AMPUTATION : ANKLE : PAIN : PROVISIONAL DAMAGES : SURGICAL PROCEDURES : LIKELIHOOD OF RISKY OPERATION BEING UNDERTAKEN : CONSEQUENTIAL CHANCE OF AMPUTATION REQUIRING PROVISIONAL AWARD : s.32A SENIOR COURTS ACT 1981
A provisional damages award was appropriate where there was a real and not just fanciful chance that despite the risks to his limb and to his life, the applicant would undertake a fusion operation and although the chance of an amputation occurring afterwards was small, it was not negligible.
The applicant (C) applied for an order for provisional damages against the respondents. C had sustained serious injuries to his right lower leg in a road traffic accident. C issued proceedings against the first respondent, who had been responsible for the accident, and against the second respondent NHS Trust, because he claimed that surgical treatment carried out after the accident was negligent compounding his persisting symptoms and disabilities. The parties agreed the measure of damages. The only issue was whether that sum should be paid as provisional damages to take account of the possibility that C would undergo a fusion operation on his ankle at some point which could lead to a below knee amputation. C, relying upon his expert's evidence and his medical evidence submitted that there was a chance that he would have a fusion operation and if he did that there was a serious risk of complications developing, some of which could lead to the need for amputation and the risk of that occurring was real and not fanciful. The respondents submitted that C had first to establish on the balance of probabilities that he would undergo the operation which could lead to substantial deterioration in his physical condition before assessing the chance that his condition would seriously deteriorate. Because of the risk factors associated with the fusion surgery it was unlikely that a surgeon would advise C that it be undertaken. Even if that happened, because of C's fear of losing his lower leg, and the risk to his survival he would be unlikely to go ahead, but if he did, although there was an appreciable risk of complications developing, amputation was an extremely remote possibility.
HELD: A provisional damages award was entirely appropriate. It was in the interests of the parties to reach a settlement, but there was a real chance that C would suffer further extremely serious physical damage. Under the Senior Courts Act 1981 s.32A it was for the party applying for a provisional damages award to establish on a balance of probabilities that there was a chance that at some time in the future he would suffer some serious deterioration in his physical condition. That chance was established by less than a balance of probabilities standard, otherwise the event would be a certainty warranting the award of an ascertained sum, not provisional damages. Section 32 did not impose different standards of proof to each of the component parts making up a chance that serious deterioration in the applicant's physical condition would occur, Willson v Ministry of Defence (1991) 1 All ER 638 QBD applied. The question in the instant case was whether the chance of an amputation occurring was measurable rather than fanciful, Willson applied. The most likely pathway to amputation was C undergoing a fusion operation. For the chance of an amputation to arise, certain events would have to happen and the experts differed in their assessment of the likelihood of those events occurring. It was agreed that a number of features affecting C's physical condition added considerably to the risks of such surgery: to his life and not just his leg. Also, a fusion operation may not succeed and the problems following on from that could lead to a decision to amputate. There was a real chance that C's ankle would deteriorate and if it did, the severe pain he was already experiencing would increase. Increasing and intolerable pain could lead C to decide to undergo a fusion operation. C's pain had progressed to the point where it appeared that he was contemplating surgery. The decision to operate would be a difficult one and would depend upon a number of factors which could change over time, including the level of pain and C's general health. However, there was a real and not a fanciful chance that C would undertake fusion surgery at some time in the future and if he did, there was a significant risk that he would develop complications. If that occurred, because of his general health, he was at risk of a serious infection. The chance of amputation occurring after such an infection might be small, but it was not negligible. It was difficult to ascribe a precise percentage to it, but if forced, it would be about two per cent. The award would be provisional for a period of three years because five years had elapsed since the accident.
For the applicant: Mr Coleman
For the respondents: Miss Perry QC
For the claimant: Henmans Freeth
For the defendants: Just Law
LTL 20/10/2009 Document No. AC0122378 Reproduced by kind permission of Lawtel (www.lawtel.com)