I have to say that my overall impression of Mrs Crosby was that she was an honest witness doing her best to assist the court. Having said that, a claim for seven or eight hours of care a day is an awful lot even for someone with no mobility and on crutches. This is a lady who, before the accident, was in employment, doing shift work, and it seems likely that household jobs would be shared between her and her husband in any event. Eight hours would amount to a full day of work for an external employed carer. Whilst her daughter visited to assist when Mr Crosby was at work, it is clear from Mrs Crosby’s own Witness Statement that there were times when she was alone in the house as she describes having to crawl to the toilet rather than use her crutches and risk tripping over the two small dogs (CB89, paragraph 25). I have come to the conclusion that the claim for care is excessive, but I do not consider it has been deliberately and dishonestly exaggerated in order to inflate the claim. I do not belittle the difficulties described by Mrs Crosby in paragraphs 23 to 29 of her Witness Statement, but as she said herself she was not timing the care given and it was difficult to work it out. Doing the best I can and applying a sensible figure, recognising that this is on average and that on some days more care will be provided and on other days less care, I conclude that sensible rates of care would be those set out in the first schedule, namely 5 hours a day for the periods of 8.86 weeks post accident and post surgery, reducing to 2 ? hours a day for the period of 4.43 weeks in between. Applying those figures to the calculation of the care claim in the third Schedule of Losses produces a figure of ?4810.68. Future Treatment: Orthotics/Additional Pairs of Shoes and Physiotherapy.The claim for future Orthotics and additional pairs of shoes in the third Schedule of Loss is in the sum of ?39,572.40 (CB847) [?34,431.60 in the final updated Schedule: CB 46]. Mr Nicholson attacked this as fundamentally dishonest on the basis that Mrs Crosby had no intention, and has no intention of having this orthotic footwear. This claim is based on the expert report of Mr Elmer and details which he provides as to the frequency with which orthoses would need to be replaced, the need for orthotic consultation, and the need to buy additional shoes because the 2 feet are now different sizes. In the course of her evidence it became clear that Mrs Crosby is not wearing specialist orthotic insoles at the present time. Asked in cross-examination how much she had spent on orthoses, she said she had not purchased any specialist ones but had purchased some insoles. She said Mr Elmer had told her she could buy these as an alternative from Amazon or Boots. She agreed these were not specialist orthotic insoles. She commented that these were less expensive, but at no point did she say that she could not afford the specialist orthotic insoles, and she did not give that as a reason for not buying orthotic insoles to date. I am willing to accept that the reason this is in the Schedule is that her solicitors will have advised her that this was a proper claim based on the expert report of Mr Elmer. Accordingly, I do not find it was fundamentally dishonest, but I do find that it is not proved, and I make no award at all for this head of claim.In terms of the claim for shoes in the future, in the third Schedule of Loss the sum claimed is for four pairs of additional shoes per year at an average cost of ?50 per pair, ?200 per year. The total claim is for ?850, representing 4 ? years, or 17 additional pairs of shoes. (I note that in the final updated Schedule claim has reduced to 3 additional pairs per year at the increased sum of ?85 a pair, increasing the annual sum claimed to ?255.00). Asked in cross-examination about the figures in the third Schedule of Loss, Mrs Crosby said that she had probably bought three or four additional pairs in total, and after that she simply bought one larger pair and put tissue in the end of the shoe. She agreed it was certainly not 17 pairs and said this this was her misunderstanding. She said she told the solicitors she purchased three or four pairs. Again, Mr Nicholson submitted this was evidence of exaggeration supporting a finding of fundamental dishonesty. For the reasons I have already given, I am unpersuaded by that. However, the evidence from Mrs Crosby does not support the claim for any extra shoes in the future. She did not suggest that using tissue in the end of the shoes was a problem for her, or that she had stopped buying two pairs in different sizes due to cost. Accordingly I make no award for the cost of extra shoes in the future. Whilst dealing with this head of claim, it is convenient to deal with future physiotherapy which is claimed in the sum of ?480 as part of future treatment (CB46) on the basis that Mr Madan recommends further physiotherapy after Mrs Crosby begins using orthotics. Given my findings that Mrs Crosby has no intention of having orthotics, and my rejection of the claim for the cost of future orthotics, it follows that this head of claim must also fall away.Past Cost of Additional ShoesThe additional shoes are claimed as seven pairs in the sum of ?350 (CB36). Given Mrs Crosby’s evidence that she purchased around three or four pairs of additional shoes, I allow the claim for 3 extra pairs of shoes, in the sum of ?150. I make no