Daisy Lynch v The Princess Alexandra Hospital NHS Trust

In assessing damages for clinical negligence, the court must compensate reasonable needs arising from the injury. Proportionality has a limited role: the court asks whether a substantially similar result could be achieved by a less expensive means. Low-level, intermittent fatigue or discomfort will rarely justify substantial expenditure, particularly where the proposed measure is clinically counter-therapeutic.

Provisional damages require a measurable chance of serious deterioration, a serious consequence, and a clear, severable triggering event. A broad collection of possible complications, whose consequences cannot readily be separated from ordinary deterioration, does not satisfy that test. A low-probability but grave and clearly identifiable Girdlestone procedure did satisfy it.

The Defendant admitted clinical negligence in failing to diagnose and treat the Claimant’s developmental dysplasia of the left hip. Liability had been resolved and the hearing concerned assessment of damages.

The Claimant had undergone extensive childhood and adult surgery, including a total hip replacement, and faced three anticipated revision operations. The issues included provisional damages, prognosis, future care, accommodation, psychiatric injury, travel, earnings and pension loss. The central questions were the appropriate compensatory approach and whether the evidence established a reasonable need for the claimed future measures.

1. Outcome. Judgment was entered for the Claimant for £811,247.11, including £110,000 for pain, suffering and loss of amenity, future losses and agreed past losses. Provisional damages were awarded only for the risk of a future Girdlestone procedure.
2. Provisional damages. Applying the three questions in [1991] ICR 595, approved in Curi v Colina, the Claimant had to establish on the balance of probabilities a measurable chance of serious deterioration. A chance need not be probable, but must be more than fanciful. The proposed complications before age 47 and around revision surgery were too compendious. Their consequences could not readily be distinguished from the expected progressive reduction in function, so no clear and severable triggering event had been shown. By contrast, a Girdlestone procedure was a clear-cut event with profound and readily ascertainable consequences. A once-and-for-all award would substantially undercompensate the Claimant if it occurred.
3. Future losses. Reasonable need was assessed in all the circumstances. Proportionality was limited to asking whether the same or substantially similar result could be achieved by a less expensive means. The court preferred the more optimistic orthopaedic prognosis. Stair use and activity were clinically beneficial, and single-level accommodation, routine domestic assistance before age 67, a personal trainer and private leisure-centre membership were generally not reasonably required. Modest allowances were made for adaptations, physiotherapy, care around revisions, case management, luggage assistance, extra-legroom seats, pain-management consultations, podiatry and other agreed needs.
4. Psychiatric injury. The Claimant did not establish PTSD or complex PTSD under ICD-11 because re-experiencing, deliberate avoidance and heightened current threat were not proved. She had recurrent depressive disorder, a prior adjustment disorder and iatrogenic codeine dependence. Her psychological injury was assessed as moderate and was considered together with the orthopaedic injury when fixing general damages.
5. The order provided for further damages if the Claimant underwent a causally-related Girdlestone procedure during her lifetime, subject to application within three years.

First-instance assessment of damages following admitted clinical negligence. The judgment states that judgment on liability had been entered on 20 February 2023, with damages to be assessed.