Mike Hill, Barrister
The Tyne Bridge in silhouette

Valuing Pain and Suffering in Dental Negligence Cases

£25,000 General Damages for Toothache?
Is this the new reality for Dental Claims?

Does Steele v Home Office (2010) Change Anything?

The Court of Appeal handed down Judgment in the case of Michael Steele v The Home Office [2010] EWCA 724 in June 2010 and it is the most recent Court of Appeal authority on quantum of damages for dental pain and suffering. Some say it changes the level of damages achievable in dental claims but does it?

The Facts

The Home Office appealed the decision of HHJ Bailey a year earlier when he awarded Mr. Steele £66,400 inclusive of interest in respect of toothache suffered over almost seven years because the Prison Service had failed to provide him with appropriate dental care.

Mr. Steele was a “Category A” prisoner having been convicted on 3 counts of murder in 1998. For obvious reasons the Court of Appeal (Civil Division), made up of Lord Justice Laws, Lord Justice Carnwath and Lady Justice Smith, sat at Woolwich Crown Court.

The appeal concerned issues of liability where The Home Office submitted firstly that the Judge had imposed an excessive duty on the Prison Service and that he had not been entitled to find that the Service operated a “one dentist, take it or leave it” approach. The second ground of appeal was that, once Mr. Steele had refused to be treated by a certain dentist, any breach of duty ended. The third ground, with which we are concerned here was as to quantum.

Assessment of the loss

On quantum, The Home Office complained that the Judge had over-stated the severity of Mr. Steele’s toothache and that even if he had not, he had simply awarded too much.

The Court (Principal Judgment from Lady Justice Smith) dealt swiftly with the first complaint. She referred to the evidence of Professor Angus Walls, Professor of Restorative Dentistry at Newcastle University, that pain associated with a tooth abscess was “arguably one of the most debilitating forms of pain” and that because Mr. Steele had been taking analgesics for other conditions he had not needed to seek further analgesia from the various prisons he had been in.

The facts as to pain found by HHJ Bailey had been as follows:

  1. There had been “really serious chronic pain” in two phases totalling 3 years and 10 months;
  2. There had been “periodic pain of a more moderate order” for periods totalling 2 years and 4 months;
  3. There had been a period in 2006 where irreversible pulpitis had caused “very serious continuous pain” and Mr. Steele’s evidence that that persisted for “something like three years” was accepted;
  4. Mr. Steele’s evidence was also accepted that the pain kept him awake at night and caused him stress during the day.

HHJ Bailey and the Court of Appeal also approached the case on the basis that “there had been a significant deterioration in the overall condition of [Mr. Steele’s] teeth.”

Assessment of the award

The starting point for both courts appears to be a little odd. The higher court agreed that there was little assistance from reported cases. Whilst it is true that there are no cases with identical facts, (In JC v Home Office 2006 LTLPI 25/08/2006 the claimant lost four teeth because of a 6 month delay in treatment by the Prison Service) there are innumerable case reports of negligence-induced pain and suffering, tooth loss and dental deterioration over various periods including 7 years.

HHJ Bailey had referred to a Judicial Studies Board Guideline “which suggested that, for severe toothache lasting one week, disturbing sleep and causing stress during the day, an award of £500 would be appropriate.” At that time, 2009, the current Guidelines were the 9th edition and the layout was as it is in the current 10th edition. In that layout there are only four categories that describe “loss of or serious damage to” various different teeth. Looking back at the Guidelines as far as 2002 (6th Edition) there has been no guideline to the effect as referred to by HHJ Bailey. There is no mention of a sum per week and it is unknown where that apparent guideline came from.

The court at first instance had based everything on that figure. £49,750 was arrived at by multiplying half that figure by 199 weeks for the period of “really serious chronic pain.” £10,000 was added for the periods of “periodic pain of a more moderate order” to reach a notional total of £60,000. There followed an acknowledgment that awards cannot be built up in that way and the final sum was reduced from £59,750 to £45,000.

The higher court then compared the award with lung diseases including emphysema, and continuing severe back pain and concluded that “the judge’s award in the present case is out of line by quite a substantial margin.”

The Home Office referred to two Lawtel Quantum reports. Woodhouse v Hemsley [2004] was considered of little assistance because whilst there had been loss of 11 teeth as a result of periodontal assessment and treatment failure over 13 years the case did not specifically relate to suffering long term pain. Toone v Penney [2003] was considered unhelpful simply because the damages awarded in it were considered too low.

Mr. Steele represented himself. He invited the court to uphold the award and stressed that it was worse for him because he was locked up for much of the day. The court was unsurprisingly unsympathetic to that submission.

Nevertheless an award of £25,000 was made for general damages. If one considers that the total period of pain was, on the facts found, 6 years and twomonths then that equates to approximately £78 a week for pain and suffering, or just over £4,000 per annum.

How does that sit with the long term periodontal mismanagement cases and the simple delay cases?

In simple delay cases where a potential claimant does not lose a tooth but suffers toothache through failure to diagnose and/or refer it is not unusual to see periods of 6 -12 months before a problem is resolved. If the evidence is that the pain is “serious” and “more moderate” in a ratio of 2:1 for those periods (as in Mr. Steele’s case) then a 6 month delay case would be worth, on the basis of Steele, approximately £2,000 without a tooth loss. A 12 month delay case is worth approximately £4,000 on the same basis. That certainly seems to be outside the range of awards that is normal at present.

12 months of serious and moderate pain with loss of an anterior tooth would be in the region of £6,000. This, it has been heard said, is the new reality for dental claims even though that appears to be well outside the Guidelines.

Whilst it is true that dental awards outside the Guidelines are more common than in other personal injury and clinical negligence cases, it needs to be remembered that the Guidelines themselves make allowance for that: “Awards may be greater where the damage results in or is caused by protracted dentistry.”

It remains to be seen but has to be unlikely that Steele v The Home Office will make such a significant difference to awards. The factual scenario is very case-specific: There was a wholesale refusal to provide care rather than a failed attempt to provide care or a failure to diagnose through negligence. Whilst there were no exemplary or aggravated damages, that refusal is different to those cases where dentists are treating patients, but to a standard that is unacceptable.

The level of pain found as a fact is unusual too. In the protracted periodontal cases not many patients can convince a court that for almost two-thirds of the time they were in serious pain and periodic moderate pain for the other third. It was accepted also that the irreversible pulpitis that was evidenced in 2006 lasted for approximately three years. Irreversible pulpitis appears from a distillation of various expert dental reports to be a much shorter-lived phenomenon, certainly at the levels of serious pain described.

I have not addressed the issue of special damages in this article though it is interesting to note that the Court of Appeal expected a private dentist to treat Mr. Steele in prison and awarded him some £16,000 in specials. I will refer in another of these intended occasional articles to the issue of specials and the complications of the remedial treatment being provided free by hospitals or, for example, because the Claimant becomes pregnant.

Conclusion

In conclusion, unless the pain profile over a multi-year span matches that of the unusual pain profile that the Court of Appeal found in Mr. Steele’s case, the level of general damages, whilst still more likely to stray outside the Guidelines than in other personal injury categories, will more likely than not remain consistent with the majority of awards and out of court settlements routinely awarded. It would be a brave Claimant to press on to trial on the simplistic basis of £78 per week for pain and suffering over and above any tooth loss and remedial treatment costs.

Mike Hill
Barrister
Trinity Chambers
Newcastle upon Tyne and Middlesbrough

Web design and development by Cascata
© Mike Hill 2012. Contact Mike