award in respect of over-the-counter insoles. Whilst Mrs Crosby said that she had bought some, she did not say how many and there is no evidence as to the cost of such insoles. In those circumstances I cannot assess whether the claim for ?60 is a proper one, and I regard it as not proved.Pain, Suffering and Loss of AmenityThere is dispute in this case as to whether the operation on the second right toe in February 2015 was as a result of this accident or was referable to an earlier PIP joint fusion in that toe. This is another issue upon which Mr Madan changed his views between the first and second joint reports. In the first joint report, the experts agreed that the requirement for surgery to the right toe was not as a consequence of the index accident (CB530). In the second joint report, Mr Fagg remained of that view, but Mr Madan had altered his view saying that he now feels the requirement for surgery was as a consequence of the accident. From the witness box Mr Madan explained that this was another error on his part, and that he had not understood that the PIP fusion had taken place when Mrs Crosby was only eight years old, and that she had had no difficulties with it in the meantime. I find it surprising that somebody of Mr Madan’s experience should not have established that fact before agreeing in the first joint report that the operation had nothing to do with the accident. However, I accept his explanation and apology for the error.Mr Fagg was forced to concede that he gave no reasoning at all for saying that the requirement for surgery on the right second toe did not occur as a consequence of the index accident in his letter dated 9 April 2018 (CB489- 450). This was another example of where he gave no reasoning for his opinion, although he sought to give that reasoning from the witness box. His interpretation of the x-rays was that the previous PIP fusion had resulted in a malunion so that the toe was angulated and that the lump for which the osteotomy was carried out was at the site of the previous fusion and, therefore, nothing to do with the accident. He then faced the obvious difficulty that this fails to take into account other possible factors which might suggest a different conclusion such as the PIP fusion having happened when Mrs Crosby was age 8 and with no difficulties for a period of over 35 years. So not only did he not give his reasoning in the first instance, nor did he consider the possible range of opinion on this issue. For reasons I have already set out, I prefer the expert evidence of Mr Madan to that of Mr Fagg. I have no hesitation, therefore, in accepting that the surgery to the right second toe in February 2015 was as a result of the index accident. There is no dispute that the surgery to the left big toe was as a result of the accident.There is a dispute about Mrs Crosby’s ongoing symptoms in the form of significant pain and stiffness in her toes. Mr Fagg is of the view that these claimed symptoms are disproportionate to what he would expect and are inconsistent with her employment history after she left the prison service. He points to the fact that she applied to join the police force and now works as a postal worker, walking 7 – 12 miles per day. Similarly there is an issue about the hip and lower back pain which Mrs Crosby says she developed in 2017. Mr Madan believes that Mrs Crosby would have walked on the lateral border of her foot to protect the damaged big toe and that this may have affected the biomechanics of the knee, hip and back. He considers it would take several months of walking abnormally before distant joints would become symptomatic. Accordingly, he feels that the hip pain is secondary to the abnormal walking on the left foot and is therefore attributable to the accident. Importantly, he considers that with intermittent rest, good orthotic treatment in the form of insoles, good footwear and physiotherapy, Mrs Crosby’s symptoms should resolve over a period of 2 to 2 ? years and she should recover (CB 466, paragraph 7.4). Mr Madan was surprised to learn that Mrs Crosby is not using specialist orthotic insoles.Mr Fagg disputes that Mrs Crosby has any altered gait, and says that any hip or back pain is nothing to do with the accident. However, I have the benefit of an expert Mark Elmer, a principal orthotist. His conclusions are that Mrs Crosby has an altered gait as a result of the injuries and that on the left side she is transferring weight to the lateral aspect of the foot, as evidenced by callous, in an attempt to reduce loading forces/pain through the injured left big toe (CB554). In cross-examination Mr Fagg was asked whether he would agree that the opinions of Mr Madan and Mr Elmer come within the range of possible opinions on gait, and whilst he accepted that there is a range of opinions he simply stated “I think their opinion is flawed”. I have no hesitation in accepting and preferring the evidence of Mr Madan and Mr Elmer that Mrs Crosby has an altered gait as a result of this accident, and I reject Mr Fagg’s bald unreasoned assertions to the contrary. However, there is an obvious difficulty in that Mrs Crosby is not availing herself of orthotic insoles. In my judgment this is a failure to mitigate her loss and I must approach this case on the basis of Mr Madan’s opinion that with those insoles, she could make a full recovery within 2 to 2 ? years. The need for orthotic footwear