QB-2022-000824 - [2025] EWHC 1610 (KB)

The Claimant’s Updated Schedule of Loss served in April 2024, drafted by the Claimant’s solicitors, remains “tbc” in relation to general damages. It is only in Mr Dufficy’s skeleton argument filed shortly before trial that the Defendants learned that she seeks an award in the region of £110,000. Mr Gibson for the First Defendant comments adversely on that in his skeleton argument for trial, entirely correctly and justifiably in my judgment. This approach leaves the Defendants unclear of what their potential liability is, prevents them from answering the head of claim in their counter-schedules, and stifles any meaningful opportunity for settlement. As Yip J put it in Wright v Satellite Information Services Limited [2018] EWHC 812 (QB) at [29], to which he refers, “…schedules and counter-schedules are an essential part of the advocacy in a case. In my view they need to be drafted by lawyers with sufficient experience and skill to properly present the claim as it will be presented at trial, particularly in a contentious case such as this”. I make clear that I have no reason to, and do not, question the Claimant’s solicitors’ experience and skill but the updated schedule must in fairness properly present the claim as it will be presented at trial, and the Claimant’s does not do that in respect of general damages.

Mr Dufficy for the Claimant directs me to the Judicial College Guidelines 17^th Edition, Chapter 6, Injuries to Internal Organs (F) Reproductive System: Female. In the preamble to this Chapter, it notes that “level of awards in this area will typically depend on (i) effect on fertility; (ii) pain and sexual dysfunction; (iii) hormonal effects; (iv) whether or not the affected person already has children and/or whether the intended family was complete; (v) scarring; (vi) psychological reaction; (vii) medical complications…”.

Mr Dufficy submits the appropriate category in which to place the award is (b). I set out below (a) to (c), being the first three of seven categories in this section, for reference:

“(a)

Infertility whether by reason of injury or disease, with sexual dysfunction, severe depression and anxiety, pain and scarring. The upper end will be in cases with significant medical complications, e.g. following failure to diagnose ectopic pregnancy, and in a younger person. (£140,210 to £207,260)

(b)

Sexual dysfunction, which is likely to be permanent in the case of a person with children or who would not have had children in any event. The upper end will include cases with significant medical complications, e.g. ectopic pregnancies or multiple surgeries. (£52,490 to £124,620)

(c)

Infertility with no aggravating features and no sexual dysfunction in a young person without children. (£68,440 to £87,070)

…”.

The Claimant relies on two comparable cases. One is X v Dartford and Gravesham NHS Trust (2018) (settlement, £80,000, liability not admitted) and the other is P v Salford Royal Hospitals NHS Trust (2002) (£129,500 after trial and a further £26,000 afterwards to settle an appeal, being £155,000 in total).

The First Defendant submits that Chapter 6(F) discusses infertility in several of the brackets in absolute terms, and the Claimant is not infertile, but sub-fertile, as the experts agree. He submits that as Mr Slack noted in the joint statement, this is really a case about chronic pain – chronic pelvic pain, dyschezia and dyspareunia. Accordingly he relies on Chapter 9(B) (Other Pain Disorders) of the Judicial Guidelines and submits that the appropriate award is £30,000, within the bracket (b) Moderate (with (a) Severe set below in addition, for reference):

“(a)

Severe. In these cases, significant symptoms will be ongoing despite treatment and will be expected to persist, resulting in adverse impact on ability to work and the need for some care assistance. Most cases of fibromyalgia with serious persisting symptoms will fall within this range. £51,410 to £76,870.

(b)

Moderate. At the top end of this bracket are cases where symptoms are ongoing, albeit of lesser degree than in (i) above and the impact on ability to work/function in daily life is less marked. At the bottom end are cases where full, or near complete recovery has been made (or is anticipated) after symptoms have persisted for a number of years. Cases involving significant symptoms but where the claimant was vulnerable to the development of a pain disorder within a few years (or ‘acceleration’ cases) will also fall within this bracket. £25,710 to £46,970.”

The First Defendant accepts that the Claimant has significant ongoing issues which demand compensation, but submits that she is not disabled in Equality Act terms, and is able to work, parent, do yoga and high intensity interval training classes, manage her pain with analgesia as required, and live her life independently without the need for care or assistance. He submits that an award in the “(a) Severe” category is therefore not appropriate.

The Second Defendant adopts the First Defendant’s submissions, agreeing that this should be viewed as a pain disorder case and compensated in the JC Chapter 9(B)(b) Moderate range, but Ms Campbell-Clause for the Second Defendant places it higher within that range and submits that £45,000 is the appropriate award, taking into account that further surgery may be required. She also submits that Chapter 6(F) relied on by the Claimant is not particularly helpful as the Claimant is not infertile, and so it provides the incorrect starting point. I will return to that. She further submits that the Claimant’s comparables are also not helpful as X v Dartford is a settlement and P v Salford is quite different on the facts and can easily be distinguished. I accept those submissions.

In my judgment awarding general damages as if this was a chronic pain case would undercompensate the Claimant. It would not take into account the pain and suffering arising from her two laparoscopic surgeries and likely future pelvic clearance surgery, the risk the damage to her fertility and pain arising out of future IVF cycles, and raised risk of ectopic pregnancy. I accept Chapter 9(B) is useful as a guide to damages for chronic pain, however.

I do not agree that Chapter 6(F) is inappropriate because some of the categories refer to infertility. Four of the seven categories do, but three do not, and these and the preamble make clear that it is intended to cover cases both where there is infertility and where there is some or no effect on fertility. For example, category (f) applies where there is a delay in diagnosing ectopic pregnancy but fertility is not affected. The range is from £4,140 to £24,930 and the award is said to be dependent on the extent of pain, suffering, bleeding whether blood transfusion was required, anxiety and adjustment disorder, and whether there is resultant removal of one of the fallopian tubes. The Claimant did not have an ectopic pregnancy but had pain, lasting much longer than an ectopic pregnancy, and removal of a fallopian tube, and on top of this had damage to the other fallopian tube, a second surgery, possible further surgery, chronic pain and sexual dysfunction, all at a young age.

In fairness to all parties, I have used all of these categories as a guide to reach a figure which achieves full compensation to the Claimant, rather than placing this within one of them. I award the Claimant £94,000 in general damages in pain, suffering and loss of amenity.

I award interest on general damages at 2% from the date of service of proceedings to trial, being £5,358.00.

This has been agreed at £260 which I believe includes interest.