Hookey v Paterno [2009] VSCA 48

Hookey v Paterno [2009] VSCA 48 - VSCA 2009 case summary — Zoe

[41]

23 The appellant deposed that he was confident that he had discussed the risks or complications of the proposed surgery at the consultation on 30 May 1998 or 8 July 1998 or both, but that he had no direct recollection of giving warnings on 30 May 1998 or on 8 July 1998. He said, however, that the second consultation, which was in his Collins Street rooms, was the more significant. His recollection was that on that occasion he reiterated that no operation is without risk or complications and he reminded the respondent that when she woke from the surgery she would be bruised, swollen and numb, and that there were things that could linger beyond a certain time; there was a risk of local problems that may require further surgery; and the risk of numbness in particular. He said that by demonstration on a skull and on his own face he explained the operation and the area where the titanium screws and plates would be placed, and pointed to areas such as the nerve traversing the bone cuts and the adjacent teeth. He said he explained and demonstrated that the nerve is in the segment with the teeth and will move forward with the jaw, and he referred to complications related to the nerve which supplies feeling to the lip and chin. He said that he told the respondent that nerve damage was expected in 95 per cent of patients[9] and that she would wake up bruised, swollen and numb. He said that he told her that the numbness was a complication of the manipulation or the movement of the nerve, and was likely to persist for some months, and there was a one in ten chance of having lingering numbness beyond 12 months. He added that anaesthetic and operative bleeding issues were also discussed. He said that he told the respondent that the surgery was to endeavour to achieve the bite that Dr Schwartz had prepared for, and that if there were a relapse or problems of healing there may be a need to reoperate. He said that the respondent did not ask any questions on 30 May 1998 or 8 July 1998 that he could recall.

[50]

16 Mr Hookey stands by his treatment plan for Mrs Paterno as being the optimal treatment for her malocclusion.

17 When asked during his evidence about any other salient features of Mrs Paterno's presentation, in addition to facial pain and angular cheilitis, Mr Hookey said: 'The desire of the referring practitioners to restore her dentition and their desire to create a more normal morphology of her jaws'. The plaintiff's counsel point to there being no mention of a desire by the plaintiff for morphological normalisation. They argue that there was a significant gap between the plaintiff's presenting symptoms, and justification for the treatment plan including surgery proposed. This disparity between the technical correction of the malocclusion, and the presenting complaints is also reflected in the letter Mr Hookey wrote recommending the treatment plan which 'would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution'.

18 In his evidence in chief Mr Hookey said that the relevance of her being a smoker was related to the risks of anaesthetic. He also said that it was relevant as it was his policy not to perform implants on smokers. He agreed in cross-examination that her smoking should have been regarded as relevant to the risk of non-union of bone, but not to an extent that made the surgery unsuitable for her.

19 Supporting the appropriateness of the treatment plan is the evidence of Dr Schwartz, whose referral letter indicated his support for a combined orthognathic/orthodontic treatment approach as the 'ideal' one. I note, however, that in his referral letter he stated 'Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved'. I take that to indicate that there were other options, but it does not reflect whether the availability of other options short of the plans that were proposed as the 'ideal treatment plan', but other than one he called 'the simplest' plan, were canvassed with the plaintiff. Nevertheless, Dr Schwartz's evidence still supported the appropriateness of a combined surgical and orthodontic approach, as he had recommended, and for which he provided the orthodontic treatment throughout.

20 Dr Bruce Taylor, an experienced orthodontist, was retained by the defendant's solicitors to provide an opinion on the appropriateness of the treatment plan, and examined the plaintiff late last year. He said he had 'no doubt' that the treatment plan was appropriate and 'whilst I acknowledge the view other treatment options may have been explored, the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice'. He did not see the plaintiff's age as a contra-indication for this approach and said in his experience of over 20 years in orthodontics, many patients had been treated successfully without complication of greater age than this patient. In cross-examination he agreed that in any area of medicine the recovery rates in older people may not be as great as in younger people, and that smoking and higher age increased the level of risk in orthognathic surgery.

21 Dr Taylor said discussion of options by a dentist may well have included talk about partial dentures and palliative care for the angular cheilitis. He said: 'The objective of partial dentures would be to add to the biting ability and to open the jaw or widen the opening, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice one would suggest it was really camouflaging the problem, rather than treating the root of the problem, which essentially was the foreshortened lower jaw'. He said treatment with a partial denture is diminishing these days, and bringing the jaw forward would improve the efficacy of a partial denture, even if implants were not to be done to replace the missing teeth.

