Richard Dee v Welsh Ambulance Services NHS Trust & Ors

On an interim-payment application, the claimant must show, to a high degree of probability, that a trial would result in judgment for a substantial sum against the defendant or at least one of several defendants. The court may make provisional factual findings where the issues are not too complex, but the application must not become a mini-trial. Uncontradicted or materially incomplete defence evidence may justify accepting the claimant’s evidence. A claimant may succeed on distinct injuries even where causation of other losses remains unresolved. The court should make a conservative assessment of recoverable heads of loss and apply a global discount before ordering payment.

The claimant, who suffered catastrophic spinal injury and severe pressure sores after a fall, brought negligence claims against an ambulance service and two health boards. Liability was disputed apart from limited admissions. Proceedings remained at an early stage and expert evidence had not been exchanged fully.

The claimant sought an interim payment, relying principally on alleged negligent failure to recognise and manage spinal injury, hypotension and pressure-ulcer risks. The central questions were whether the material showed, to the required standard, causative deterioration in upper-limb function and causation of the pressure sore, and whether the likely damages were substantial.

1. The application was granted under CPR 25.7(1)(e). The court was satisfied that the claimant would obtain judgment for a substantial sum against at least one defendant, although it could not determine which defendant should bear the payment.
2. The applicable interim-payment test required the court to adopt the hypothetical position of a trial judge and determine, on the material available, whether judgment for a substantial amount would probably be obtained. The claimant bore the evidential burden and had to satisfy the balance of probabilities to a high degree. The exercise did not require a mini-trial, but provisional findings of fact were permissible where the issues were sufficiently manageable.
3. The court was not satisfied that the claimant had established, for interim-payment purposes, that the original lower-limb injury would have materially improved with proper treatment. It was also not satisfied that the evidence established that bladder and bowel damage was avoidable. The failure to immobilise was not shown sufficiently to have caused or materially contributed to injury.
4. By contrast, the claimant’s evidence established, to the required standard, that prolonged unmanaged hypotension caused secondary hypoxic-ischaemic injury and deterioration into the upper limbs. The defendants’ expert evidence did not address that issue adequately and was incomplete and non-compliant with CPR Part 35.
5. The court also found that the defendants’ omissions caused or materially contributed to the development and deterioration of the sacral pressure sore. The court’s factual finding that the claimant had lain on the road for no more than about 40 minutes materially affected that assessment.
6. Applying the two-stage methodology in Eeles v Cobham [2009] EWCA Civ 24, the court made conservative estimates of the recoverable losses, then applied a 10% global discount. An interim payment of £109,006.96 was ordered.