correction was first identified by Mr Madan in his second report following examination of the Claimant on 19 February 2018. In those circumstances Mr Nicholson invited me to find that she would have made a full recovery within two years namely by February 2020. I note that Mrs Crosby was not seen by Mr Elmer until 14 May 2018, but of course that referral was for the purposes of an expert report. Plainly, some time should be allowed for her to seek advice, but it seems reasonable to suppose that she could have been seen by an orthotist or podiatrist by no later than the end of March 2018. Therefore, the period of 2 to 2 ? years for the making of a full recovery would take her to March -September 2020. In my judgment her claim for damages for pain suffering loss and amenity must be limited to the period from the accident through to say June 2020, being the median date in the range. In 2018 Mrs Crosby noticed small swellings on the middle part of the left foot over the planter fascia. Mr Madan deals with this in his third report at CB 463 paragraph 4.8. He indicates that on one view the swelling could be plantar fibroma, which is usually non-traumatic in origin and would not be related to the accident. The other end of the range of opinions is that it could be related to walking on the lateral border of the foot which could cause abnormal stretches on the plantar fascia causing microscopic tears, haematoma scarring and this could be causing the small lumps. He indicates that a conclusive diagnosis cannot be obtained on ultrasound scan and the size of the lumps is such that an operation to perform a biopsy would not be indicated. From the witness box Mr Madan agreed he could not say on the balance of probabilities that either was more likely, he would say it was 50/50. In those circumstances I disregard the lumps in the plantar fascia. I cannot be satisfied on the balance of probabilities that they are attributable to the accident.Mr Nicholson submitted that an award for pain suffering loss of amenity should be ?7000. Mr Ramsay accepted that ?25,000 would be the maximum award. He referred me to the 15th edition of the Judicial College Guidelines for the Assessment of General Damages and, in particular, to Chapter 7 (Q) (d), serious toe injuries. The bracket of damages there is ?9010 up to ?12,900. The injuries in that bracket will be serious injuries to the great toe or crush or multiple fractures of two or more toes. There will be some permanent disability by way of discomfort pain, or sensitive scarring to justify an award within this bracket. Where there have been a number of unsuccessful operations or persistent stabbing pains, impaired gait or the like the award will tend towards the top end of the bracket. This is not a case where there have been a number of unsuccessful operations. On the contrary, the Claimant had surgery on one occasion which has been largely successful, albeit there are ongoing issues with her gait. Nor is this a case of some permanent disability by way of discomfort, given Mr Madan’s opinion that a full recovery could be achieved with the appropriate treatment in the form of specialist orthotics and physiotherapy. I have considered the bracket for moderate toe injuries which include relatively straightforward fractures and involve prolonged minor symptoms and/or the need for surgery resulting in prolonged discomfort and permanent scarring. This bracket makes it clear that only ?5250 or less would be awarded for straightforward fractures of one or more toes with complete resolution or near complete resolution.In my judgment the fractures in this case were not relatively straightforward. It is clear from the medical reports that straightforward injuries would have been expected to resolve within a relatively short period of time which these did not. In my judgment the toe injuries in isolation are at the very top of the moderate toe injury or bottom of the serious toe injury bracket.In addition, Mr Ramsay referred me to the guideline for moderate and lesser hip injuries at Chapter 7(D)(b)(ii) and (c)(i), whilst also acknowledging some symptom overlap from the relevant brackets. In my judgment, the hip and back pain has to be seen as a lesser injury, and whilst recovery is expected by June 2020, the pain was first identified in 2017 and is therefore for a period of more than two years. However, the pain is not constant but is brought on by walking, albeit I recognise that she walks a significant distance in connection with her current employment. Taking all of those factors into account, in my judgment the appropriate award for damages for pain, suffering and loss of amenity is ?12,500. Loss of EarningsPrior to the accident, the Claimant was working at HMP Leeds. She was initially employed on a one-year fixed term contract from 2 July 2012, but in October 2013 she commenced on a permanent contract as an Operational Security Guard. Mrs Crosby’s case is that she had always wanted to be a police or prison officer. She had children at an early stage in her life and was unable to commit to shift work as a result. It was not until 2012 that she was able to commence working in the prison service. (CB90-91, paragraphs 30 -31). While she describes herself as an OSG, Mrs Crosby was not a prison officer. It is her case that she would have been promoted to the role of prison officer in due course. It is clear from the correspondence from