Kotula v EDF Energy Networks (EPN) Plc & Ors [2011] EWHC 1546 (QB)

[2011] EWHC 1546 (QB)

Case No TLQ/09/1067

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/06/2011

Before

MR JUSTICE IRWIN

Between

ALEXANDER KOTULAClaimant

(1) EDF ENERGY NETWORKS (EPN) PLCDefendants

(2) MORRISON UTILITY SERVICES LIMITEDDefendant

(3) BIRCH UTILITIES LIMITEDDefendant

Mr David Westcott QC & Mr Nathan Tavares (instructed by Stewarts Law LLP) for Claimant

Mr Mark Turner QC & Mr Steven Snowden (instructed by Kennedys LLP) for Defendants

Hearing Hearing dates: 19 and 20 May 2011

Judgment

Background

[1]The Claimant is a T6 paraplegic having sustained spinal cord injury in a road traffic accident on the 28th September 2006. The accident occurred whilst the Claimant was wheeling his bicycle through road works in the village of Park Street near St Albans. The road works had been left in a dangerous condition, he alleged, and in consequence he attempted to negotiate them but was struck by a heavy goods vehicle travelling past the works. As a result he sustained spinal injuries, internal injuries including a left haemopneumothorax, and a ruptured spleen. He also sustained a brachial plexus injury affecting the left arm. His spinal cord injury is complete at the T6 level.

[2]The Claimant was in hospital for seven months and has been left with permanent paralysis affecting both legs and a degree of compromise to his left arm. He is dependent on a wheelchair for mobility and is unlikely ever to be able to walk.

[3]Liability and contributory negligence were dealt with by way of preliminary issue, in a trial commencing on 8 June 2010. During the course of the trial, the Defendants consented to judgment on primary liability but the issue on contributory negligence was sustained. However, at the conclusion of the trial the judge held there was no contributory fault and the Defendants are therefore one hundred percent liable for any relevant damages.

[4]The Defendants appealed the trial judge’s finding on contribution but the appeal was subsequently withdrawn on a conditionally compromised overall settlement. The terms of the conditional settlement had been contained in a Tomlin Order agreed on 10 February 2011 and sealed by the court on 18 February. In summary form, the settlement provides for a gross lump sum payment of £2.5M and periodical payments for future care and case management linked to the ASHE 6115 earnings index at the following rates over the following periods:(i) £30,000.00 pa until the Claimant’s 45th birthday

(ii) £40,000.00 pa from 45 to 55

(iii) £60,000.00 pa from 55 to 65

(iv) £85,000.00 pa from aged 65. Periodical payments were also agreed for future loss of earnings at the rate of £16,000.00 pa until the age of 65.

[5]The parties are unable to agree on one issue, which has led to the hearing before me. It is accepted that the Claimant has a risk of suffering post-traumatic syringomyelia. The Claimant has been pressing for a provisional damages award and an order permitting variation of the periodical payments, should the contingency arise. The Defendants resist that. The parties did agree so far as to stipulate in the Tomlin Order that the settlement figures and payments set out in the Order would be treated as provisional or variable or otherwise, dependent upon a ruling as to whether a provisional damages claim and an application to vary the periodical payments were appropriate. The parties also confirmed to me that they are agreed that those two questions should be treated as one. That is to say, that the Claimant should either be permitted the opportunity in the future to claim further lump sum damages and variation of the periodical payments, or to claim neither.

Proceedings Since The Settlement

[6]The Tomlin Order sets out the steps to be taken preparatory to the trial of the remaining issues. Exchanges of reports and exchanges of views from the experts instructed for both sides have been completed. The Claimant’s expert Mr Brian Gardner is a consultant in spinal injuries at Stoke Mandeville Hospital. He has provided reports dated 20 November 2010 and 17 March 2011. The Defendants’ expert Mr A M Tromans is also a consultant in spinal injuries, at the Duke of Cornwall Spinal Treatment Centre in Salisbury. Mr Tromans has provided two reports both dated 13 October 2010. Both experts are senior and distinguished in their field and have been perfectly helpful in their written material and in the course of their discussion. They conducted a discussion on the relevant aspects of this case and produced a joint note against a prescribed agenda dated 17 May 2011. They have been very close indeed in their positions advising about this case. Mr Gardner gave oral evidence before me and was cross-examined on the first morning of the hearing. Counsel for the Defendants, Mr Mark Turner QC, was able to consult with Mr Tromans after that and concluded on advice that it was simply not necessary to cross-examine further, or to call Mr Tromans, given the close approximation of views between the two experts. As always, careful and professional evidence such as this is of the greatest help to the court.

