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IN THE SHEFFIELD COUNTY COURT Claim No: B28YM485

BETWEEN:

SUSAN SWAIN Claimant

- and -

ROTHERHAM NHS FOUNDATION TRUST Defendant

JUDGMENT

Introduction

1. The Claimant is now 61 years old, having been born on the 5th May 1958. She is married

to Adrian. They have had a long married life together, facing the Claimant’s undoubted

trials without self-pity or complaint. The Defendant is the Trust responsible for the

various places at which the Claimant was treated.

2. In 2009 the Claimant had a bunion on her left big toe. The bunion needed surgery.

Surgery was performed by Mr Gary Boon, a consultant podiatric surgeon employed by

the Defendant. Mr Boon first performed surgery on the Claimant’s big toe in June 2009.

No complaint is made about that surgery. However, it was ultimately unsuccessful in

relieving the Claimant’s pain, and in 2010 she again consulted Mr Boon. That

consultation led to further surgery on 27th August 2010. That surgery was also

unsuccessful and the subsequent chain of events led to the Claimant losing first her left

great toe and then her left leg below the knee. The complaint she makes is about that

further consultation and surgery.

3. The surgery performed in August 2010 was a Keller’s Arthroplasty (Keller’s). This is a

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procedure whereby about one third of the proximal phalanx of the great toe (in this case

the left) is excised by being dissected away from the surrounding tissue. That leaves a

gap. Although there is a dispute in this case about whether soft tissue was then

interposed in the gap, there is no dispute that this is what was intended to happen here.

The purpose is to provide a fibrous joint between the metatarsal head and the proximal

phalanx, which preserves some function, whilst stopping the pain.

4. In brief, the Claimant makes three allegations about this surgery. First, that the Keller’s

should never have been offered to her because it was so unsuitable for her that it was

negligent to offer it. Secondly, that she did not give informed consent to that surgery

because the leaflets she was given and the advice offered in consultation – itself

something about which there is a dispute of fact – was inadequate in failing to draw

attention to the likely outcome, and did not recommend the fusion operation that she

ought to have had. Thirdly, that the operation itself was negligently performed, because

the soft tissue that should have been interposed between 2 bones so as to create a false

joint and prevent painful bone on bone friction, was not interposed.

5. The Claimant says that if her first or second allegations are made out, the entirety of the

subsequent chain of events is caused by the Defendant’s negligence. Although those

allegations are not, strictly speaking, alternatives, if I were to find that the first was made

out, the second would add nothing. If I were to find in the Defendant’s favour on the

first and second allegations, the Claimant says that the negligent performance of the

operation is in any event causative because a properly performed procedure – even if

negligently offered and not genuinely consented to – would have ensured relief from

pain. The subsequent chain of events flows from the next procedure carried out – as a

direct consequence of the negligently performed procedure being negligently performed

– which in turn led to a deep lying infection, to which all the following events can be

traced. But for the negligent procedure, the Claimant would have been pain free and

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complication free.

6. The Defendant vigorously contests every issue. The Defendant says that the operation

was a perfectly proper one to offer and is one which a respectable body of medical

opinion would have offered, this meeting the test in Bolam v Friern Hospital Management

Committee [1957] 1 WLR 582 as explained in Bolitho v City and Hackney HA [1988] AC 232.

It says that the Claimant gave fully informed consent to that procedure and that the

operation was properly performed, with the medical notes indicating – albeit not

expressly stating – that the soft tissue was interposed in the usual way.

7. The Defendant disputes causation on the basis that the operation was properly offered

did succeed. The subsequent breakdown was a foreseeable risk, not a consequence of

negligence. That, again, is based on facts that the Claimant disputes and about which I

must decide. The Defendant also posits, albeit gently, that even if the soft tissue was not

interposed, there is a study indicating that this makes no difference as to outcome.

Alternatively, the Defendant says that if the Claimant’s consent was not properly

obtained, she would, in any event, have declined any other surgery.

8. The parties have agreed quantum subject to liability and causation at £870,000.

Approach to the Evidence

9. Before setting out my findings, it is appropriate that I say something about my approach

to the evidence in this case. Both the Claimant and Mr Boon – together with the

Claimant’s husband – gave factual evidence in the case. There were, in addition, 4

volumes of factual evidence, largely consisting of the clinical notes. About half this

evidence was, in the event, irrelevant because it went to quantum, which the parties then

agreed.

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10. That means I was very much in the position of Leggatt J (as he then was) in Gestmin

SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560. As is well known, at paragraphs

15-22 he set out the modern approach to assessing evidence:

15 An obvious difficulty which affects allegations and oral evidence based on recollection of events which

occurred several years ago is the unreliability of human memory.

16 While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently

absorbed the lessons of a century of psychological research into the nature of memory and the unreliability

of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are

not aware of the extent to which our own and other people's memories are unreliable and believe our

memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the

stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be

accurate; and (2) that the more confident another person is in their recollection, the more likely their

recollection is to be accurate.

17 Underlying both these errors is a faulty model of memory as a mental record which is fixed at the

time of experience of an event and then fades (more or less slowly) over time. In fact, psychological

research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever

they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or

learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact

misleading, reflecting as it does the misconception that memory operates like a camera or other device that

makes a fixed record of an experience.) External information can intrude into a witness's memory, as

can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can

come to be recalled as memories which did not happen at all or which happened to someone else (referred

to in the literature as a failure of source memory).

18 Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs

are revised to make them more consistent with our present beliefs. Studies have also shown that memory

is particularly vulnerable to interference and alteration when a person is presented with new information

or suggestions about an event in circumstances where his or her memory of it is already weak due to the

passage of time.

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19 The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of

litigation is such that witnesses often have a stake in a particular version of events. This is obvious where

the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the

proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness

statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least

not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire

to give a good impression in a public forum, can be significant motivating forces.

20 Considerable interference with memory is also introduced in civil litigation by the procedure of

preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long

time has already elapsed since the relevant events. The statement is usually drafted for the witness by a

lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor

does not say. The statement is made after the witness's memory has been “refreshed” by reading

documents. The documents considered often include statements of case and other argumentative material

as well as documents which the witness did not see at the time or which came into existence after the

events which he or she is being asked to recall. The statement may go through several iterations before it

is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and

review documents again before giving evidence in court. The effect of this process is to establish in the mind

of the witness the matters recorded in his or her own statement and other written material, whether they

be true or false, and to cause the witness's memory of events to be based increasingly on this material and

later interpretations of it rather than on the original experience of the events.

