Chewings v Williams & Anor

Section 32A requires a single assessment: whether, on the balance of probabilities, there is a measurable rather than fanciful chance of serious future deterioration caused by the relevant act or omission. An applicant need not first prove, on the balance of probabilities, that an intermediate event will occur. The likelihood of that event remains relevant when assessing the overall chance of deterioration. Where the statutory test is satisfied, the court retains a discretion whether to make provisional rather than final damages, having regard to the prospect of further serious injury and the interests of settlement.

The claimant suffered serious lower-leg injuries in a road traffic accident caused by the first defendant. The parties agreed damages of £160,000, leaving for determination whether those damages should be provisional under section 51 of the County Courts Act 1984, with a five-year reservation for further damages if below-knee amputation occurred.

The proposed amputation could follow fusion surgery undertaken because of deterioration and increasing ankle pain. The issues were whether the claimant first had to prove that fusion surgery was more likely than not, whether the risk of amputation was more than fanciful, and whether provisional damages should be ordered and for what period.

1. Statutory test. The application was governed by the single test in section 32A of the Supreme Court Act 1981, applied through section 51 of the County Courts Act 1984. The claimant had to establish, on the balance of probabilities, that there was a chance of serious future deterioration resulting from the accident.
2. No preliminary hurdle. The claimant did not have to prove, on the balance of probabilities, that he would undergo fusion surgery. Imposing such a preliminary requirement would create different standards of proof for component parts of the overall chance. The likelihood of fusion surgery was nevertheless relevant to assessing the overall risk of amputation.
3. Meaning of chance. Following the approach in Wilson v Ministry of Defence [1991] 1 All ER 638, a qualifying chance had to be measurable rather than fanciful. The evidence showed a real chance of fusion surgery because of worsening pain and ankle deterioration. If surgery occurred, the claimant’s diabetes and obesity created a significant risk of serious infection and other complications, and the resulting risk of amputation was small but not negligible. The court assessed the overall chance at about 2 per cent.
4. Discretion and order. The case was an appropriate one for provisional damages because there was a real chance of further extremely serious physical damage. The agreed £160,000 was therefore ordered to be provisional, but for three years from the date of the order rather than the five years sought.

The proceedings had been issued in the County Court. The parties agreed the measure of damages, leaving the High Court application on the provisional-damages issue.