the Ministry of Justice to the Defendant solicitors in relation to a Freedom of Information Act request that the MOJ does not recognise a grade of operational security guard, and that they regard the grade as operational support grade. Nothing turns on this, save to make it clear that an operational support grade is plainly not the same as a prison officer. Immediately after the accident, the Claimant’s left toe was placed in a splint and her right foot was placed in a walking boot. She was reviewed in the fracture clinic on 2 July 2014 with continuing pain and tenderness and was using crutches at that time. Her left toe was placed in a plaster cast and a walker boot. On 10 July 2014 she attended an occupational health assessment which determined that she was unfit for work (CB140-141). On 29 July 2014 she was reviewed again at the fracture clinic and given a sick note for six weeks. She was still experiencing pain and stiffness and she was advised to begin mobilising the toe and that it would take several weeks for the pain and stiffness to settle. However the pain and stiffness did not resolve itself and on 8 September 2014 Mrs Crosby’s GP referred her to Mr Morris, a consultant orthopaedic surgeon. On 28 September 2014 Mrs Crosby returned to work on a phased return and was placed on restricted duties. A further occupational health assessment on 14 October 2014 concluded that she was fit to undertake amended duties with reduced hours. It refers to her being able to walk only at a slow pace and with discomfort and that she would have to wear open shoes and cannot wear closed safety type boots or indeed any closed shoe (CB146-147).The Claimant’s phased return was for the period 28 September to 20th October. However, there were difficulties with her return to work. From the witness box she told me the adjusted duties were not properly reduced or adjusted. She was put on her own in the visits area which was a vulnerable area and no one should be there alone. She also mentioned being in a top floor turret office with stone steps up and down which were not easy for her to access. She was also embarrassed with prisoners shouting things towards her because she wasn’t wearing prison boots. She was off work again from 24 October 2014.On 12 January 2015, Mrs Crosby attended a capability hearing at HMP Leeds. At that time she was awaiting an operation on her toes, although she did not know when it would be (CB91, paragraph 34). In her Witness Statement she states that at that hearing she was asked if she would consider a regrade to a Band 2 Administrative role to assist her return to work. From the witness box she explained to me that a Band 2 role involves no interface with prisoners and would include jobs such as working in reception, opening prison mail, and booking visitor appointments. There would have been no change in her pay. In her Witness Statement she goes on to state that she said she would have to discuss this with her doctor but was then told that her employment was terminated on the grounds of medical inefficiency without even awaiting her decision (CB91-92, paragraph 34). From the witness box she told me that when she was offered the regrade, she was absolutely elated she said “Yes, absolutely” and that she wanted to speak to her doctor as she did not know when her operation would be. She pursued an internal appeal process and on 21 April 2015 she was dismissed from her employment on the grounds of medical inefficiency as she was still unable to return to the full duties of her role four months after the original decision to dismiss, and almost one year since her absence first commenced (D1887-1889). On 8 June 2015 she issued a claim in the Employment Tribunal (E2038-2049), and on 24 November 2015 she settled her unfair dismissal claim for the sum of ?10,000. As part of that settlement HMP Leeds made no admission of liability.It is the Claimant’s case that she lost her employment at HMP Leeds as a result of the accident and her consequential injuries. She also claims a sum for loss of congenial employment on the basis that she loved her job at HMP Leeds and it was a job she had always wanted to do. In Mr Nicholson’s skeleton argument for the trial, it was asserted that Mrs Crosby’s employment was terminated for reasons other than her injuries. The inference was that she had refused the offer of alternative work, or at the very least made no decision about it by simply stating she would have to discuss it with her doctor. Indeed, her Witness Statement simply says that she would have to discuss it with her doctor. Mr Nicholson suggested that it was only in the witness box that Mrs Crosby said, for the first time, that she had said she absolutely would accept the Grade 2 role. This is not in fact correct. At D1830-1833 is Mrs Crosby’s notification of appeal following dismissal for medical inefficiency. In that document she states that she was offered a downgraded role and said she would take up the offer, but before she could take up that position she would need to speak to her GP to ensure the role would allow for a phased return to work. In his closing submissions, very sensibly, Mr Nicholson did not seek to persuade me that Mrs Crosby’s employment was terminated for reasons other than her injuries. However, he submitted that the Defendant in this case cannot be liable for any loss of earnings because her employment was wrongfully terminated