21 It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-

examination if they understand the difference between recollection and reconstruction or whether their

evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least

two ways. First, they erroneously presuppose that there is a clear distinction between recollection and

reconstruction, when all remembering of distant events involves reconstructive processes. Second, such

questions disregard the fact that such processes are largely unconscious and that the strength, vividness

and apparent authenticity of memories is not a reliable measure of their truth.

22 In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial

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case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in

meetings and conversations, and to base factual findings on inferences drawn from the documentary

evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose –

though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the

opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to

gauge the personality, motivations and working practices of a witness, rather than in testimony of what

the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of

supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on

that recollection provides any reliable guide to the truth.

11. To my mind, that approach is plainly applicable to this case. That is so particularly

because these events are now of considerable age, and because the Claimant has had

continual problems with her foot, leading to her current unhappy position. She has,

plainly, had numerous encounters with the medical profession both before and after this

event and Mr Boon conducted a procedure on her foot both before and after this event.

Although Mr Baker, for the Claimant, criticised the clinical records as being not so full as

they might be, there was no suggestion that they did not reflect reality, or that they were

not contemporaneous, or that they were deliberately false.

12. I conclude, therefore, that the clinical notes are likely to be the most reliable guide to the

events described within them, and that the oral accounts of the witnesses are to be

treated as secondary in terms of reliability.

13. That accords with the judgements I formed of the factual witnesses during the case. It

was plain to me that no one was attempting to mislead me, or to tell me lies. However,

that does not mean that the evidence I was given was necessarily reliable. My assessment

of the Claimant, and to a lesser extent of Mr Swain, was that the enormity of what has

happened to the Claimant has tended to overwhelm them. For example, the Claimant

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clearly recollects bits of bone being dissected out of her foot during the operation. Mr

Boon agrees that this is what happened. However, the Claimant has decided, in her own

mind, that this is either an example of – or more likely proof of – the fact that the

operation went wrong. That is incorrect in fact, but there is no doubt that the Claimant

has that impression. Again, the Claimant’s recollection is at odds with the chronology in

the medical notes. There is no doubt in my mind that the Claimant is genuinely trying to

assist me, but, equally, no doubt that she is wrong.

14. In my view the Claimant was a vulnerable witness. Although this was not foreshadowed

in the preparation for the trial, she required frequent breaks, and those breaks were taken

every three quarters of an hour. She found more difficulty than is usual in adult witnesses

in dealing with compound questions, although she could deal adequately with tag

questions. She had evident difficulty in articulating complex formulations, frequently

defaulting to assertions that bore on only part of the answer. I am in no position to judge

the aetiology of this condition, but I note that the Claimant suffers from fits during

which she can lose physical control. Not unnaturally this upsets her and, in my

judgement, it has affected her confidence. Moreover, it was clear that the Claimant had

been warned about going off at a tangent during her evidence. Such warnings are

frequently given and I make no criticism of the practice at all. But in this case, the

Claimant was constantly apologising for, as she put it, “going on”. Again, that was both an

example of her difficulty articulating complex ideas and a further impediment to her

attempts to express them.

15. I have therefore adopted an approach to the Claimant’s evidence, which I discussed with

Ms Whittaker, for the Defendant, in final submissions and which I understood her to

accept as fair. Namely, that I would – obviously – take note of the Claimant’s evidence

of fact and reach findings as to its reliability both generally and specifically. My general

findings are recorded above. It may be necessary to return to specific findings. However,

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I would not penalise the Claimant for not giving evidence of matters that might

otherwise constitute a lacuna in her case, unless I was satisfied that it was within the

Claimant’s capabilities to be able to understand the need for that evidence and to

articulate it whilst in the witness box.

16. Insofar as Mr Boon’s evidence is concerned I also consider that Gestmin provides the

appropriate test. Mr Boon struck me as a competent but defensive witness. He was

plainly concerned at the allegations made against him and was disturbed by them. His

notes were not of a significantly poor standard – and were not criticised as such – but

they had gaps. For example, the note says that the risks and benefits of the Keller’s

procedure were discussed on 27th July 2010 but not exactly what was said. Mr Boon

attempted to recall the conversation. The note aided him, but the details he added were

new, and it will be necessary for me to assess their reliability. Mr Boon initially placed

some reliance on the Claimant being a smoker as supporting his description of the risks

and benefits of the various options on 27th July 2010. This is capable of being a relevant

point: smoking increases the risk of non-union and everyone agreed that one option for

the Claimant was a fusion operation. But the contemporaneous note of 27th July 2010

did not mention smoking.

17. This is an example either of memory being unreliable, or of a deliberate attempt to

mislead. In my view it is not such a deliberate attempt. Not only was any such attempt

doomed to failure, but Mr Boon very quickly acknowledged the problem and conceded

that he might, in oral evidence, be giving the issue more importance than it had at the

time. That was in the face of a direct challenge that he was taking a makeweight factor

and exaggerating its importance. It was an honest response. However, it serves to

emphasise the matters to which Leggatt J (as he then was) drew attention in Gestmin.

Consequently, I have examined Mr Boon’s evidence with care against the clinical notes,

and have been cautious about accepting later explanations, unless there is something in

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the clinical notes, which can anchor those explanations to the occasion on which the

information was supposed to have been given.

18. Insofar as the experts are concerned, I found both helpful in terms of their clinical

explanations. Mr Chell was, in my view, anxious to persuade me that his view was

correct. That is, perhaps, because the prospect that Keller’s was negligently offered was a

difficult one to advance. Mr Smith was laconic to the point of occasionally needing a

verbal prod to put his own position. But I am satisfied that both were attempting to

assist me with the expertise and personal knowledge. Mr Chell was criticised for not

referring to literature; Mr Smith for drawing too much from it. In my judgement, neither

criticism adds much, amounting to no more than the proposition that the experts might

perhaps each have approached matters a little differently. That is, as it often is, almost

certainly true. But it does not, in my judgement, serve to undermine their opinions to the

extent that I cannot rely upon them, or to assist me to prefer one to the other.

19. On this topic, I ought finally to say this: this was a complicated case. The issues

regarding negligence were multi-fold, causation is not straightforward and quantum was

complicated. The evidence was often divergent, and occasionally depended on inference.