22 He agreed that a displacement appliance could be used as a diagnostic tool to see whether shifting the lower jaw would improve pain levels, 'but is not a definitive treatment, nor will it address the problems associated with aesthetics'. He agreed that if it did not improve the pain, that would reduce the reason for performing the surgery other than for aesthetics. He said it was most unusual these days to use such a splint and was not something that was routinely done, and by 'these days' he included 1997. He was under the impression that facial aesthetics were a motivating factor in the plaintiff seeking treatment.

23 Dr Taylor acknowledged that there were other possibilities that could be tried, but said: 'It is not, if you like, the ideal in terms of a technical point of view in producing the best possible bite'. The benefit from what he called the definitive way to correct her presenting problem, if it had gone as expected, would be that she would have had a far better occlusion, a better ability to eat, better aesthetics, whether she wished for them or not, it would be highly likely to have cleared up her angular cheilitis 'and there would be a good chance that it would address the problem of her pain'.

24 The defendant also relied on the expert opinion of oral and maxillofacial surgeon, Associate Professor Robert Jones of the University of Adelaide, whose reports were tendered without his being required to attend for cross-examination. He did not examine the plaintiff for his original opinion on the appropriateness of the treatment plan, but did examine her in Melbourne early this year for a further opinion.

25 Associate Professor Jones' opinion was that the treatment plan was appropriate for the plaintiff with her presenting problems, which he originally understood to include concern about her facial appearance. He states that the mechanical treatment of skeletal Class II occlusions in this way helps support temporomandibular joints, although it could not be guaranteed to cure the facial pain, and it would help treat the angular cheilitis perhaps in conjunction with antifungal medications. He did not believe her age was a contra-indication to jaw corrective surgery, but agreed that the incidence of problems with surgery is increased in patients older than 40 over younger patients. He said that does not mean patients over the age of 40 should not have this type of surgery provided these problems are discussed beforehand. His own verbal information to patients includes that the risk of permanent numbness to the lip is higher in older patients. His mention of the chances of non-union is that it is extremely low, and his standard warning does not relate that risk to age.

26 His reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks.

27 Mr Jones maintained his opinion that the treatment plan was the best chance of curing her problems, despite its unfortunate outcome, after he examined her in January 2007.

28 The plaintiff relied upon the expert opinion of Professor David, an oral and maxillo-facial surgeon, whose approach as head of the Australian Craniofacial Unit in Adelaide would, he said, be to treat a patient such as Mrs Paterno by having her seen by various members of a team of specialists, including an orthodontist, but also speech pathologist and social worker if surgery to change facial structure were to be contemplated. He had her assessed by such a team in order to give the medico-legal opinion sought from him by the plaintiff's solicitors.

29 Professor David's view was that in a woman of Mrs Paterno's age, there was a higher than normal risk of non-union of bone and associated complications such as nerve damage in performing a sagittal split osteotomy and, for that reason, it is unlikely that he and his team would offer a woman of her age with her condition this solution for her facial discomfort. He said that the presenting complaint of pain could be treated with the trial of a splint to raise the space between jaws vertically, and that would ascertain whether the complaint of pain was due to the temporomandibular joint, a proposition of which he was not convinced.

30 As part of Professor David's team, the plaintiff was examined by Dr Michael Nugent, an experienced orthodontist. He said that it would be unusual for him to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late 40s because at that age the risk of complications following surgery to the mandible is high. In such cases he would recommend the most conservative program to restore the occlusal function, which would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).

31 Mr Ian Carlisle, an experienced plastic surgeon who also has training in dentistry, and specialises in oral and facial surgery, gave evidence both as to his treatment of the plaintiff on referral by Mr Hookey, and also as to issues relevant to the appropriateness of the treatment. He said that in his experience, this sort of orthognathic surgery would only be performed for pain or for cosmetic reasons. If it were for pain, you would want to try to establish whether the surgery was likely to relieve the pain, and in those circumstances it would not be uncommon to have a bite raising appliance made and worn for some months. If it did not improve the pain 'a lot', it would be his view that one would probably not proceed with the surgery.

[53]

41 I am satisfied from the evidence outlined that the treatment plan was technically the optimal way to create a normal occlusion in the plaintiff's mouth. However, I am also satisfied that the decision to recommend it did not adequately take into account its suitability for her in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances....

....

45 ...Despite Dr Taylor's and Mr Hookey's evidence, I am satisfied by the evidence of both Professor David and Mr Carlisle that the trial of a splint device for some months to see whether creating more vertical height would relieve the pain was a more appropriate approach before recommending surgery of this extent if such surgery were aimed at alleviating the presenting pain which at most was of a very moderate level.

...

48 The seriousness of the presenting condition and its likely future, including any potential deterioration in the patient's health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.

...