by an independent third party, namely HMP Leeds. Mrs Crosby’s case was that she had been unlawfully dismissed and Mr Nicholson submitted that amounted to a break in the chain of causation. He accepted that the Defendant would be liable for loss of earnings between the date of the accident and termination of the employment in the sum of ?2980.24, being the sum accepted in the Defendant’s counter schedule.In response to this, Mr Ramsay made a number of points. Firstly, there is no finding anywhere that the employer acted unlawfully, and no such admission was made in the settlement of the employment tribunal case. Secondly, despite repeated requests from the Claimant’s lawyers, no authority has been produced by Mr Nicholson to support this argument which was raised both in the counter schedule and in the trial skeleton in May of this year. Thirdly, Mr Ramsay submitted that the Claimant is entitled to be put back in the same position as if the tort had not been committed. Since the Claimant was dismissed on the grounds of medical inefficiency which inevitably relates to her injuries, he submitted that but for the accident, she would not have been dismissed. I accept Mr Ramsay’s submissions in this respect. On the evidence available to the court, the question of Mrs Crosby’s continued employability at HMP Leeds arose solely as a consequence of her injuries. This is an entirely foreseeable consequence flowing from the tort and I do not consider there to be any break in the chain of causation.It is the Claimant’s case that she would have been promoted to become a prison officer. In her Witness Statements she speaks as if she was already a prison officer (See CB93, paragraph 39). In her second Witness Statement she speaks of aspirations to work in the prison service (CB178, paragraph 25), and also refers to the possibility that if she had continued working at HMP Leeds there would be lots of jobs available to her as she got older, including control room operator, operating the switchboard, opening and shutting doors and gates in various parts of the prison or becoming a support services administrator (CB 179, paragraph 26). At CB 182, paragraph 33 Mrs Crosby states that had she stayed on HMP Leeds she would have had several opportunities available for promotion and career progression, which could have included working within specialist projects such as rehabilitative programs for certain groups of inmates, secondments to other establishments and managerial positions. Nowhere does she expressly states that she would have been promoted to prison officer grade. She relies on the fact that she was initially employed on a temporary 1 year contract and, that of the 20 so employed, she was one of 4 kept on and offered permanent employment. That is to her credit, but it does not support the assertion that she would have been promoted to the rank of prison officer. No doubt that was her aspiration, but that is not the same as saying she would have successfully achieved that. Only from the witness box did she say that she had been put forward by line governors to go forward to a higher grade. She said she had three commendations from the leading governor for her work, and that her line managers told her that they would have put her forwards for promotion to prison officer grade with a higher salary. Whilst I recognise that she was dismissed from the prison for medical inefficiency and that she pursued a claim against HMP Leeds, neither of those factors would have prevented her obtaining evidence to confirm that her line managers had told her they would put her forward for promotion. Whilst commendations are very much to her credit, they do not necessarily mean that she was suitable for promotion. In the Schedule of Losses it is asserted that the position of prison officer is broadly the same as OSG save that, for example, a prison officer carries a knife (in order to cut ligatures) and carries keys (CB37). Whilst Mrs Crosby has signed the Schedule of Loss under a Statement of Truth, there are obvious difficulties with some of the matters in the Schedule which I have not allowed, and in any event the Schedule is not the appropriate place in which to give evidence. There is no evidence to support that description comparing the roles of OSG and prison officer. I have no doubt at all as to Mrs Crosby’s aspirations, but on the evidence, I am not satisfied on the balance of probabilities that Mrs Crosby would have been promoted to the rank of prison officer. The claim for past loss of earnings is calculated on the basis of earnings at OSG level and, accordingly, I accept the Claimant’s calculation of loss of earnings set out at CB 29-34, and I award the sum of ?7096.30 for past loss of earnings.Subrogated LossThis was not disputed and I allow the sum claimed of ?2980.00.Loss of Congenial EmploymentMrs Crosby also seeks an award for loss of congenial employment (CB831-832). The Defendant challenges this, asserting that “On the evidence there is no basis for even a modest award” (CB75, paragraph 22). This is an award which goes over and above the financial loss caused by the loss of employment. It is designed to compensate for the disappointment of not being able to continue with a chosen career. Mrs Crosby’s evidence is that she had always wanted to work in the police service or the prison service. That is supported by the fact that after she lost her job at HMP