Both counsel were of enormous assistance. The issues were presented in a clear, sensible

and straightforward way. Agreement was sought on all manner of matters, and that

agreed in respect of quantum saved an enormous amount of court time. Cross-

examination was to the point and the balance between assertively putting a case and

examining the issues was finely and properly judged. My, probably too frequent,

interruptions and questions were addressed head on. In my view, the case would have

been impossible to decide justly without proper representation, but the skills on show

went considerably further than that. It would be remiss for this Judgment not to contain

a genuine expression of gratitude and appreciation for the help I was given.

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My Approach to the Issues.

20. In her final written submissions Ms Whittaker suggested the following order of

consideration, from which Mr Baker did not dissent. I intend to adopt that approach.

1. Was Keller’s Arthroscopy (Keller’s) an appropriate procedure per Bolam/Bolitho?

If yes, D succeeds/go to Q2.

If no, C succeeds and go to causation.

2. Did C consent, in the legal sense of that word?

If yes, go to Q3.

If no, C succeeds and go on to causation.

3. Was there a negligent failure to perform soft tissue interposition during Keller’s?

If no, D succeeds.

If yes, C succeeds and go to causation.

21. In my view, the first question is almost exclusively a matter for the experts. I remind

myself that I do not have to accept the expert evidence on any topic, but that it is likely

to be of considerable assistance to me in determining matters about which I do not

myself have any expertise. The second question is a matter of mixed fact and law. It

requires consideration of what a patient is properly to be told, a determination of what

the Claimant was told and an assessment of whether the treatment of the Claimant came

within a reasonable range. That exercise is also informed by the experts’ evidence, but no

part of it is exclusively dependant on that evidence. The third question would have been

one of expert evidence, had it not been for the agreement that the factual question of

whether the Claimant had pain immediately after the operation – or close enough to it

for the pain caused by the operation itself to have reasonably ended – will determine it.

If the Claimant had pain immediately after the operation then that pain was, it is agreed

caused by bone on bone (Mr Chell) or bone on cartilage (Mr Smith) articulation. These

are, for these purposes, the same thing, and the pain would indicate that the operation

was negligently carried out.

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22. Insofar as causation was concerned, Ms Whittaker suggested the following, again without

dissent from Mr Baker. I intend to adopt that approach as well.

4. What would have been the outcome for C if Keller’s had not been recommended?

This depends on:

What the likely alternative treatments would have been.

The choice that C would have been likely to make.

The likely outcome of any such procedure.

5. If Keller’s treatment was a reasonable alternative, but the counselling process with

regard to it was deficient, what would C have done if provided with adequate

information? This depends on:

What an adequate warning would have been.

How such adequate warning would have impacted the choice that C would have

been likely to make.

The likely outcome of any procedure (if different from Keller’s) to which C would

have consented.

6. If soft tissue interposition was not achieved, what injuries has C suffered as a result?

This depends on:

Whether there was bone-on-bone articulation and, if so, when it began.

Whether the pain that C reported was a consequence of bone-on-bone articulation

or some other process.

Whether Keller’s with a soft tissue interposition would have achieved a painless

outcome.

23. The fourth question is largely a matter of fact. It is agreed that conservative treatment

was not a genuine option, because it could never have relieved the Claimant’s pain. Mr

Chell dissented mildly from this, but in my judgement it is plainly correct. It is agreed

that the intra-operative findings (at least) meant that a revision of the previous procedure

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was not appropriate, because the Claimant’s joint was too damaged by arthritis. That

leaves, Keller’s, implant, fusion or, perhaps a cheilectomy. The latter was not pleaded or

really adverted to in the experts’ reports, but it made an appearance in oral evidence and

I have considered it. The issues are what the Claimant would have done and what would

have happened. That last is also an issue that divided the parties on the basis of the

burden of proof.

24. The fifth question is, again, largely a question of fact. The experts differed on the advice

to be given, but in my judgement, these were matters of emphasis rather than principle.

The issue of the burden of proof again divided the parties.

25. The sixth question resolved, as I have already said, into the question of whether the

Claimant suffered immediate post-operative pain. If so causation is made out.

26. Plainly, arriving at the actual result – whoever succeeds – does not require me to

determine all the issues. But in deference to the arguments and the parties, and in an

effort to ensure that the losing party understands the reasoning to be applied to all the

issues, I have done so.

Was Keller’s an Appropriate Procedure to Offer?

27. In my judgement, Keller’s was an appropriate procedure. On this matter, I preferred the

evidence of Mr Smith to Mr Chell for the following reasons:

a. Mr Smith told me so. He was clear that Keller’s was not a procedure he would

perform for very minor arthritic change, but he would perform it, “even for minor

arthritic change”. He agreed that particular procedures came and went in popularity,

but that does not, in my view, indicate that performing a less popular procedure is

negligent. He also agreed that Keller’s did not suit someone who was going to make

a significant functional demand on the toe, but specifically excluded the Claimant

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from the category of those who would. Mr Smith’s answer to the point about the

literature not assisting him was, in my view persuasive. He said, “O’Doherty can be

criticised, but he does say Keller’s gives a decent result. … I tried to show that Keller’s was a

recommended procedure and had a satisfactory outcome”. I agree that the literature is capable

of supporting both those statements. And I bear in mind Lord Brown-Wilkinson’s

view in Bolitho p243 that, “I emphasise that in my view it will very seldom be right for a judge

to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.

… It is only where a judge can be satisfied that the body of expert opinion cannot be logically

supported at all that such opinion will not provide the benchmark by reference to which the

Defendant’s conduct falls to be assessed.”

b. Mr Smith also pointed out that fusion was not an option in fact, because the

Claimant had refused it. I have separated this issue from the consent issue, because

– of course – if the Claimant’s consent was not properly obtained, that is the

negligence. This discussion must proceed on the basis that the consent was properly

obtained.

c. Once fusion is ruled out, the experts agreed that fusion was not an option at that

time. That would make Keller’s the only option properly left. Not only was

cheilectomy an option that arrived on the table late, but Mr Smith was clear that it

would not assist. The Claimant had both hallux rigidus (an arthritic toe) and hallux

valgus (a bent toe). Cheilectomy would not correct the latter condition. But it was

the hallux valgus that caused the Claimant to revisit Mr Boon in 2010, after the first

procedure, in 2009. As the clinical notes record (C1/1.30), “I’m smashing. I think my

toe is coming across though, I haven’t got a pain where my bunion was it’s just a bit tender across

my toe”.

d. Mr Smith considered that the combination of hallux rigidus and hallux valgus took

the Claimant out of the normal position, in which fusion would automatically have

been the first choice. In fact, he accepted – as did Mr Boon – that fusion would

have been the preferable procedure, but the Claimant had declined fusion, and

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Keller’s would have been his alternative. Mr Smith was not confusing this issue with

that of proper consent and suggesting that a negligent option can be offered

because the non-negligent option was refused: He was specific that, “In order to

discuss Keller’s it would have to be appropriate”. It was the combination of conditions that,

in his view, contributed to that appropriateness.

e. Nor, in Mr Smith’s view, was fusion an automatic choice; even had the Claimant

wished it. The Claimant was a smoker who had regularly tried and failed to give up.