50 In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orothodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks... [11]

[63]

54 ... It is clear that there was in fact non-union of bone on both the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a 'bucket handle' effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.

55 In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.

56 Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was 'settling' by which he says he was not referring specifically to pain but the overall operation result. By early November he had decided to schedule a reopening of the right split site, as a result of [the] continuing complaints of pain.

57 Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and the numbness respectively.

58 Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hookey or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.

59 Mr Ian Carlisle believed that there had been damage to the inferior alveolar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the non-union was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said 'any nerve that 's been damaged can go on and perform and behave in a way that can cause unremitting pain'. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.

60 A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff's pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage...In my view Mr Carlisle was in a better position to assess the plaintiff's condition over a considerable period of time, and in this case I would accept his view [of] the likelihood of nerve damage over that of Dr White, despite his area of specialty, especially as it is supported by the opinions of both parties' 'expert' maxillo-facial surgeons.[13]

[294]

as to the purpose of correcting or improving Mrs Paterno's ability to bite and chew, I am satisfied that, without the orthognathic surgery, alternative methods of improving her bite were not without limitations or downsides. Partial dentures were mentioned in evidence as possible, but described as outdated dentistry by Dr Taylor, with some discomfort, and Mr Hookey said that the lack of space in Mrs Paterno's mouth would have limited their effectiveness. The use of implants alone was said by Mr Hookey to be impractical because of a lack of vertical height allowing access to place them in her limited jaw space. On the evidence, it does not appear that any of these were even mentioned to Mrs Paterno - the only apparent alternative discussed being the 'simplest plan' of orthodontically pulling the upper front teeth back, mentioned but dismissed by Dr Schwartz.

Also relevant to the recommendation of treatment were the factors that increased the standard risks of those procedures in her case, namely, her age and her smoking habit, which I am satisfied increased the risk of her jaws not healing satisfactorily, as well as the risk of permanent nerve damage.

The seriousness of the presenting condition and its likely future, including any potential deterioration in the patient's health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.

The defendant's counsel urges that I infer from the fact that Mrs Paterno did agree to the treatment plan, knowing what it included, that she must have been considerably troubled by her presenting complaints. Her evidence does reflect that she was told about each step, and I accept that by agreeing to it she must have been willing to undergo considerable and protracted and expensive discomfort. However her agreement to it presupposes not only that its risks were adequately explained, but that she was adequately advised that she had other options, including of doing nothing.

In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orthodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks. Further, if it were Mr Hookey's opinion that there was a high risk of implants not being successful if the plaintiff remained a smoker, it was, in my view, an even less appropriate treatment plan to recommend.[40]

[364]

The operation as you know, and as I have pointed out, would be to break the jaws to set them in a new position and it does come with downsides. We have talked about all of the upsides, but the downsides in general terms relate to the swelling and discomfort, the hospital stay and also some numbness to the lips and chin following this surgery. The chances of a permanent problem with the numbness to the lips and chin is fairly low and is in the area of 2 to 5% depending upon age, the older the patient the higher percentage of chance of permanent numbness to the lip. The younger the patient the much better the recovery is and in young patients the permanent rate of anaesthesia is somewhere in the order of 1 to 2%, in the older age group of patient it jumps up. The time for recovery of this nerve is on average 6 months or so, however, it can last for a lot longer period of time, some patients recover earlier and some patients recover later. The average time is about 6 months. The numbness can continue to recover further over time and of recent times I have had a number of patients who have indicated that the return of sensation continues to occur over a longer period of time and may take 18 months to 2 years or more to recover. Other complications are infections of the jaw which usually relate to the plates and screws, but there can be infections for other reasons. A bone infection can occur with an osteomyelitis but this is extremely rare and of the number of cases I have done over the years, this would have to be less than a 1% chance of getting a bone infection. The chances of a non union occurring is extremely low, and in fact over the years I have been doing this type of surgery, the incidence of a non union has been extremely low and I can only remember 2 or 3 patients over the three thousand cases that I have done. Similarly the situation with a mal union, in other words where the jaws unite or join up in an incorrect position, this is extremely low as well. The only other thing which can present a problem on occasions relates to relapse and the further the jaws are moved, the higher the chances of relapse.

[375]

Mr Hookey admits that he does not have a direct memory of most of the specifics of what he said to Mrs Paterno, and that what he said in evidence was largely based on what it is his usual practice to say. Further, he said that he does not, as a habit, use percentages in discussing with patients the number of them who would get numbness, as he feels that it is more meaningful to say one in ten or one in twenty. He agreed that in combination the plaintiff's age and her smoking made this risk higher, but he said he did not tell her that specifically as he does not like to risk offending patients, so he says he factored into the figures he used her age, but it would seem not her smoking. His transcription of his notes, it eventuated, was not a direct transcription and he had no recollection of some of the detail as to warnings which it included.

