Chewings v Williams and Another
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE SLADE |
| Judgment Date | 21 August 2009 |
| Neutral Citation | [2009] EWHC 2490 (QB) |
| Date | 21 August 2009 |
| Court | Queen's Bench Division |
| Docket Number | TLQ/09/0840 |
[2009] EWHC 2490 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mrs Justice Slade
TLQ/09/0840
MR COLEMAN (instructed by Henmans) appeared on behalf of the Claimant.
MISS PERRY QC (instructed by Just Law) appeared on behalf of the Defendants.
: This is an application by Leonard Chewings for an order for provisional damages pursuant to the County Courts Act 1984 s.51. This provision is in the same terms as the Supreme Court Act 1981 s.32A. Mr Chewing sustained serious injuries to his right lower leg in a road traffic accident on 29 th August 2004. The accident was caused by the negligence of the First Defendant but Mr Chewings' case has been that his persisting symptoms and disabilities have been greatly compounded by allegedly negligent surgical treatment he received following his admission to Bridgend Hospital after the accident for which the Second Defendant is responsible.
Proceedings were issued in the County Court. The parties reached agreement on 6 th August 2009 as to the measure of damages to be recovered by Mr Chewings in consequence of the accident. Clause 3 of the Agreement provided:
“The sole issue which the Judge is to be asked to determine is whether an order should be made in the Claimant's favour under section 51 of the County Courts Act 1984 whereby the agreed sum of £160,000 is to be paid as provisional damages, reserving the right for the Claimant to claim further damages within the further period of five years commencing 18 th August 2009 should he suffer a below knee amputation of his right leg as a result of the negligence of the Defendants or either of them.”
Section 32A of the Supreme Court Act 1981 provides as follows:
“Orders for provisional damages for personal injuries.
(1) 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.”
Anthony Coleman for the claimant and Jacqueline Perry QC for the defendants are agreed that Mr Chewings suffered an extremely serious, rare and complex injury to his right ankle in the car accident. The serious deterioration contemplated by the application is below knee amputation. The way in which this could occur is if Mr Chewings undertook fusion surgery.
Two issues arise for determination on this application: (1) whether the claimant has established on the balance of probabilities that there is a chance that at some definite or indefinite time in the future Mr Chewings will, as a result of the accident, suffer a below knee amputation of his right leg; and (2) whether in the exercise of the court's discretion the agreed damages of £160,000 should be provisional or final.
Mr Chewings made four statements dated 10 th October 2007, 17 th March and 5 th November 2008, and 6 th August 2009. At the hearing before me he was cross-examined. The claimant also relied upon the expert evidence of a consultant orthopaedic surgeon, Mr Gillam. The defendants relied on the expert opinion of another consultant orthopaedic surgeon, Mr Ackroyd. Mr Gillam is a consultant orthopaedic surgeon at Horton Hospital, Oxford, Radcliffe NHS Trust. He has a special interest in upper limb and ankle surgery and trauma reconstruction, particularly ankle and wrist fractures. Mr Ackroyd has many years experience as a consultant orthopaedic surgeon. He has more recently specialised in lower limb arthroplasty surgery, especially surgery of the knee. Mr Gillam produced three reports dated 17 th July 2006, 18 th July 2007 and 17 th November 2008 and wrote four letters dated 28 th September 2006, 2 nd October 2007, 30 th June 2009 and 19 th July 2009. Mr Ackroyd produced a report dated 10 th December 2008 and a letter dated 29 th July 2009. The consultants produced a joint report dated 22 nd April 2009. Both experts gave oral evidence.
In the course of the hearing it became clear that the experts were in agreement that the event which could lead to below-knee amputation was a fusion operation. For the sake of convenience and not in any way intending to minimise its complexities I will refer to the procedure as “fusion surgery”. Fusion surgery would be undertaken to alleviate the poor condition of the right ankle initially caused by the accident.
The parties were not in agreement on the following questions which are relevant to the two outstanding issues to be decided on this application:
(1) whether, in establishing that there was a chance that he would suffer a below knee amputation, Mr Chewings had first to prove on a balance of probabilities that he would undergo the operation which could lead to the need for an amputation;
(2) whether the risk of an amputation was more than fanciful;
(3) if Mr Chewings established that there was a more than fanciful chance that he would suffer an amputation, whether discretion should be exercised to make an order that the agreed sum of £160,000 be paid as provisional damages;
(4) if a provisional damages order is made, the period for which it should apply.
Is Mr Chewings required to establish that, on a balance of probabilities, he will undergo a fusion operation?
Jacqueline Perry QC for the defendants submitted that, in order to establish that there is a chance that he will suffer an amputation and so satisfy the requirements for the making of an order for provisional damages, Mr Chewings has first to overcome a hurdle of proving, on a balance of probabilities, that he will undergo fusion surgery. If he fails to do so, his application must be dismissed. Miss Perry frankly acknowledged that her contention was not helped by the wording of Section 32A, nor was she aware of any authority in support of her proposition. She referred to the judgment of Scott Baker J (as he then was) in Wilson v Ministry of Defence [1991] 1 All ER 638. In that case Scott Baker J considered the case of a man who had injured his ankle at work. An application for provisional damages was made on the basis that he may develop arthritis as a result of the injury to the extent that surgery was required or that he may fall as a result of the ankle giving way. As for the latter possibility, Scott Baker J observed at page 643C:
“There is, in my view, a chance that he may suffer such an injury in the future but it seems to me to be entirely speculative as to the nature and gravity of the injury that he may suffer.”
As with Section 32A, in the event Miss Perry did not gain much support from Wilson for her argument that an applicant for provisional damages has first to establish on a balance of probabilities that the event which may give rise to the serious deterioration in his physical state will occur before it becomes relevant to consider to a lesser standard of proof the chance of serious deterioration. Miss Perry submitted that, on the facts, Mr Chewings had not established on the balance of probabilities that he will undergo the fusion surgery which may lead to a deterioration in his physical condition. She referred to a number of factors supporting this contention. These will be set out later in this judgment. In the circumstances, Miss Perry said that it “beggars belief” that Mr Chewings would have fusion surgery. Accordingly, in her submission he does not progress beyond the first base of proving, on the balance of probabilities, that he would have fusion surgery.
Mr Coleman challenged Miss Perry's contention that an applicant for a provisional damages order had first to establish on the balance of probabilities that he will suffer the event which could lead to substantial deterioration in his physical condition before an assessment is to be made of the chance that his physical condition will seriously deteriorate. He submitted that Section 32A is straightforward. It is for the claimant to prove on a balance of probabilities that there is a chance that at some time in the future the injured person will as a result of the act or omission which gave rise to the cause of action suffer some serious deterioration in his physical condition.
In my judgment, Mr Coleman's submission is correct. Section 32A imposes a single test. It is for the applicant for a provisional award of damages to establish on a balance of probabilities that there is a chance that at some time in the future he will suffer some serious deterioration in his physical condition. The chance is established by less than a balance of probabilities standard. If that standard were satisfied, the event would not be a chance but a certainty not warranting provisional damages but the award of an ascertained sum. There is no warrant for imposing a preliminary hurdle to overcome to a balance of probabilities standard of proof that an event which may lead to deterioration in the applicant's physical condition will occur.
Far from supporting Miss Perry's argument, the judgment in Wilson illustrates that Section 32A does 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 will occur. Of the chance that Mr Wilson would suffer serious injury because he was more liable to severe injury of the inversion type because of the...
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