[7]Against that background, I turn to consider the position of this Claimant in a little more detail.

The Current Medical Position and the Future Risks

[8]The Claimant was born on the 12 February 1982 and was thus 24 at the date of injury in September 2006. He is now 28. He is married with a young daughter. As I have already indicated he is a T6 paraplegic with a left brachial plexus injury leading to a reduction of power in his left arm.

[9]Mr Gardner has dealt with the compromised left arm in the following terms:

“He has significant impairment of left arm function. This is due to the combination of his stiff left shoulder, his left humeral fracture (a minor factor) and his brachial plexus lesion, predominantly in the C8 and T1 distribution. Because of his stiff…shoulder he has impaired range of motion including elevation, internal and external rotation. This is significant. His humeral fracture is mal-aligned. It does not appear to be causing him much functional difficulty. The brachial plexus injury has caused wasting of his left forearm and the small muscles of his left hand. There is mild clawing of the left hand. All muscle power in the left arm is grade 4 or 5, with the exception of fine finger control, which is grade 2, and finger flexion, which is grade 3. Sensation is present throughout his left arm but in the C8 and T1 dermatomes it is impaired and with absent pinprick sensation. Because of his left arm problems he has difficulty with transferring to both sides. It is due predominantly to lack of strength and his difficulty with lifting himself up in the transfer. He indicates that transfers to the left and to the right are equally affected. The grip of his left hand is impaired. This detracts from his ability to open things and to pick them up. Because of the residual problems in the left arm he has greater difficulty with pushing the wheelchair. He indicates that his left arm gets very tired at the region of the left shoulder.”

[10]When Mr Gardner re-examined the Claimant in November 2010 he reviewed the position in the left arm and the problems which it caused for the Claimant. He then reported in the following terms:

“There has been no significant change in his left arm. Finger flexion power in his left hand was grade 3 at the time of the last report. It is now a weak grade 4. The main problems he gets with his left hand are weak grip and poor fine finger control. The fine activities using the left hand are severely impaired. He indicates that the left arm difficulties are: 1. Difficulties with transfers to right and left 2. Impaired pushing of the wheelchair 3. Impaired fine control of the left hand 4. Difficulty with picking things up on the left”

In oral evidence, Mr Gardner confirmed that this situation had now reached a plateau. No further improvement was to be expected.

He indicates that the left arm difficulties are:

[11]Mr Gardner also summarised the neurological position in his two sequential reports as follows:

“[The Claimant] appears to have made a good recovery from any head injury that he sustained. He indicates that he has no symptomatic problems with his cranial nerves. Apart from the left brachial plexus neurological injury…he has no neurological problems in his arms. He has T6 motor and sensory complete paraplegia. This is flaccid in type. The fact that his lesion is flaccid suggests that there was infarction of the cord. Mid thoracic paraplegia means that he has no movement under voluntary control below a line at the junction of his chest with his abdomen. He has no sensation below this level. He lacks sensation from and control of his bladder, bowels and sexual organs. He lacks abdominal and paraspinal muscle control. As a result his truncal balance is poor. This interacts with his overweight status and his weak left arm to make transfers and activities of daily living more difficult.”

In his updated report of November 2010, Mr Gardner indicated that there had been no change in relation to these neurological conditions since his description quoted above.

[12]The Claimant’s level of physical activity is necessarily much reduced as a consequence of his injuries and he has gained a considerable amount of weight. Mr Tromans has remarked that he was overweight before the accident. However in 2008 the Claimant had a body mass index [BMI] of 30. By November 2010 he weighed around 15 stones at a height of 5ft. 7 ½” and had a BMI of 33.

