“Ok, let’s resume. This morning we covered the accident itself, and we stopped for lunch after discussing your arrival in hospital, the emergency surgery and the medical diagnosis. Are you ok to continue from there?”
Denise nodded. “I am.”
Her lawyer looked at his notes then asked, “So when did you first discover the impact on your…” He paused imperceptibly, enough to show he was choosing his words tactfully, “Bathroom habits.”
Denise winced anyway. “An hour or two after the anaesthetic wore off,” she said, “I suddenly had the sensation of needing the toilet and had to call the nurse. She came over, I explained and she went to get a bedpan. And…” Denise stopped speaking, clearly trying to fight back tears and took a sip of water from her glass.
“Take your time,” said the Judge, “We know this must be difficult for you.”
Nodding briefly in gratitude Denise put down her water and looked back at her lawyer. “It was so humiliating,” she said, “I didn’t know where to look.”
The lawyer paused sympathetically before asking, “And after that, how did the medical staff treat you?”
“They were kind,” said Denise, “they acted as though there was nothing out of the ordinary.”
“They didn’t tease or taunt you about the diapers?” asked her lawyer, “Call you names or demean you in any way?”
Denise shook her head. “No, they were very professional. I felt so lucky to have their support,” she admitted.
“So you have no complaints to about the hospital?” asked her lawyer, seeking a response that would let him place sole blame on her employer.
“They did their best to help,” said Denise, “I mean, they left me in this sorry state but it’s not their fault.”
Her employer’s lawyer scowled at that, a chance to shift liability receding away from her. Her own lawyer gave a supportive smile then continued the questioning.
“After you left the hospital,” he said, “did the issue change? Did it get better or worse?”
“It didn’t change,” said Denise, “I’ve been like this since.”
She burst into tears, causing another break for some water, the Judge and her lawyer both showing patience while she regained control.
“Feeling ready to continue?” asked her lawyer, and in response to her answering nod asked, “So this will be hard for you, I’m sorry, but could you tell us how this has impacted you? What it’s done to your daily life?”
Denise thought for a moment. “It’s been horrid,” she said, “I feel I’ve lost all my confidence. Instead of just living normally I’m constantly checking for the nearest bathroom and worrying when I don’t know where it is. I’m wearing clothes that are quicker and easier to remove and replace, or a skirt I can just lift out of the way. Everything’s changed.”
Her lawyer had expected this response, it had been her reply during their practice runs. He needed more though, and knew the question to ask. “Sorry to be so explicit,” he apologised, “but what about your diapers.”
Denise shivered and looked at him. This time she didn’t cry, but took a sip of water before responding anyway. “It’s awful,” she said, “I always worry that people will ask me about them. Ask me why I need them.”
“Do they?” asked her lawyer.
“No,” admitted Denise, “but there’s that constant worry that they will. I see them looking at me, wondering. It makes me scared to talk to them, in case they do ask.”
The Judge intervened with a question of his own. “If that did happen, how would you respond?”
Denise looked up at him in shock. “I don’t know,” she said, “I keep trying to think how to explain and, none of it makes sense in my head.”
“Sorry,” said the Judge, “Thank you for answering, that will help me. Any further questions?”
This last query was directed at Denise’s lawyer, who shook his head. “No Your Honour,” he said, “I think we’ve demonstrated the impacts on my client quite sufficiently to prove harm.”
The Judge wisely chose not to confirm or deny whether he agreed but instead gestured to the employer’s lawyer. “Any questions you’d like to put to the victim?”
She nodded at the Judge, stood up and approached Denise. “Please, tell me,” she said, “and I hope this doesn’t distress you too much. Do you know whether you need the toilet right now?”
Denise nodded. “I can tell.”
“Do you?” asked the lawyer.
Denise looked stunned at the question but answered anyway. “I do.”
“I’ll be quick then,” said the lawyer, “but please, help me understand. If we adjourn for a break in a few minutes will you be able to wait until then, and then successfully use the toilet?”
Denise looked angry at that. “Yes,” she said, “Of course I would.”
The lawyer nodded. “If we took another hour, maybe even two, would you be able to hold it that long?”
Denise sighed at her. “It would hurt!” she protested.
“I understand,” said the lawyer, “but could you hold it?”
Denise started to cry yet again. “Yes,” she sobbed.
The lawyer gave her some time to dry her eyes but then continued regardless. “I take it today isn’t unusual for you now?”
Denise shook her head.
“Sorry, I need you to answer,” said the lawyer.
“No.” whispered Denise.
The lawyer stopped, stared at her and asked gently, “So the accident at work has, against your will or otherwise, through no fault of your own, removed your incontinence?”
Denise looked at her, surprised to be given a chance to state it so clearly. “Yes!” she said, “That’s why we’re here.”
The lawyer shook her head in disbelief and spoke out to the Judge. “Your Honour, we submit that there is no case here to answer. Motion to dismiss as causing continence is not an actionable harm.”
The Judge waved down Denise’s lawyer before he could even stand and object. “Motion denied,” he said, “But since you seem to be finished, court will adjourn for, let’s see, 20 minutes.”
The employer’s lawyer looked confused by that. “Your Honour, we’ve only just returned from lunch.”
The Judge banged his gavel. “Yes,” he said, “but my diaper needs changing.”
The Clerk spoke at that point, “All rise.”