The risk of non-union was much higher in a smoker (the evidence was 2.7 times).

In Mr Smith’s view a surgeon today would not perform fusion unless the patient

stopped smoking first. That may not have been true in 2010, of course. But it is an

indication that although fusion was the first choice, it was not automatic, nor was

offering Keller’s negligent.

f. The one piece of factual evidence, which has a minor impact on my decision on this

issue, was that the Claimant had seen many clinicians since 2010. On her own

account, there was considerable criticism of the implant operation, which is not the

subject of these proceedings and which came after the Keller’s. But no other

clinician had criticised the Keller’s procedure or the fact that it was offered.

28. I have set out the Defendant’s evidence first, because the nature of the burden of proof

means that it was this evidence the Claimant had to overcome in order to succeed on

this issue. In my judgement she comprehensively failed to do so. Mr Chell made an all-

out attack on the decision to offer Keller’s. However, I did not find his evidence

persuasive for these reasons:

a. Mr Chell told me he derived his view from his experience, the outcomes on the

patients on whom he performed the procedure and the literature. On examination,

each of these supports fell away. Mr Chell did not offer the operation to those with

any degree of mobility at all. Hence, his experience cannot be a reliable guide to the

outcome of the procedure to anyone with mobility. I accept that Orthopaedic

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surgeons may see more complicated cases, and more serious instances of difficulty,

than Podiatric Surgeons, the latter not being medically qualified. But in my

judgement Mr Chell simply gave too much weight to his own experience, in

circumstances where, objectively speaking, it offers no particularly reliable guide.

Equally, Mr Chell did not produce any literature because, “fusion is the gold standard

and Keller’s isn’t. I didn’t need to produce anything”. That, however, is not the issue. There

is no doubt that fusion was the first choice (although in these particular

circumstances it does not follow that it is the gold standard): the question was

whether Keller’s should have been offered, not whether there was a better

alternative. As I have said, the literature supports the proposition that Keller’s gives

a reasonable outcome.

b. The Claimant had ample time to direct Mr Chell to that literature by the time he

completed his liability and causation report, because that report is dated 15th August

2017, and the Defence, which specifically pleads the literature, was dated 10th

November 2016. Mr Chell’s report does not state that he had seen the Defence and

Mr Chell could not remember whether he had reviewed it or not.

c. I therefore ask myself upon what Mr Chell bases his view that offering Keller’s was

negligent, given that the literature I have seen does not support his thesis, and that

neither his experience nor the outcomes he has seen are set out in his report or are

particularly relevant. The answer is that nothing of substance supports that

assertion. Mr Chell sought to buttress his view by attacking the literature that Mr

Smith produced. He made some perfectly sensible points about the cohorts

involved in the studies and the differentiation that could be made between them

and the Claimant. But I reject without hesitation his conclusion that the literature

therefore supports his thesis. Even if the literature does not assist the Defendant, it

does not come close to proving that offering Keller’s was negligent.

d. Mr Chell’s evidence essentially came down to the proposition that because fusion

was available and the best option, nothing else would have been appropriate. He

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sought to justify this in a variety of ways, but particularly by the argument that the

consequences of Keller’s would not have suited the Claimant and were not properly

explained to her. These are, in my judgement, really matters of consent and I

consider them under that head. Insofar as this allegation is concerned, Mr Chell

sought to argue that Keller’s was not indicated, because there was not the degree of

arthritis that justified it. As I have already said, I preferred Mr Smith’s evidence on

this issue, but in any event, the Keller’s was specifically offered to the Claimant on

the basis that it would only be performed if the conditions found intra-operatively

justified a procedure that destroyed the joint. A fusion is also such a procedure. As

Mr Chell said, “I accept there was sufficient arthritis [intra-operatively] to justify a destructive

procedure”.

e. When Mr Chell considered the two issues advanced by Mr Smith as justifying

Keller’s, namely the refusal of fusion and the combination of hallux rigidus and

hallux valgus, he seemed to me to make what amounted to concessions. He said

that where there is only hallux valgus Keller’s is a better procedure than fusion,

“because it [fusion] affects your walking ability more”. That is simply inconsistent with his

evidence that a wholly defunctioned big toe is an inevitable consequence of Keller’s.

However, it does fit with both Mr Smith’s and Mr Boon’s experience that whilst

Keller’s always produces some compromise of function, it is not a procedure that

renders a moderately active life impossible. Insofar as the refusal of fusion was

concerned, Mr Chell was adamant that refusal of fusion did not move the Claimant

into the group in which Keller’s is appropriate. The difficulty with that answer is

that it is a conclusion that proceeds from its premise, namely that Keller’s was

negligently offered. It does not actually engage with the issue of whether the

Claimant had a genuine option or not.

f. I was unpersuaded by Mr Chell’s assertion that the literature does not show that

Keller’s allowed a rapid return to normality and footwear, as Kilmartin found,

because “normal” was dependant on the cohort being studied. That is in one sense

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obviously true, but there was nothing in the study that suggested that it treated

“normal” as outwith the regular meaning of that word. All the participants

presented with painful hallux rigidus. The authors acknowledged that the failure to

measure ability before the procedure was a weakness. But that does not entitle Mr

Chell to suppose that the ability prior to the procedure was so impaired as to mean

that the subsequent satisfaction with the procedure was meaningless and/or

supported his thesis that offering Keller’s was negligent.

29. In deference to Mr Baker’s efforts to persuade me otherwise, I deal briefly with the

points he made in his final submissions. I do not consider that Mr Smith’s retirement

from NHS practice in 2006 weakens the weight of his evidence. His evidence is not

based simply on his experience (he edited The Foot for a number of years), but on the

logic of his position. There was no evidence that matters had moved on in the 5 years or

so between Mr Smith’s retirement and the index events. Indeed, Mr Baker criticised

O’Doherty on the basis that it compared Keller’s with a 1990 fusion, where the fusion

procedure has much improved over the ensuing year. That was a justifiable criticism

because the evidence was that the procedure had changed.