[13]As has already been noted the Claimant suffers from a degree of bladder incontinence and some faecal incontinence leading to a degree of faecal leakage, perhaps once a week.

[14]Even with continuing excellent care, there is here unfortunately a prospect of deterioration in the Claimant’s condition with the passage of time. This is clearly behind the staged periodical payments agreed in the compromise. It is not necessary to rehearse the detail but in broad terms Mr Gardner predicted an increased need for help from the age of 40, alongside a requirement for an outdoor electric wheelchair and need for assistance with pillow positioning. By age 50 Mr Gardner predicted that the Claimant will need hoisted transfers and help with turns in bed. By age 70 he will require a night sitter. Mr Tromans agrees that there will be changing needs, and indeed changing needs, of a very similar kind, although his predictions are rather more optimistic as to the age at which such increased care will be needed. The picture is still one of progressive difficulty with function over time. It is relevant also to note that there is a diminished life expectancy in this case. Mr Gardner has suggested that the Claimant is likely to live to be 75 years of age, a reduction in life expectancy of around 10 years. That has not been challenged in any of the evidence from Mr Tromans. As always, even the most careful expert predictions such as these are filled with uncertainties and reach generalised conclusions. But it seems to me that the overall picture is a broadly consistent one. It is important to keep that picture in mind, not merely as the general backdrop to consideration of syringomyelia, but as the basis for considering the effects of any compromise proceeding from the syringomyelia.

Syringomyelia: Risks and Consequences

[15]Syringomyelia means the development of a cyst or syrinx within the spinal cord, as a complication of spinal injury. As I understand the position, the syrinx or cavity typically becomes filled with fluid and can interfere with conduction. It can also be the source of pressure on the cord which, if sustained, can and often will further compromise cord function. The size and distribution of any cysts which develop may be critical in determining the consequences. Put crudely, if a small cyst develops at a level of the cord which is already compromised, the effects may be limited. Even there however, Mr Gardner emphasised to me that, at or below the level of existing compromise in the cord, there may still be important reflexes maintained, as with this Claimant. If those reflexes further down the spinal column were further compromised or obliterated by the development of a syrinx, the consequences could be serious; for example, leading to a flaccid anus and very much worsened problems of faecal incontinence. Above the existing level of damage the effects of any cyst which develops will again depend upon the size of the cyst and the level or levels at which it arises. A small cyst developing at the level of existing compromise or just above it, is at one end of a spectrum which runs through to a large cyst affecting a number of levels up the spinal column.

[16]Both the experts agree that the risk of developing syringomyelia is rather less for this Claimant than for the average spinal cord injury patient. In his November 2010 report Mr Gardner stated that “the overall risk of syrinx is probably 15% rather than the 30% for the average mid thoracic spinal cord injured person”. Following the magnetic resonance imaging [MRI] in February 2011, Mr Gardner prepared an addendum report on syrinx in the course of which he wrote:

“His chance of a syrinx remains 15%. If he develops an asymptomatic syrinx he will need to take care to avoid abrupt pressure changes. This will mean extra care with transfers and brings forward by circa five years the need for extra help with ageing. If he develops minor clinical features (4% risk) he might have minor or sensory changes. There will be no additional increase in care need. If he developed a serious syrinx (1% risk) his problems could include faecal incontinence from a lax anus, or hand weakness if the cord syrinx extended to T1. This would result in an increased need for help with ADL tasks and transfers. His life expectancy would fall a little.”

[17]Mr Tromans’ report of 13 October 2010 put the matter rather more generally:

“There is a risk of him developing post-traumatic syringomyelia. The risks are probably lower than the average because of the nature of the spinal cord infarct, but the MR scan undertaken whilst in Stanmore suggested there was damage to the meninges at the level of the cervicothoracic junction, where the brachial plexus injury occurred. Therefore there is potential for secondary neurological changes occurring at this level.”

[18]In discussion Mr Tromans considered that the overall risk of syrinx was around 10%. The risk of minor clinical features was of the order of 5%. The risk of the development of significant clinical features was agreed at around 1%.

