ATE Insurance in Action: Provisional Damages and Future Risk

Daisy Lynch v The Princess Alexandra Hospital NHS Trust

By Oliver White, Underwriter

Estimate read time 1 minute 49 seconds

This case concerned the Court’s approach to provisional damages and provides a useful illustration of how future risks are assessed when determining whether a claimant should retain the right to return to court if their condition deteriorates.

The claim arose from admitted clinical negligence following a failure to diagnose and treat developmental dysplasia of the claimant’s left hip. It was agreed that, had the condition been diagnosed earlier, non-invasive treatment would have avoided the need for surgery. Instead, the claimant underwent multiple operations, ultimately requiring a total hip replacement and facing the prospect of future revision surgery.

The claimant sought provisional damages under section 32A of the Senior Courts Act 1981. Such awards may be made where there is a measurable chance that a claimant will suffer a serious deterioration in their condition at some point in the future.

The Court applied the well-established principles set out in Wilson v Ministry of Defence, considering:

• Whether there is a chance of the deterioration occurring.
• Whether that deterioration would be serious.
• Whether the Court should exercise its discretion to award provisional damages.

The claimant relied on a number of future risks, including implant failure, complications associated with future revision procedures and the possibility of requiring a Girdlestone procedure.

In considering seriousness, the Court reiterated that: “It must be such that an award of damages which included a sum for the chance would be wholly inadequate to compensate the claimant for the position in which he would find himself once the chance had materialised.”

The Court was not persuaded that the risks associated with implant failure and future complications justified provisional damages. It concluded that the claimant had not demonstrated a sufficient likelihood of a serious deterioration arising from those risks and that a conventional award of damages would adequately compensate her position.

The Court reached a different conclusion in relation to the risk of a Girdlestone procedure. Although the risk was less than 1%, the consequences would be profound if it occurred. The Court considered this risk to be “clear and severable” and therefore suitable for provisional damages, preserving the claimant’s right to return to court should that deterioration arise.

The Temple Perspective

This judgment demonstrates that even a very small future risk may justify provisional damages where the consequences are sufficiently serious and clearly identifiable. Equally, it highlights that not every potential complication will meet the required threshold. For practitioners, the case provides a useful reminder of the distinction between speculative future risks and those that may justify the court reserving a claimant’s right to seek further compensation in the future.