30. I do agree that Mr Smith cannot rely on O’Doherty as regards the comparison between

fusion and Keller’s, and that he did so in his report (albeit regarding consent). But Mr

Smith accepted that criticism without abandoning his point that it showed that Keller’s

gave a good result. Similarly – and again as regards consent – Mr Smith accepted that his

reliance on the Mackey paper was unhelpful because it examined a different type of

Keller’s procedure to that performed on the Claimant. But that does not detract from Mr

Smith’s view that Mackey also shows that Keller’s can give a good result and that it is

helpful in considering how to treat patients with hallux valgus and hallux rigidus. The

issue is not whether Keller’s was the best choice: it is whether offering the Claimant

Keller’s was negligent.

18

31. In my view, the slightly loose wording in Mr Smith’s report was corrected in oral

evidence and Mr Smith did not seek to stand by the inappropriate conclusions. That

does not so flaw Mr Smith’s evidence as to persuade me that Mr Chell’s approach should

be preferred, first because it is only a part of Mr Smith’s evidence and secondly because

Mr Chell’s evidence is itself flawed.

32. Because I prefer the evidence of Mr Smith to Mr Chell on this issue, I reject the

allegation that offering the Claimant a Keller’s was negligent and this aspect of the

Claimant’s case fails.

Did the Claimant Consent in the Legal Sense of the Term?

33. This seemed at one stage to be the most difficult part of the case. However, because I

have determined that offering Keller’s was not negligent, the task is eased somewhat.

34. I find as a fact that the Claimant was given the leaflet dealing with the Keller’s

procedure. It is right to record that the Claimant did not remember having received it,

but the consent form records that it was given to her and I see no reason to doubt its

accuracy. I reject the criticism made of the leaflet, which seems to me to be largely after

the event and with the benefit of hindsight. The leaflets are those published by the

faculty and Mr Chell accepted in the joint report that the leaflets were of an acceptable

standard. There was an argument that what was listed as a “risk” was in fact an inevitable

outcome. That argument seems to me to be largely semantic. At no stage did the

Claimant ever express surprise that her big toe was shorter, or weak. She did not

mention it in her witness statement, in her oral evidence or in the clinical notes. There is

simply no evidence to support the proposition that the Claimant’s understanding of what

she was being told was that these “risks” were unlikely to eventuate.

19

35. My conclusion thus far means only that the form was with the Claimant on the 27th July

2010, when she signed the consent form. Mr Boon believed that it was received earlier.

He said he could not remember fusion being ruled out on the 18th May (and the notes do

not record that) but that the leaflets were given on the 18th May and that fact is recorded

in the note. The note says only “info sheets provided”, without specifying which sheets.

However, it seems clear that there was, at least, a discussion about revision surgery

(specifically mentioned in the note) and at least one other form of surgery because by

June the Claimant thought she might be in a pot.

36. It seems to me that on the balance of probabilities there was a discussion about various

types of treatment on the 18th May. The x-ray of the 13th May had been received by then,

it specifically referred to degenerative changes and it was specifically referred to in the

letter to the GP, which Mr Boon told me, and I accept, was written immediately after the

appointment. That was one of the indicators that revision of the original procedure

would not be sufficient. With that in mind, I find that the note of the 18th May did not

mean to confine “revision of surgery” to a further Scarf Akin osteotomy, but referred more

generally to further surgery. The information sheets are in my judgement those

describing the general effects of surgery and those referring to the specific operations.

The leaflet referring to Keller’s specifically mentions fusion as an alternative.

37. However, I am not prepared to find that fusion was ruled out, or that any particular

advice was given on the 18th May 2010. In my judgement, the Claimant was told that

further surgery was an option, there was a basic description of the available choices and

the Claimant was asked to read the leaflets and consider her choices. She was, I find,

given the leaflet regarding fusion as well. That is the only rational conclusion given that

fusion was an option and had not been ruled out.

38. That does not mean the Claimant understood those leaflets without more. I am satisfied

20

that she would have found it difficult to understand the options without help. That is not

because she had a problem comprehending the leaflets, or because the leaflets are

unclear or badly written, but because she was faced with a choice. As at the 18th May, as

per the clinical notes, no one had explained the choices to her. They may have outlined

the choices, but that is not the same thing. The Claimant had not received any advice.

That seems clear from the note of the 24th June 2010. It is apparent from that note that

the Claimant had not understood what, if anything, was being proposed. That is hardly

surprising. It seems that fusion (which is the only operation which would have led to her

being in a pot) was then what she may have been expecting, but that she understood

neither the procedure, nor the choices. Therefore – and properly – Ms Park did not

obtain the Claimant’s consent to anything. Instead, she arranged a review appointment

with Mr Boon.

39. At that review appointment, the Claimant is adamant that Mr Boon simply said he would

shave off some of the bone. Her husband supports her in that recollection. I cannot

accept that evidence as reliable. It is simply not a description of any procedure then

being contemplated. It might be a description of a cheilectomy, but there is no note of a

cheilectomy being offered. That is unsurprising because a cheilectomy would not correct

the hallux valgus from which the Claimant suffered. I conclude that the Claimant is mis-

remembering the conversation, importing it from a different discussion and placing it at

a time when it could not, on the balance of probabilities, have taken place.

40. To look at what was said requires consideration of the clinical note of 27th July 2010. Mr

Boon’s evidence is that he waited until after a consultation to write up his note and

dictate the letter, if any, to the GP. That accords with Mr Swain’s evidence that he did

not see Mr Boon make a note. The practice Mr Boon describes is not criticised by the

Claimant, and nor, in my judgement, should it have been. It means, however, that the

note is not necessarily a representation of the order in which matters were discussed.

21

41. The note records the X-ray of the 13th May 2010 and its result. It records a range of

movement and a pain score. When asked in cross-examination, Mr Boon thought that

the pain score related to the general level of pain, rather than that found at the extremity

of movement. I reject that evidence. It is inconsistent with the note of 18th May 2010

that tenderness was palpable over the joint and the recorded history that the joint was

very painful to touch. Neither expert said that the progression would have been so

speedy as to lead to a 10/10 pain score absent any movement at all, 2 months later. Nor

is the pain score finding consistent with Mr Boon’s evidence that he was not certain

what the arthritic changes were and so consented both eventualities – simple revision

and joint destruction. Had the pain been 10/10 absent touch, it seems to me to be more

likely than not that arthritis would have been the inevitable diagnosis. Nor was it the

Claimant’s evidence. I find that the pain was that referable to the extremes of movement.