Leeds, she applied for a position at HMP Newhall and she made two applications for positions with the police force. Unfortunately, none of those applications was successful. In Paragraph 31 of her Witness Statement (CB91) Mrs Crosby explains that when she realised there was a position available at HMP Leeds, she discussed this with a husband because she would be on a very low salary. She and her husband discussed whether she could afford to work for such a low salary and they agreed that she could. While she does not say so in terms, it must follow that she was previously employed on a salary greater than the salary being offered at HMP Leeds. In Paragraph 32 she describes putting on her uniform for the first time and doing a job she was proud of doing. Finally she says she was doing what she wanted to do. She felt happy because she was serving a purpose in the community and working for the greater good (CB91). In her second Witness Statement she gives more detail as to what this career meant to her (CB 181, paragraph 31). None of that evidence was challenged in cross-examination. What was challenged was the question of whether she was likely to be promoted. Accordingly, in my judgment, this is a case where an award for loss of congenial employment is entirely appropriate. Mrs Crosby regarded this as a vocation, in her words “a job where I had real job satisfaction as I was directly touching the lives of others” (CB 181, paragraph 31). Mr Ramsay referred me to the case of Dudley v Guaranteed Asphalt Ltd [2013] EWHC 2515 in support of his submission that awards usually range between ?5000 at the lower end up to ?10,000 higher end of the range. He invited me to make an award of between ?7500 and ?10,000 in this case. In my judgment, the award in this case falls towards the bottom of the bracket. Mrs Crosby was 42 years old when she commenced employment with the prison service, and whilst she plainly had the prospect of working for over 20 years before her retirement, she is nevertheless in a very different position from a younger person suffering loss of congenial employment. In my judgment the appropriate award in this case is ?6000.Past Travel and Past MedicationMrs Crosby claims ?100.00 for past travel, a claim which is wholly unparticularised. However, in the interests of proportionality the Defendant admits that claim and that sum will be awarded. Similarly, the claim for past medication in the sum of ?150.00 is wholly unparticularised and is the Claimant’s estimate of sum spent on painkillers and other prescription medication. For reasons of proportionality the Defendant accepts a claim for ?100.00, and, in the absence of proper proof of this head of claim, the sum I award is ?100.00.Future Loss of EarningsIn the Claimant’s final Updated Schedule of Losses there are two alternative calculations for future loss of earnings, one based on her having been promoted to prison officer by the date of trial producing a figure of loss of ?42,261.00 (CB37-38), and one on the basis that she would have remained at OSG level, producing a loss of ?12,631.92 (CB38). In the Counter Schedule, the calculations as such are not challenged. However, the schedule asserts that the Claimant is required to prove that (i) she would have been promoted (which I have already dealt with) (ii) that she would have earned ?16,462 net as an OSG and (iii) that she currently earns ?15,586.30 net per annum (CB78, paragraphs 53-55). The latter two points were not explored with the Claimant in evidence. The basis for the ?16,462 is set out at CB 31(vi), and this was not challenged by Mr Nicholson in his closing submissions. On the question of promotion within the Royal Mail, Mrs Crosby was cross-examined about this. She said her career path was now very bleak and that the Royal Mail are reducing the number of staff. She is currently working 30 hours. She said that there was no prospect of going further. Significantly, in my view, she added that she did not want to go further in Royal Mail because it was not her intended career and is simply a means to an end. In his closing submissions, Mr Nicholson pointed to the fact that with treatment in the form of physiotherapy and specialist orthotics, Mrs Crosby should be fully recovered and back to normal, he submitted by February 2020, but as I have found in paragraph 74 above, by June 2020. He invited me to limit Mrs Crosby’s future loss of earnings to that period of time, that is a period of some six months. (In his submissions he said 15 months to February 2020 which was clearly a mistake as it would take the matter to February 2021). He also pointed to the fact that Mrs Crosby is working part-time. He said there is no evidence one way or the other as to whether this is by choice, or as to whether Mrs Crosby cannot get more than 30 hours work, or physically cannot do more than 30 hours. He submitted that is not open to Mrs Crosby to say to the Defendant that she wants to work part-time and that they have to pick up the bill for that. In my view there is force in the submission that in the absence of evidence that Mrs Crosby has no other prospects, she cannot effectively work part-time at the Defendant’s expense. On the basis of the findings I have made, there is also force in the submission that she would be able to work full-time from June 2020. While she says that there is no prospect of advancement at the Royal Mail, and whilst her