[19]The experts were then asked to consider three questions which, with the answers given, are worth setting out here:

“2.3 Should there be neurological deterioration how high up the spine might neurological damage progress? We agree that whilst in theory a syrinx could ascend into the brain stem, this would be very uncommon. We agree that a clinically significant syrinx is likely to be detected as a consequence of slight change in manual dexterity, allowing treatment before it progresses further. BG points out that treatment of a syrinx with minor clinical features such as a slight change in manual dexterity is not always successful, in which case the clinical features can become significant. 2.4 What might be the effect of any serious neurological deterioration on the Claimant? AT states that loss of manual dexterity is likely to slow AK down in aspects of self care, such as fastening buttons and laces, and may make the pushing of a manual wheelchair more difficult, but should not if detected soon enough impact on transfer skills and other aspects of manual handling. BG agrees except that he believes that there would be some increased need for help with transfers. 2.5 Are there any other consequences of a syrinx developing the court should be aware of? AT states that a syrinx can give rise to neurogenic pain, loss of arm, respiratory and swallowing function with a further significant impact on life expectancy. BG states that whilst he agrees that neurogenic pain and some loss of arm function is a definite possibility, any loss of respiratory capability would be small, and impaired swallowing only a very small possibility because this would require clinical loss at lower brain stem function. BG does agree that should any syrinx ascend into the cervical spinal cord and cause clinically significant loss of arm function then there would be a small loss of life expectation. He also agrees that impaired swallowing would further impair life expectation, but states that a brain stem syrinx giving rise to impaired swallowing is only a very remote possibility. BG states that other important functions that could be impaired are those that are at conus level. A lax anus could give rise to loss of anal tone and consequent impaired continence for faeces and flatus.”

[20]In the course of his oral evidence, which of course remained unchallenged and indeed was accepted, Mr Gardner clarified a number of points. He confirmed that the agreed incidence of 1% of syrinx leading to significant clinical features is calculated allowing for the benefits of treatment, including surgical intervention to stabilise the progression of the effects of a syrinx once detected, either by MRI or by the development of initial minor symptoms or signs. He said surgery will often be successful in arresting the progress of the effects of a syrinx. However, he emphasised that surgery, even properly conducted and on the basis of a good indication for intervention, brings risks of damage in a number of cases: perhaps 5% – 10% of patients. All of that is factored into the overall picture of a 1% chance of a clinically significant syrinx.

[21]Within the category, Mr Gardner emphasised there is a big spectrum of what a clinically significant syrinx might mean. The range is from a loss of sensation in the fingers, through loss of power, to the more extreme end of the spectrum involving loss of the swallow facility. Specifically, if the syrinx affected the nerve supply only at the level of T1 it would amount to the loss of fine control in the fingers only. If it involved T1 and farther up to C8 it would likely affect the Claimant’s grip. If it reached C7 it would likely affect his ability to extend his elbow to the point where it was lost. If the lesion extended further, and there was involvement of C6 nerve supply, then the Claimant would lose the ability to cock back his wrist and so forth. This spectrum of consequences would all be superimposed on the disabilities of the existing patient: in this case not merely hemiplegia but the effects of brachial injury, his weight and his age.

[22]If permanent significant sequelae did occur, it was most likely that they would involve the lower cervical myotomes. It would be a rare effect for a syrinx to develop so as to reach the brain stem or indeed the higher reaches of the spinal cord, affecting such things as ventilation and swallowing. Even if the lesion affected the lower cervical myotomes it would be a correct description to say that the Claimant had shifted from being a paraplegic to being properly regarded as a “low cervical incomplete tetraplegic”. However, in my judgment the change of description is merely a crude label attached to the changes already summarised by Mr Gardner. Within the spectrum of effects described, at the lower end the deterioration would have little or no consequences for function, merely meaning perhaps a tingling sensation or other sensation change. Of course at the upper end of the spectrum, the effects could be very considerable. Even speaking of the 1% of cases where there are clinically significant consequences of a syrinx, the prediction would certainly be that the population would be bunched at the lower end of the range.