42. The note then records that the options were repeated. I accept that this was the case, but

in my judgement this was the first occasion upon which the Claimant was offered

choices and had them explained to her by Mr Boon. The note then records the 4 choices

being nothing, injection, repeat Scarf osteotomy with Keller’s, or just Keller’s. It goes on

to say that the Claimant declined fusion and why, and that implant was not appropriate.

43. I find that the discussion about fusion preceded the discussion about the 4 options.

Nothing else makes sense. Mr Boon’s evidence was that fusion was an option. He was

not challenged about that and it was not the Claimant’s case that he deliberately or

negligently failed to offer fusion. The note only makes sense if fusion was mentioned as

an option, but the Claimant declined it, as a result of which there were only 4 options,

rather than the 5 there would otherwise have been. Equally, the note records why the

Claimant declined fusion, and the Claimant accepts at least one of those reasons. Unless

22

Mr Boon has made an extraordinarily lucky guess1, he can only have known that the

Claimant had a previous fusion in her hand if the Claimant had told him that fact.

44. Thereafter, the note records that the Claimant was given the Scarf, Keller’s and general

leaflets. Given that the Claimant agreed she had seen the fusion leaflet, that leaflet must

have been provided on the 18th May 2010. It is therefore likely on the balance of

probabilities that this was the second occasion on which the Keller’s leaflet was given to

the Claimant. The only alternative is that on the 18th May 2010 the only leaflet the

Claimant was given was the fusion leaflet. That, however, cannot be right on the balance

of probabilities because in that event the Claimant would be correct on the 24th June

2010 in her description of what would happen to her, whereas she was evidently not

thought to be correct. However, on 27th July 2010 the fusion leaflet was not given to the

Claimant again because she had declined that procedure.

45. The note records that the Claimant understood the proposed procedure having read the

advice note, and that the benefits, risks and complications were again discussed with the

Claimant. I find that the word “again” is a general reference to the earlier discussion. I do

not find that there was a previous discussion that included this level of detail. Indeed, it

is difficult to see how there could be. On 18th May 2010 Mr Boon came in to the

appointment for a short time and on the 24th June 2010 he was not there at all and Ms

Park clearly wished him to discuss these matters with the Claimant.

46. The Claimant was then taken through the consent procedure and consented to the

revision of the Scarf Akin osteotomy or Keller’s to be decided intra-operatively,

depending on the state of her arthritis. The leaflets are recorded as being provided to

her. The Claimant signed the form. Both the note and the consent form record the fact

that the Keller’s procedure was explained to the Claimant and she understood the

1 The clinical notes podiatry notes record the Claimant’s hand fracture but not its resolution – C1/1.1

23

procedure. Consistent with my approach that the clinical notes are likely to provide the

best evidence in this case I find that the notes are accurate.

47. It follows that I reject the Claimant’s evidence that she did not understand the

procedure. In my judgement the Claimant has a reasonable memory of the conversation

during the procedure in which Mr Boon informed her that he was to do the Keller’s

procedure as opposed to a further Scarf Akin procedure. She remembers him saying that

her bones were “crumbling” and I am satisfied that this equates to Mr Boon’s evidence

that he told the Claimant he had discovered arthritis, which he then depicted in picture

form on the operation note, and which Mr Chell agreed was likely to be accurate. But the

Claimant has not remembered the consultation or the consent form at all. She cannot be

correct in her recollection that Mr Boon told her he was going to shave off some bone,

because he was not going to do so.

48. Accordingly, having found that Keller’s was properly offered to the Claimant I find that

she gave an informed consent to the Keller’s procedure, having had its risks and benefits

explained to her.

49. That is not the end of this issue, because the Claimant’s case is that there is no evidence

that fusion was put forward before the other options were discussed, no evidence that

the Claimant was told it was best, that it was incumbent on Mr Boon to tell her that, and

that she would, if properly advised, have had the fusion operation. My finding that the

Claimant consented to the procedure she underwent, which was a proper one to offer to

her is not in itself determinative of the issue of whether the Claimant consented.

50. Consent, legally speaking, means an informed decision taken by the patient following a

comprehensible explanation of the material risks of the proposed treatment and a similar

explanation of any reasonable alternative treatment – see Montgomery v Lanarkshire Health

24

Board [2015] UKSC 11; Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ

1307. Because it focuses on the decision taken by the patient, or a reasonable person in

the patient’s position, it has a subjective element. As Green J pointed out in Thefaut v

Johnston [2017] EWHC 497 (QB) (§55), the extent to which the subjective element is

relevant is not always clear. In that case, at paragraphs 81-82, Green J went on to apply

paragraph 89 of Montgomery as indicating that the patient’s own (subjective) views and

reactions to matters that are typically important to individuals, but upon which they may

differ in terms of relative importance, both because of personal circumstances and

personal tolerances, should be part of the test.

51. I agree with that approach and it is the one I have adopted. I find as a fact that the

Claimant knew that fusion was an alternative. That is because of the note of 24th June

2010, which is only compatible with fusion having been discussed, because the leaflet for

Keller’s mentions fusion as an alternative, because the clinical notes say that the

Claimant rejected fusion and because the Claimant’s evidence was that she rejected

fusion.

52. I find as a fact that the Claimant was concerned about wearing high heels. I find this

because the clinical note records the concerns contemporaneously, and because the

Claimant told me so. She referred to the fusion operation in her witness statement and

made it clear that even after the Keller’s had failed she did not want a fusion because Mr

Boon told her that her toe would be permanently stiff (as would have been the case) so

she then opted for the implant.

53. In oral evidence the Claimant said she was not bothered about heels. I do not accept that

was accurate as a statement of her contemporaneous feeling. Quite apart from the fact

that it is in the note, the Claimant’s witness statement makes clear that she was a social

person and, interestingly, that she had not been out regularly between the amputation of

25

her leg (which finally stopped the pain) and 2011. She told the psychiatrist, Dr Hayes,

that before the last several years she would go out every Friday and Saturday night. The

medical notes constantly record advice to the Claimant – at least some of which she

accepts she recollects – to modify her footwear. The first operation in 2009 had as one

of its aims as expressed on the consent form, “aid footwear tolerance”. The index procedure

had as an aim, “ease with footwear”. In my judgement the Claimant was concerned to wear

footwear of her choice.