evidence was that this was the only job she was able to get, this was at a time when she was still suffering the effects of the accident as I have found them to be. However, in assessing future loss of earnings, I have to do so on the basis that she will be fully fit and able to take up any form of employment from June 2020. The difference between Mrs Crosby’s current net Royal Mail Salary, and what her net salary would be now as an OSG at HMP Leeds is ?876 per year (CB38). Even if she had been promoted to a prison officer, the net difference is ?3030.70 (CB37: ?18,517.00 - ?15,486.30). Given that Mrs Crosby current earnings are based on only 30 hours a week, she is plainly earning more per hour with Royal Mail that she would be earning as an OSG, or as a Prison Officer (on the assumption that net pay for 40 hours at Royal Mail would be ?20,648 representing an increase by one third as much again for an increase from 30 to 40 hours). In my judgement I have no evidence upon which I can properly reach the conclusion that Mrs Crosby does not have the potential to earn more than her current Royal Mail earnings in the future. Whilst I accept that there may not be further hours at Royal Mail, I was struck by her answer that as far as she was concerned this was a means to an end, and not employment in which she wished to seek advancement because it was not her chosen career. That does not rule out the possibility that advancement might be available, with the Royal Mail or elsewhere. I have come to the conclusion on the evidence that the future loss of earnings claim is not properly made out and has to be limited to the period to June 2020 on the basis that by then, with proper mitigation of her losses, Mrs Crosby would have made a full recovery, and would then be able to seek full-time employment. It is not open to her to simply refuse to consider advancement because she is not in her chosen career.Given that I have rejected the evidence as regards the likelihood of promotion (although I shall return to this when considering pension issues below), given that I have found that the loss of future earnings will only run until June 2020, I consider it entirely proper when considering loss of future earnings to disregard the claim for the loss of the chance of promotion,. In those circumstances, in my judgment the appropriate period of loss is from trial to June 2020, a period of six months at ?876.00 per annum, producing a future loss of earnings of ?448.00.Loss of Future PensionIn the final Updated Schedule of Loss, four alternative calculations are put forward for loss of future pension, the first on the basis that Mrs Crosby secured promotion to Prison Officer with service to age 67, producing a claim of ?166,833.00 (CB39-42); the second on the basis of no promotion and retirement at 67 within the prison service as OSG or equivalent, producing a calculation of ?140,608.00 (CB42 -43); the third based on no promotion, retirement from the prison service at 60 followed by employment at Royal Mail to age 67, producing a calculation of ?99,512.00; and finally a calculation based on no promotion and retirement from the prison service at age 55 followed by employment at Royal Mail producing a calculation of ?70,650.21 (CB 44). In his closing submissions Mr Ramsay made number of points about the alternative calculations put forward by the Defendant in the counter schedule. He submitted those calculations failed to understand the difference between a civil service pension (at HMP Leeds) and a money purchase pension (at Royal Mail). There is also criticism of the Defendant’s assertion that Mrs Crosby would only have worked in the prison service for a total of 10 years. Whilst there is validity in Mr Ramsay’s submissions on those points, they do not meet the obvious difficulty which arises out of my findings that Mrs Crosby could and should have made a full recovery by June 2020, after which date she would be able to work full-time. None of that is factored into the calculations put forward in the Schedule.Mr Nicholson submitted that there is an obvious degree of uncertainty as to the future. He pointed to the fact that with treatment in the form of physiotherapy and specialist orthotics, Mrs Crosby should be fully recovered and back to normal, he submitted by February 2020, but as I have found in paragraph 74 above, by June 2020. In those circumstances he submitted that at that stage she should return to full-time work, and that it would be open to her to try and obtain a job in the Civil Service. He submitted that in any event she would be able to return to full-time employment which would boost her pension, and that she should find a job to do so. He submitted that a proper assessment of future loss of pension is ?5000. This he said was based on plumping for a figure, since he cannot plump for a multiplier because there are no figures against which a multiplier can properly be applied because there is no proper evidence as to future loss of earnings and/or the impact of future earnings on the pension Mrs Crosby will in fact receive. It seems to me inevitable that I cannot properly calculate future loss of pension given the findings I have made that Mrs Crosby should be fully recovered by June 2020, and that there is no reason why she should simply choose to work part-time at the Defendant’s expense. She may regard her current employment as simply a means to an