[23]In cross-examination, Mr Gardner readily conceded that there were a number of uncertainties and potential complications which might well arise for this Claimant without reference to the development of syrinx. He fully accepted that time, the effect of ageing, the over-use of the shoulders and the effect of increased weight, might all bring significant alteration from the predicted functioning. He accepted there were a list of other complications which might well develop from the spinal cord injury, which was why a patient such as this needs to be kept under careful review.

[24]So far as the development of a syrinx is concerned, in Mr Gardner’s view a patient such as the Claimant should be reviewed by imaging every two years or so, and such a process would usually pick up the syrinx before it was significant. There would only be a small minority of patients who were unaware of some effects from the syrinx if it was present, once they were challenged. Mr Gardner agreed that while, as a generality, the larger the syrinx the higher the likelihood of clinical features as a consequence, this was not a rule. Sometimes, paradoxically, larger syrinxes can be symptom and sign free, and vice versa. He confirmed that the timescale of development of a syrinx was uncertain. Such cysts can develop suddenly or gradually. Probably the most frequent course is for episodic or stepwise development. The complication can develop many years after the index injury. Mr Gardner reiterated his view under questioning that there was the potential for a syrinx to affect functions dependent on the reflex further down the spine than T6 and in particular to bring about a flaccid anus. There was a spectrum of effects overall.

[25]In one important piece of evidence, Mr Gardner was asked to clarify what was in his view the likelihood of really serious syrinx related problems affecting the brain stem and aspiration. He said that represented about 0.1% likelihood. In other words, of the 1% of patients such as this Claimant who are likely to go onto develop clinically significant consequences from syringomyelia, about one in ten would be likely to develop really serious consequences so as to affect their breathing such that they would require some assistance with ventilation. The Law

[26]The power to order that awards of damages for personal injuries will be provisional is set out in Section 32A of the Senior Courts Act 1981. “32A – 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.

(2) Subject to subsection (4) below, as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person- (a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and (b)further damages at a future date if he develops the disease or suffers the deterioration.

(3) Any rules made by virtue of this section may include such incidental, supplementary and consequential provisions as the rule-making authority can consider necessary or expedient.

(4) Nothing in this section shall be construed- (c) as affecting the exercise of any power relating to costs, including any power to make rules of court relating to costs; or (d) as prejudicing any duty of the court under any enactment or rule of law to reduce or limit the total damages which would have been recoverable apart from any such duty. (a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and (b)further damages at a future date if he develops the disease or suffers the deterioration. (c) as affecting the exercise of any power relating to costs, including any power to make rules of court relating to costs; or (d) as prejudicing any duty of the court under any enactment or rule of law to reduce or limit the total damages which would have been recoverable apart from any such duty.

[27]Part 41.2 of the CPR 1998 provides: “Order for an award of provisional damages 41.2-(1) The court may make an order for an award of provisional damages if-(a) the particulars of claim include a claim for provisional damages; and

(b) the court is satisfied that SCA s.32A or CCA s.51 applies. (Rule 16.4(1)(d) sets out what must be included in the particulars of claim where the claimant is claiming provisional damages.) (2) An order for an award of provisional damages- (a) must specify the disease or type of deterioration in respect of which an application may be made at a future date; (b) must specify the period within which such an application may be made; and

(c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made. (3) The claimant may make more than one application to extend the period specified under paragraph (2)(b) or (2)(c). ” (a) the particulars of claim include a claim for provisional damages; and (b) the court is satisfied that SCA s.32A or CCA s.51 applies. (a) must specify the disease or type of deterioration in respect of which an application may be made at a future date; (b) must specify the period within which such an application may be made; and (c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.

[28]The power to order that all or part of an award of damages in respect of personal injury should take the form of periodical payments derives from S2(1) of the Damages Act 1996. The Act was amended in 2005 by the introduction of section 2B, permitting variation of periodical payments subject to the relevant rules. The rules are the Damages (Variation of Periodical Payments) Order 2005, of which regulation 2 reads:

“Power to make variable orders If there is proved or admitted to be a chance that at some definite or indefinite time in the future the Claimant will - “a) 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, or ” b) enjoy some significant improvement, in his physical or mental condition, where that condition had been adversely affected as a result of that act or omission, the court may, on the application of a party, with the agreement of all the parties or of its own initiative, provide in an order for periodical payments and it may be varied.”

