Woodward v Leeds Teaching Hospitals NHS Trust

In assessing personal injury damages, the court may award the cost of private treatment despite equivalent NHS provision where the claimant would probably pay privately if able to do so. Provisional damages are appropriate where there is a real, more than fanciful risk of a distinct and significant medical deterioration, even if the risk cannot be quantified. Where conventional earnings calculations are impossible because of substantial imponderables, the court may make a broad assessment if the evidence supports a reasonable projection of likely financial disadvantage.

The claimant suffered acromegalic gigantism caused by delayed diagnosis and treatment of a pituitary tumour. The defendant admitted negligence, causation and liability for damages. The trial concerned the quantification of past and future losses, including medical treatment, care, equipment, travel, clothing, loss of earning capacity and general damages.

Central issues included whether damages should cover privately funded endocrine treatment currently available through the NHS, whether provisional damages should be awarded for the risk of tumour re-growth, and whether future loss of earnings could be calculated conventionally.

1. Private treatment. Under section 2(4) of the Law Reform (Personal Injuries) Act 1948, NHS facilities were to be disregarded when assessing the reasonableness of medical expenses. The relevant question was whether the claimant would probably obtain private treatment if able to pay for it. Her anxiety about tumour recurrence, the importance of continuity of specialist care, uncertain NHS funding and the availability of equivalent private treatment established that she would probably pay privately for endocrine supervision, octreotide therapy, blood tests and MRI monitoring. The court awarded £302,914 for that treatment.
2. Provisional damages. The guidance in Kotula v EDF Networks (EPN) PLC and others [2011] EWHC 1546 (QB), including the criteria identified in Willson v Ministry of Defence [1991] 1 All ER 638, was applied. The risk had to concern a clear and severable significant medical problem and had to be real rather than fanciful. Applying Curi v Colina [1998] Court of Appeal (unreported), the risk need not be measurable. The residual tumour presented a real risk of re-growth with potentially catastrophic consequences. The award was therefore provisional, with permission to seek further damages if enlargement or spread caused a significant increase in symptoms or required further treatment.
3. Loss of earning capacity. A conventional multiplicand-and-multiplier calculation was impossible because the claimant had not entered her chosen career and the evidence contained too many imponderables. Following the broad approach illustrated by Blamire v South Cumbria Health Authority, and distinguishing Van Wees v Z. Karkour, A. Walsh [2007] EWHC 165 (QB), the court made an informed broad assessment based on the medical evidence and limited earnings data. It awarded £26,288 under this head.
4. The total award, including interest, was £1,228,242, awarded as provisional damages.