Amputations and provisional damages

September 28, 2021

Christopher Barnes

The case of Witcomb v JKP Solicitors [2021] EWHC 2038 (QB) is perhaps a cautionary tale.

The claimant suffered serious injuries to his leg following an accident in 2002. In 2009 a settlement was agreed. His condition subsequently worsened and he underwent below-knee amputation in 2017.

At the time of settlement he was advised of the final nature of the settlement and it was emphasised that he would be unable to claim further damages if future surgery were unsuccessful. His lawyers were subsequently sued on the basis of their failure to adequately investigate the potential risks and their failure to advise him about the possibility of claiming an award of provisional damages. The judgment itself relates to a technical limitation issue that is largely specific to the particular facts, but the report serves to remind practitioners of the importance of considering longer term risks and the potential for provisional damages, and of advising ones client in relation to them. In reality, defendants will frequently refuse to countenance a settlement on such a basis but the lay client is then in a position to make an informed choice as to whether to litigate that issue to trial.

By way of reminder, the power to award provisional damages is contained within s32A of the Senior Courts Act 1981. S32A(1) provides that:

This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

Defendants will often rely on the well known case of Wilson v Ministry of Defence [1991] 1 All ER 638 in seeking to argue that a risk of deterioration is not a “clear and severable risk” but is just a case of continuing deterioration (N.B. in that case an award of provisional damages was held to be inappropriate where the future risk was the development and progression of osteoarthritis). That is, however, both to misapply what was said in Wilson and to ignore the balance of the caselaw. Awards for provisional damages relating to the future risk of amputation (in serious orthopaedic cases) were made in both Chewings v Williams [2010] PIQR Q1 and Butler v Ministry of Justice [2015] EWHC 3384 (QB). In Chewings the risk of amputation was assessed at 2%. The judge held that the risk was more than fanciful and noted that “in my judgment, Mr Chewings’ situation is the very situation for which an award of provisional damages is entirely appropriate” (para. 34). A similar conclusion was reached in Butler even though, in that case, the risk was rather more complex/nuanced (i.e. there was a 25% chance of amputation and, thereafter, a 25% chance that the claimant would develop CRPS or phantom pain or that the stump would fail to heal). It is of note that there are (non-amputation) cases where provisional damages have been awarded where the risk of deterioration is very small indeed – see, for example, the case of Kotula v EDF Energy Networks & others [2011] EWHC 1546 (QB) in which an order for provisional damages was made despite the risk of development of a syrinx, following a spinal injury, being only 0.1%. It is further of note that any such order can be time limited (and it was, in both Chewings and Butler, with the order limited in those cases to periods of three and twelve years respectively). The appropriate period during which any risk may arise will be one of the issues for consideration by the court and is an issue on which expert evidence is required.