54. That was a rational perspective, and an issue about which the Claimant was entitled to be

concerned. I find that it was a factor in her choice of operation and that it should be

taken into account when considering whether she gave informed consent to the Keller’s

procedure as an alternative to fusion.

55. I also find that the Claimant was concerned about fusion because of the previous failure

(as she saw it) of the fusion operation in her hand/wrist. In evidence the Claimant said

she refused fusion and that it was offered as a choice to her. She refused it because she

knew it was bad because of her hand. She repeated a little later that she remembered

being given fusion as a choice but she didn’t want it. That was specifically in response to

the proposition that paragraph 4 of her witness statement did not mention it.

56. Moreover, later on the Claimant said she would have had a fusion if she had been told

that the Keller’s would leave her sore. She said, “I’d have had to have the fusion. The fusion

would have made the joint stiff but it doesn’t matter given the pain that I went through. It’s not just what

the operation looked like, but the pain afterwards as well. … I don’t say anything about fusion in my

witness statement because I just didn’t think of everything”. That evidence supports my view that

the Claimant was, consistent with her account to me, more concerned about the pain of

a failed fusion (a risk because she was a smoker), rather than anxious to fix her toe

without movement. Her objection to the Keller’s after the event was not that it left her

26

with limited movement, a floppy toe or, particularly, a shortened toe. Her major genuine

concern was that it did not resolve the pain. Without determining the issue of negligent

performance at this stage, the Keller’s procedure was expected to resolve the issue of

pain. No advice as to the relative merits of fusion or Keller’s would have focused on the

issue of pain, because both procedures were properly expected to resolve that issue.

57. Having found that the Claimant did have these subjective considerations and had

communicated them to Mr Boon, I turn to the Claimant’s contention that Mr Boon

ought to have told her that fusion was the best alternative. I reject that argument for two

reasons.

58. First, given the Claimant’s own wishes and rational objectives, fusion was not the best

option. This was not simply a matter of one procedure being clinically suitable and

another one not. Nor was it a matter of fusion being the “gold standard”. That

proposition is based on a person who has no particular views about the outcome of the

procedure or particular priorities thereafter. The Claimant had a concern about fusion

not working and the pain it would cause. She wanted to wear heels after the procedure.

The phrase “gold standard” is inapplicable in this particular case. It was not

unreasonable for Mr Boon to conclude that Keller’s was an appropriate procedure for

the Claimant, and the best procedure in view of her refusal of fusion, and to couch his

advice to take account of that conclusion.

59. Secondly, I am not persuaded that fusion was the first choice by such a distance as to

require Mr Boon to seek to dissuade the Claimant from that procedure into one the

Claimant had positively rejected. As Mr Smith pointed out, at the time that Mr Boon

would have provided this advice, it would have been on the basis that the Keller’s was

capable of dealing with the hallux valgus and the hallux rigidus, providing the Claimant

with a reasonable chance of activity afterwards, and the ability to dress as she wished.

27

The fusion would fix the toe. Both operations would resolve the pain. Fusion was a

better choice because it was less prone to break down, but the Claimant believed it

would break down. In my judgement Mr Boon did not err in not seeking to persuade the

Claimant to change her mind. The relative merits of the procedures did not justify such

an attempt, both because patient autonomy was important and because the Claimant

would have felt pressured into a procedure she did not want.

60. In my judgement, the Claimant refused fusion because she felt the procedure would not

work, would leave her unable to wear heels and would cause pain because in her

experience that is what fusion did. Absent pain, the Claimant would have preferred the

toe to be flexible. Given those subjective desires and priorities it seems to me inevitable

that the Claimant chose the Keller’s procedure and rejected fusion for rational reasons of

her own. It was not incumbent on Mr Boon to seek to persuade her otherwise, and his

failure to do so did not negative her consent.

61. Nor do I accept that the Claimant would then have chosen fusion. As I have found, she

rejected fusion for reasonable reasons of her own. In my judgement, what Mr Boon

could have said – even had he referred to fusion as the gold standard – would not have

persuaded the Claimant to alter her view. Mr Baker’s case on this was that most patients

would follow clinical advice. That rather begs the question of whether Mr Boon should

have advised positively that the Claimant should have fusion, rather than present it as an

alternative or the best alternative. I think that is over-generous to the Claimant, but even

so I do not accept the submission.

62. Throughout her contact with Mr Boon the Claimant had been advised to stop smoking.

She had not done so, although I accept she had tried. She had consistently been advised

about footwear and she had consistently attended appointments in footwear that meant

that the advice was repeated.

28

63. The Claimant told me that the only occasion that happened was the one recorded in the

medical notes where she had attended in narrow boots. That would mean that on all

other occasions the advice was given even though the Claimant was wearing appropriate

footwear. I do not accept that was correct. The clinical note of 13th May 2010 records

the Claimant as complaining that she did not even go to the pub because she could not

wear nice shoes and that she was advised to modify her footwear. It seems to me that

the most likely explanation is that the Claimant thought the footwear she was compelled

to wear was unacceptably dowdy, and the clinicians thought it was unsuitable. The advice

to modify footwear was also given on 14th July 2009 and 12th May 2010.

64. The Claimant’s own evidence to me was that she would have had fusion if she had been

told the Keller’s would leave her in pain. Given that she would never have been told

that, it follows that there is no evidence from the Claimant to support the contention

that she would have chosen fusion over Keller’s. In my judgement, the Claimant had

decided what she wanted to do. Of course, had she been told that there was no

alternative to fusion, or that only fusion would work, her choice may have been

different. But there was no requirement to tell her those things because they were not

proper advice.

65. I conclude, therefore that the Claimant did give legal consent to the Keller’s procedure,

having been offered the opportunity to make an informed choice, and made that choice

in reliance on what she had been told, applying those things to her own chosen priorities

and doing so rationally, in circumstances in which what she had been told was

reasonable.

Was the Operation Negligently Performed?

66. As I have said, this resolves to the factual question of whether the Claimant experienced

29

pain straight after the operation, or after the time at which the immediate post-operative

pain would have been expected to subside.