[29]It will be seen that the basis for variation of periodical payments is in law identical for all essential purposes to the test under the amended Damages Act 1996. Hence I accept from Mr Turner QC that no change in underlying legal policy is properly to be derived from the introduction of the power to vary periodical payments.

[30]A reasonably extensive range of decisions on the exercise of these powers was placed before me. The great majority are at first instance, very many of which were actually approvals of settlement. On a number of occasions, the consideration of this question was buried amongst a myriad of other complex interlocking decisions for the judge in question, rather than being isolated for specific focus, as has been the case here. I do not consider that anything is to be gained by rehearsing all of these.

[31]In Willson v Ministry of Defence

[1991] 1 All ER 638

, Scott Baker J, as he then was, considered the exercise of this power with the help of knowledgeable counsel and such authorities as were then available. He was being asked to look at three events envisaged and to consider whether, if they did occur, they should be described as constituting serious deterioration. He said this at pages 599G - 600A:

“First of all the development of arthritis to the extent that surgery is required. Osteoarthritis is a progressive condition. It is very common in cases where damage is suffered to an articular surface. I am not satisfied that it is established that deterioration to the point of surgery being required falls within the definition of serious deterioration in the circumstances of this case. It seems to me to be simply an aspect of a progression of this particular disease. Secondly, development of arthritis to the extent that he changes employment. Again, it seems to me very much the same approach can be applied as with regard to the requirement of surgery and I do not think that deterioration triggering a change of employment can properly be described as serious within the meaning of the section. Thirdly, that the plaintiff suffers a further injury in the nature of further damage to the ankle or elsewhere.”

[32]Scott Baker J rejected the Claimant’s approach. I quote the decisive passages at pages 601H – 602F:

“The question then arises as to which cases are appropriate for a provisional damages award and which are not. I deal with this because, although I formed the view that there was no serious deterioration envisaged in this case, that was not a matter that I found entirely easy and indeed there are some matters that may more properly be dealt with under the heading of “discretion” rather than taking into account the circumstances of the case in looking at whether or not the section was complied with. The general rule in English law is that damages are assessed on a once-and-for-all basis. Section 32A of the Supreme Court Act 1981 creates a valuable statutory exception. In my judgment, the section envisages a clear and severable risk rather than a continuing deterioration, as is the typical osteoarthritic picture. In my judgment, many disabilities follow a developing pattern in which the precise results cannot be foreseen. Within a general band this or that may or may not occur. Such are not the cases for provisional damages. The courts have to do their best to make an award in the light of a broad medical prognosis. In my judgment, there should be some clear-cut event which, if it occurs, triggers an entitlement to further compensation. Argument was addressed to the question of whether or not the discretion should be exercised. No doubt the courts will work out over a period of time the various factors that it may be relevant to take into account in the exercise of such a discretion. In my judgment, the important factors in this case are, first, to look and see whether, in respect of any of the three events outlined by Mr. Langstaff, there can truly be said to be a clear-cut identifiable threshold. In my judgment, there cannot. I also take into account the degree of risk and the consequences of the risk. They do not seem to me to be such as to place this case into the category where there is a great demand that there ought to be only a provisional damages award at this stage. In a sense, this point leads into the third aspect that I regard as particularly relevant to the exercise of this discretion, and that is weighing up the possibilities of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the plaintiff’s right to return. It seems to me that the case falls within the general run of cases where there are uncertainties as far as the future is concerned. Nobody can look into a crystal ball and see precisely how the condition of the plaintiff’s ankle will develop, but I think that the uncertainties are such that they can all properly be taken into account in making a once-and-for-all assessment of damages today. My conclusion therefore is that this is not an appropriate case in which to exercise discretion in favour of a provisional damages order.”

