Kotula v EDF Energy Networks (EPN) Plc & Ors

Provisional damages and variation of periodical payments are appropriate where there is a measurable, non-fanciful chance of a serious and clearly identifiable future deterioration. The court should then exercise its discretion, balancing the benefits of finality against the risk that a once-and-for-all award would substantially under-compensate the claimant. Syringomyelia may satisfy this test where its occurrence and consequences can be identified by medical imaging and clinical assessment, even though only a small proportion of patients will suffer serious effects. The remedy remains exceptional and should be reserved for clear, rare contingencies rather than ordinary progressive deterioration.

The claimant, who had sustained complete T6 paraplegia and other injuries in a road accident, settled liability and damages with the defendants by a Tomlin Order. The settlement provided for a lump sum and periodical payments. The parties agreed that the remaining issue was whether the award should be provisional, and whether the periodical payments should be variable, if the claimant later developed serious consequences from post-traumatic syringomyelia.

The medical evidence placed the overall risk of syringomyelia at approximately 10–15 per cent, with an agreed risk of about 1 per cent of clinically significant consequences. The central issue was whether that risk satisfied the statutory test and justified exercising the discretion to permit further damages and variation.

The court permitted the claimant to treat the lump sum award as provisional and gave him the right to seek variation of the agreed periodical payments if he developed serious consequences from acquired syringomyelia.

1. Statutory framework. Section 32A of the Senior Courts Act 1981 permits provisional damages where there is a proved or admitted chance that the claimant will develop a serious disease or suffer serious deterioration. The materially identical statutory basis for varying periodical payments meant that no different legal policy applied to the two remedies.
2. Three-stage approach. The approach in Willson v Ministry of Defence [1991] 1 All ER 638, approved in Curi v Colina The Times 14 October 1998, was adopted. The chance must be measurable rather than fanciful. The future disease or deterioration must be serious. The court must then exercise its discretion, having regard to clarity, the degree and consequences of the risk, finality, and whether justice is better achieved by reserving a right to return.
3. The first stage was satisfied because the risk of syringomyelia was established and measured. The consequences of a syrinx could generally be identified from imaging and the claimant’s neurological condition. The second stage was also satisfied. Although most consequences would not be serious, a measurable proportion of cases could produce undeniably serious effects, including major additional spinal compromise.
4. The discretion favoured a provisional award. Syringomyelia was materially different from ordinary osteoarthritis or a general psychiatric condition because its location, size and neurological consequences could usually be identified with sufficient clarity. The possibility that other deterioration might complicate assessment did not defeat the application. The risk was rare but potentially highly damaging, and the possible inadequacy of a final award outweighed the ordinary benefits of finality.
5. A and Others v National Blood Authority [2001] 3 All ER 289 was distinguishable because it concerned a large settlement involving broadly defined categories. The decisions concerning syringomyelia were considered, but the court applied the Willson and Curi approach to the evidence before it.

not stated in the judgment.