end, but that is not a proper approach to her obligation to mitigate her losses. However, I do recognise the force in the submissions relating to the significant difference between a Civil Service pension based on a percentage of final salary from retirement for life, as opposed to a money purchase scheme outside the Civil Service. Set against that I have to recognise the possibility that Mrs Crosby could obtain future employment in the Civil Service, albeit not necessarily within the prison service. Whilst I have no evidence that is a possibility, nor do I have any evidence to suggest that she would be unlikely to be offered employment in the Civil Service. She was dismissed for medical inefficiency, an inefficiency which should be fully recovered by June 2020 with proper orthotic insoles and treatment. Unfortunately, her failure to properly mitigate her losses places me in the difficult position that I have no proper figures from which I could adopt a multiplier and multiplicand approach. I am satisfied that but for the accident and the consequent dismissal for medical inefficiency, Mrs Crosby would have stayed in the prison service until age 67. Whilst I have found that there is no evidence that on the balance of probabilities she would have been promoted, I recognise that when considering the longer term of 17 years from now until she reaches the age of 67, there is at least the loss of a chance of that promotion. That inevitably impacts on the Civil Service pension she would have received had she remained. Taking all of those factors into account, and accepting that as a result of the findings I have made, I have no choice but to plump for a figure for loss of pension, doing the best I can on the information currently available to me, I consider that the proper award for loss of pension is ?15,000. This is higher than the figure suggested by Mr Nicholson, a figure which in my judgment does not properly address the uncertainties and the significant difference between a Civil Service pension and a money purchase pension. However, it is significantly lower than even the lowest calculation put forward on behalf the Claimant, but that is the inevitable consequence of my findings that Mrs Crosby should have mitigated her losses such that she should be returned to full fitness from June 2020 and that it would then be open to her to obtain full-time employment and/or advancement.After circulation of the judgment in draft, Mr Ramsay invited me to clarify whether I required further assistance with the calculations for pension loss. He reminded me that during closing submissions he offered to provide me with further calculations and to assist generally with quantification upon my findings of fact. I am grateful for the offer of further assistance. However, for the reasons set out in paragraph 104, I remain of the view that this is a case in which I have no proper figures from which I could adopt a multiplier and multiplicand approach. I have indicated my view that this case has to be approached on the basis that Mrs Crosby could and should be back in full time employment by June 2020, and that in order to mitigate her loss she should consider advancement within Royal Mail. There is no evidence as to what her potential earnings might be in those circumstances, and thus no evidence as to likely future pension from Royal Mail, or indeed any other employer. It is not appropriate to re-open the evidence to address my findings, and Mr Ramsay does not suggest that I should do so. In summary, I make the following awardspain suffering and loss of amenity ?12,500.00loss of congenial employment ?6000.00past loss of earnings ?7096.30subrogated loss ?2980.24past care and assistance ?4810.68past cost of additional shoes?150.00past travel?100.00past medication?100.00future loss of earnings?448.00future loss of pension ?15,000future treatment NILTOTAL: ?49,185.22 I invite Counsel to agree the appropriate interest calculation on the above figures.After circulation of this judgment in draft, Mr Ramsay sought clarification of certain of the above awards on the basis that the figures are less than those suggested by Mr Nicholson in closing. He asked me to indicate whether the sums suggested by Mr Nicholson were considered but rejected nevertheless. In closing Mr Nicholson suggested the sum of ?450.00 for shoes, travel and medication whereas I have awarded a total of ?350.00 for those three items. Travel and Medication are awarded in the sums conceded in the Counter Schedule (See paragraph 96). Thus, Mr Nicholson allowed ?250 for shoes, whereas I have awarded ?150 for shoes. My award is based on the evidence as set out in Paragraph 67, and in calculating the award based on that evidence, I have rejected the higher sum suggested by Mr Nicholson.In relation to physiotherapy costs, I have rejected this head of claim entirely for the reasons set out in Paragraph 66, and in doing so have rejected the sum of ?480.00 suggested by Mr Nicholson. In relation to future loss of earnings, I have allowed ?448.00, whereas Mr Nicholson suggested ?1500 if I were to accept Mr Madan’s evidence, which I have. However, again my figure is based on the evidence and my reasons for awarding ?448.00 are fully set out in Paragraphs 92 -100, and in reaching that figure I have rejected the higher figure suggested by Mr Nicholson. ................
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