[33]The approach of Scott Baker J was approved by the Court of Appeal in Curi v Colina, The Times 14 October 1998, a transcript of which was available to me. The court agreed with the conclusion that the chance concerned “must be more than fanciful.” As Scott Baker J had said “in my view, to qualify as a chance it must be measurable rather than fanciful.” See Curi v Colina at page 13.

[34]The Court of Appeal went on to consider the question of seriousness:

“The next question is whether the disease or the deterioration which may occur in the future can be described as serious….the disease or deterioration must be such that an award of damages which included a sum for the “chance” will be wholly inadequate to compensate the plaintiff for the position in which he would find himself once the chance had materialised.”

Pages 13 to 14.

[35]The court considered that causation should not be a bar to the exercise of the power:

“The fact that if the serious disease occurs or the serious deterioration materialises there may be an issue on causation should not prevent the court from exercising its power under Section 51, provided that it has been proved on the balance of probabilities that there is a measurable chance of the disease or deterioration materialising.”

Lord Justice Roch emphasised the need for clarity in the exercise of discretion:

“In approaching the issue whether the court should exercise its discretion a judge should bear in mind that the section is an exception to the basic rule that damages are assessed once and for all and the practical advantages of that rule it is probably a wise approach to an application that the court should exercise this power to be, as was Michael Davies J in Allott v Central Electricity Generating Boards [unreported]. Not very enthusiastic, save in the clearest case…”

Not very enthusiastic, save in the clearest case…”

[37]It is advisable to heed the words of Simon Brown J as he then was in Patterson v Ministry of Defence 29 July unreported, transcript p.13A/B:

“But generally speaking it appears to me desirable to limit the employment of this valuable statutory power to cases where the adverse prospect is reasonably clear cut and where there would be little room for later dispute whether or not the contemplated deterioration had actually occurred.”

[38]I was referred to the decision of Burton J in A and Others v National Blood Authority and Anr

[2001] 3 All ER 289

. At pages 376 to 378 that judge conferred his agreement to five bases or “triggers” which, if one or more were established by an individual Claimant, would permit that Claimant to make an additional claim for damages, on the basis that the settlement under the scheme contemplated by the court would be treated for that Claimant as being provisional. The specifics are not important save perhaps in relation to trigger 5 at page 378C:

“Trigger 5: Recurrence of, or onset of a fresh, serious psychiatric condition as a result, whether direct or indirect, of the Claimant’s Hepatitis C condition.”

[39]It is fair to observe that Burton J was considering an enormous settlement for a large number of claimants and necessarily therefore agreeing terms which had to be less specific, in relation to considerations which had to be less individual, than is normally the case. He did however emphasise that he felt it proper to approve such provisions in the settlement as complying with the language of the Act. At least in respect of “trigger 5” he was content with the clarity – as counsel described it the “clear-cuttedness” – of a category of injury as broadly defined as “a psychiatric condition” as long as it was “serious””.

[40]I was also referred to a transcript of the decision of Beatson J in Andrew Mitchell v Royal Liverpool and Broadgreen UH NHS Trust, 17July 2006. The issue in that case was whether, on an appeal from a District Judge, the Claimant should be permitted to plead provisional damages in respect of the risk of syringomyelia arising from personal injury. Some of the evidence as to the incidence of syringomyelia affecting that Claimant was a little different from the evidence before me. It may also be fairly said that, in deciding whether or not such a claim could properly be pleaded, it would be unlikely that any judge would readily exercise a discretion to prevent a Claimant merely pleading such a claim, or at least would do so in so active a fashion as might be correct at trial. Nevertheless, the judge approached his decision by considering Willson v MOD, and concluded that the District Judge was wrong to consider a 0.15% chance of developing syringomyelia as being fanciful. Beatson J considered that in the language of Willson:

“however slim those chances may be, I think that they are measurable within the meaning of this section.”

Beatson J went on to consider that in such a case if the Claimant was to be restricted to a lump sum it was in fact precisely the “smallness of the chance” which might mean that the “Claimant was significantly under-compensated if the risk transpires”: see paragraph 12.