67. According to the leaflet the Claimant was given, the foot would start to return to normal

between 2 and 8 weeks after surgery, although it might still be swollen at the end of a

day. Sport can be considered after 12 weeks. It is clearly the case, therefore that pain

after 12 weeks would be concerning and that the Claimant should have been virtually

pain free within around 6 weeks.

68. The post operative checks show that the Claimant was taking analgesics 7 days after the

procedure and not 14 days after. Thereafter one turns to the GP notes. These show that

between the procedure and her complaint of pain to Mr Boon in March 2011 (the six

month review), the Claimant attended her GP on 24th September 2010; 14th January

2011; 31st January 2011; and 14th February 2011. On each occasion a history was taken.

On no occasion did the Claimant complain of pain in her foot.

69. On 24th September – 4 weeks after the operation – the Claimant complained of back

pain and was prescribed tramadol. She was to take one 3 times a day and was given a

supply for 20 days. Tramadol would have had an analgesic effect, which would have

ceased on 14th October 2010, about 7 weeks after the operation.

70. On 14th January 2011 the Claimant complained of abdominal pain. It may be that the

foot pain would not have been mentioned. On 31st January the complaint was of

headaches. A full history was taken and the abdominal pain was mentioned again. This

was not connected to the headaches and I conclude that it is unlikely the Claimant was

then suffering from foot pain if she was asked about any other issues. Of course, it is

possible the Claimant could simply have been asked about the abdominal pain.

30

71. On 10th March 2011 the Claimant went to the foot clinic and complained of pain when

she walked. She was wearing narrow, short slip on boots – unsuitable footwear because

the boots were both narrow and slip on. On 12th May the Claimant complained that it

still hurt and she could not wear heels. On this occasion she was wearing sandals. X-ray

showed an attenuated gap at the Keller’s site and everyone is agreed that would account

for the pain at that stage. On 31st May 2011 the Claimant attended the foot clinic again

wearing broad flat shoes (a further indication that previous visits had not been in such

footwear, as it appears to be the practice to record appropriate footwear in the notes)

complaining of pain and saying she was taking paracetamol instead of tramadol as the

tramadol had been stopped because of the seizures from which she was by then

suffering.

72. On the basis of those notes it seems to me more likely than not that the Claimant did

not experience pain immediately after the operation and, consequently, that the

operation was not performed negligently. That accords with Mr Boon’s own evidence of

his regular practice and the use of the mattress stitch, which has the effect of bringing

soft tissue into the gap. The lack of any complaint of pain, the alteration in footwear

between March and May 2011, and the fact that paracetamol was being used in May

2011 all suggest a relatively recent pain which was susceptible to basic analgesics. The

Claimant had not taken tramadol since October 2010. It is right to record that Mr Swain

said the Claimant tended to take his co-codamol, but he was not specific about timings

and the Claimant did not mention this at the relevant time. In my view, had co-codamol

helped and paracetamol did not help she would have asked her GP or the foot clinic for

something stronger at the same time that she mentioned tramadol. Mr Boon had

previously asked the GP to prescribe specific medication and there is no reason to

suspect he would not have done so on another occasion had he been asked to do so.

73. On the evidence I am simply not able to find that the Claimant was in pain immediately

31

after the operation. The clinical notes suggest otherwise. The Claimant’s evidence on this

point was vague and mixed up different timings and events. I am sure that it was an

honest account but it was not a reliable one. The Claimant has simply been through too

much to be able to accurately recollect these matters. In my judgement Mr Boon

performed the operation to a reasonable standard and not negligently.

Causation

74. So that it is clear, I set out my findings on causation briefly, in the event that the

Claimant wishes to take this matter further and is granted permission to do so.

75. If Keller’s had not been recommended I find as a fact that for the reasons I have already

explained the Claimant did not want a fusion and would have had an implant. That was,

in fact, the choice she made when the Keller’s broke down. The likely outcome of that

procedure would have been successful, at least in the short term (the evidence does not

permit a further finding thereafter). The Claimant has been dreadfully unfortunate: most

procedures succeed.

76. The reason for this finding is that, for the reasons I have already explained, I find that

even with adequate information – assuming that the information I have found was

adequate was supplemented by a strong recommendation to have fusion – the Claimant

would have rejected fusion in favour of an implant. In my judgement, the Claimant

would have opted for fusion only if told that nothing else would work, or if offered no

other choice. Absent that, and absent Keller’s she would have opted for an implant.

77. If the Keller’s procedure had been negligently carried out then, in my view, the entirety

of the Claimant’s subsequent injuries would have flowed from that negligence. It is

correct that sometimes soft tissue interposition is not carried out, but Mr Boon intended

to carry it out and said he did carry it out. Although other theses were tentatively

32

advanced for the pain, the consensus between the experts was that pain immediately

after the operation would have meant it had not been carried out properly and had failed

to achieve its objective. It would therefore follow that the Claimant then required the

implant. As a matter of fact the implant led to non-negligent infection and then to all the

other sequalae from which the Claimant has suffered.

Conclusion

78. In the light of my findings the claim must fail. I am told that costs follow the event and,

unless that is incorrect, I assume that Ms Whittaker’s will draft the order and will include

such a provision, which will be agreed by the Claimant. If the draft order is then

submitted to me I will ensure that it is sealed. Judgment will be handed down on the 19th

June 2019. If that changes I will endeavour to ensure that the Court keeps the parties

informed.

79. Of course the Claimant will be upset and unhappy with this result. Of course, that may

mean that she regards any observations on my part as unwanted and unnecessary. But,

nonetheless, it would not be right for me to leave this matter without expressing two

things. First, that my conclusion that Mr Boon was not negligent does not in any way

affect my genuine sympathy for the appalling events to which the Claimant has been

subject. That she has asked whether anyone was to blame for what is, otherwise, the

cruellest series of misfortunes, is eminently understandable and natural.

80. Secondly, my admiration for the way that the Claimant has coped with these unhappy

events. There was little if any trace of self-pity in her evidence. She did not seek to take

advantage of her obvious difficulties. She was stoic and open. She cooperated with Ms

Whittaker’s questions without avoiding them and was always polite. She has, throughout

been brave and, if she is proud of the way she has dealt with events then, in my opinion,

she has every right to be. Her relationship with Mr Swain is one that is obviously

33

mutually supportive and happy, which is an enormous credit to both of them in these

circumstances. She has many friends, which is both unsurprising and a reflection of the

way in which she deals with adversity. No one, including myself, could wish her anything

but well, even if the conclusions to which I have come in applying the law to the facts

might seem to suggest otherwise.