Also present at the first consultation was Dr Romano. His evidence is that the defendant did not warn the plaintiff of the risk of permanent nerve damage at the first consultation. Without analysing all of its details, I decline to give much weight to Dr Romano's evidence about these matters because, in my view, his perception of the events is also heavily influenced by hindsight, there has clearly been an acrimonious falling out between him and Mr Hookey in the meantime, and in my view his evidence is also probably influenced by his knowledge that he was a part of the events that took Mrs Paterno to Mr Hookey and that he encouraged her to have confidence in Mr Hookey's advice and recommendations.

Mr Hookey concedes that he did not explain to the plaintiff that her age or being a smoker increased the risk of her suffering nerve damage as a result of this operation, and he concedes that there was in her circumstances a high risk of that. Even were I to accept his version of what was said - and I do not in its entirety because it is so very heavily reliant on reconstruction - his explanation of the likely consequences or symptoms from nerve damage, in my view, significantly underrated them, even though severe pain is not a common result. To compare permanent nerve damage as being like pins and needles in one's foot in the long term, in my view, significantly underrated the significance of the long-term effects of nerve damage, even if they were more likely to be altered sensation than chronic pain. Again in the context of the presenting problems for which the operation was being undertaken, I consider that there was inadequate warning of the risk of the consequences of nerve damage and permanent symptoms from it. [78]

[435]

While I agree that the evidence does not support that Mrs Paterno's chronic ongoing jaw pain was caused by the nonunion of bone, I am satisfied that she had suffered significant injury as a result of it. It is clear that there was in fact nonunion of bone on the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a 'bucket handle' effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.

In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.

Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was 'settling' by which he says he was not referring specifically to pain but the overall operation result. By early November [he] had decided to schedule a reopening of the right split site, as a result of her continuing complaints of pain.

Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and numbness respectively.

Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hosking or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.

Mr Ian Carlisle believed that there had been damage to the inferior alveoloar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the nonunion was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said 'any nerve that's been damaged can go on and perform and behave in a way that can cause unremitting pain'. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.

A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff's pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage. I note that despite Mr Carlisle's protracted attempts to alleviate her ongoing pain without success, he still said that he had always believed her complaints of pain to be genuine. In my view Mr Carlisle was in a better position to assess the plaintiff's condition over a considerable period of time, and in this case I would accept his view on the likelihood of nerve damage over that of Dr White, despite his area of speciality, especially as it is supported by the opinions of both parties' 'expert' maxillofacial surgeons.

I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno's jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injections such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve caused in the original surgery.[94]

[463]

In addition to the five remedial operations and the ultimate result of continuing to experience chronic pain on the right side of her face, the plaintiff has been left with permanent numbness in her lower lip and a structurally altered mouth that still affords her difficulty chewing, and such that at times her ability to speak is distorted. Her strong medication may well contribute to her slurring of words, dribbling and slackness of the right side of her mouth, but there is no doubt that structurally her mouth has been changed, that the lip is numb, and even were she to be weaned from the extent of medication she currently takes, these disabilities will not be fully corrected. She has permanent scarring on both sides of her neck as a result of the surgery in December 1999 by Mr Carlisle and Mr Redman, who needed to approach the mandible from outside and through her skin. The appearance of her face will remain asymmetrical, noticeably extended on the right side compared with the left.

A further enormous effect on the plaintiff has been the side-effects of large and continuing quantities of medication. As a consequence of prolonged use of opiate-based drugs, she has suffered severe bowel side-effects, to the extent of at least twice being hospitalised for those. This has reached a stage where as her husband describes, she needs to counter constipation with substances that cause her to lose control of her bowels while heavily sedated, and she soils her bed regularly.

...

Also of significance has been the quantity of medication which she has needed for various consequences of her injuries. The precise drugs and dosages have been changed over the years, but since at least early 2000 there has been a large quantity of medication to address pain, anti-depressants, and various medications for the gastric complications from other medication.

The effects of her injuries have very dramatically and seriously changed the plaintiff's life. Beyond mere ageing, she presents now as a different person from the one filmed in March 1997, admittedly at a joyous occasion and 'dressed up'. I accept that the overall change has been to impose on her chronic intractable pain, only partially alleviated by large quantities of in itself debilitating medication. She has lost a lot of weight and is physically weakened. I accept that she feels dependent, and at times humiliated by the extent of her reliance on her husband for physical assistance. She has lost all confidence to socialise outside her family, and is described by Dr Lavoipierre as now virtually a recluse, needing constant assistance and also supervision for her pain, depression and anxiety.[111]

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Cases Cited (11)