[41]In Davies v Bradshaw and Anr

[2008] EWHC 740 (QB)

, Wilkie J declined to make a provisional award so as to cater for the possible development of syringomyelia. However the relevant passage in an otherwise full judgment is short. The decision was appealed on this point and the appeal was compromised. Hence, it is hard to draw too much from the approach of the judge in that case.

Conclusions

[42]I approach this case on the basis that the three stage test formulated by Scott Baker J in Willson v MOD and approved by the Court of Appeal in Curi v Colina is the best approach.

[43]In my judgment, it is impossible to say that the prospect of developing syringomyelia in Mr Kotula’s case is fanciful. Not only is the chance measurable, but it has been measured and indeed agreed. Thus far, the Defendants accept that the relevant clarity exists. There either will or will not be a syrinx.

[44]Moreover, there is an agreement that about 1% of patients in the position of this Claimant will develop a clinically significant syringomyelia.

[45]There is no evidence before me that it will be difficult to determine what are the consequences of a syrinx, if it develops. Indeed, the tenor of all the evidence coming from Mr Gardner was that it would be evident in a given patient, once the syrinx was diagnosed, to establish the consequences flowing from it. I do not understand that proposition to have been challenged.

[46]The second question is whether the “disease or deterioration” – and it seems to me potentially apt to describe a syrinx in either way – will be “serious”. The evidence was perfectly clear that even for many of those 1% of patients who have “clinically significant” consequences of developing a cyst, the consequences will not be serious. However equally, the unchallenged evidence from Mr Gardner was to the effect that perhaps one in a thousand such patients as Mr Kotula will have really serious effects from developing a syrinx. Between that one in a thousand and the majority whose consequences are not serious there will be a spectrum of effects. Trying to define where on such a spectrum is the boundary of “seriousness” seems to me neither helpful nor necessary. A measurable proportion of those who develop a syrinx will have undeniably serious consequences. Hence it appears to me that on any view the first two tests or stages are satisfied.

[47]In the exercise of discretion, I bear in mind all of the dicta in Willson and elsewhere in favour of the need for clarity. We are not here dealing with the development of osteoarthritis, or even of a psychiatric condition such as in A. Those are very general conditions which are Protean in their form and effects. It will often be difficult to establish the cause of osteoarthritis particularly later in life. It may often be difficult to establish the origins of a psychiatric condition. It seems to me to be relatively easy to establish what has flowed from the development of a syrinx in a given patient, and having identified the effects, to decide whether or not they were serious. Imaging will provide a picture of the location and size of the cyst or cysts. It will readily be apparent which part or parts of the nerve supply will be affected. By definition, in a case as such as this, there will be a fully developed picture of the neurological condition of the patient before the syrinx develops. His or her condition will have been fully analysed and reported. Of course, the impact of the development of syringomyelia may often be compounded by other disorders or indeed by progressive deterioration which is not the result of a syrinx. Sometimes the effects on functioning or the need for care will indeed be difficult to tease out, and it is likely in such cases that the wise Claimant will not risk costs in making a claim. If a Claimant does seek further damages or variations on an indistinct factual ground, he may rapidly be placed on a significant costs risk by the astute use of CPR Part 36. It is relevant to bear in mind in the context of syringomyelia that such claims will be extremely rare. By contrast to potential claims arising from osteoarthritis or psychiatric condition, one truly is contemplating a trickle not a flood.

[48]I bear fully in mind the desirability of finality of awards. Finality brings great benefit not merely to insurers and to the court system, but also to Claimants. However in this context that must be set against the potentially enormous inadequacy of an award, in that very small but measurable group of patients who go on to develop really significant incremental spinal compromise as a consequence of syringomyelia. It does seem to me that this is precisely the kind of rare but highly damaging contingency which Parliament must be taken to have in mind, when permitting damages awards to be provisional, and permitting the variation of periodical payments.

[49]For all these reasons, this Claimant will be permitted to treat his lump sum award as being provisional, and will have the right to seek to vary his otherwise agreed periodical payments, if in due course he comes to develop serious consequences as a result of acquired syringomyelia.