Jodi Gordon: Prosthetic provision must be based not on cost but on ability to return people to '˜normal' life

Restitutio in integrum is a Latin term meaning restoration to original condition. It is one of the guiding principles behind awarding damages in Scots Law. Following the negligent act of another, compensation for injury and loss is assessed on the basis of attempting to put the claimant back into the position they would have been in but for the negligent act that caused their injury. How should such damages be assessed if the claimant has suffered the loss of a limb?

Jodi Gordon

In the case of Adam Wagner v Thomas Grant & Arla Foods UK PLC, Lord Uist made the decision that Adam, who had lost his lower left leg, was entitled to a basic prosthetic as recommended by the Defenders. This was despite the fact that, in evidence, Adam stated that the very simple tasks that people take for granted, like going up and down stairs, were difficult for him with this limb.

Acting for Adam, Motorcycle Law Scotland (MLS) had instructed Mr Moose Baxter, Prosthetist at Dorset Orthopaedic to assess Adam. He recommended a BiOM limb which used modern biomechanics to propel the user and reduce the exertion on the body.

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Despite this, Adam was not awarded monetary compensation to enable him to purchase the BiOM limb. When making the decision, Lord Uist stated, “In response to the question from me, he (Moose Baxter) accepted that what he was proposing was a ‘Rolls Royce’ prosthetic arrangement.” In short, the Court decided that the BiOM limb was too costly and too high end for Adam.

But why shouldn’t an individual who has lost a limb as a result of the negligence of another be entitled to the best available if it can be seen to benefit his recovery and quality of life? The principle of the law, which seeks to compensate a Pursuer so as to allow them to return to their pre-injury life as far as possible, would seem to suggest that the ‘best’ is most definitely the ‘best’.

In September 2014, Kevin Meldrum approached MLS following a serious motorcycle incident which resulted in him having a below-knee amputation of the left leg. The case was intimated against Fife Council due to the negligent driving of one of their employees. As the case progressed, it soon became clear that the main issue in dispute was going to be the cost of the prosthetic limb. The BiOM limb had been upgraded to the emPOWER. The basis behind the limb was the same; it allowed for active propulsion to assist the user and again reduce the exertion on the body.

Following Uist’s previous comment that the BiOM represented a ‘Rolls Royce’ provision, every avenue was explored with our prosthetic expert to determine why the bionic limb was the best fit for Kevin. Kevin tested the limb and was delighted with its performance, describing it as like “night and day” compared to his NHS limb.

The issue of the provision of the prosthetic and future costs had been a matter of dispute with the Defenders opposing Kevin’s preferred prosthetic provision on the basis of a cheaper alternative. However, on the very morning the case was due to be called in court, an offer was made in settlement.

This was clearly a success story. Lord Uist’s comments in the Wagner case had been out of step with previously reported decisions.

The technology for prosthetic systems is constantly evolving, offering amputees solutions that can allow them to return to near pre-accident levels of functioning. A Pursuer is entitled to damages to meet his or her reasonable requirements. So, if a Pursuer wishes funding for a prosthetic arrangement taking into consideration the latest technology and advances, it should play no part that another version is cheaper.

After all, the ‘Rolls Royce’ standard is the limb that was lost.

Jodi Gordon is associate solicitor with Motorcycle Law Scotland