TLQ/09/0840
Neutral Citation Number: [2009] EWHC 2490 (QB) 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Friday, 21st August, 2009

BEFORE:

MRS JUSTICE SLADE
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BETWEEN:

LEONARD HOWARD CHEWINGS

Claimant
-v-

(1)	JOSEPHY TOBY WILLIAMS
(2) ABERTAWE BRO MORGANNWG UNIVERSITY NHS TRUST
Defendants

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MR COLEMAN (instructed by Henmans) appeared on behalf of the Claimant.
MISS PERRY QC (instructed by Just Law) appeared on behalf of the Defendants.

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J U D G M E N T
J U D G M E N T

1.	MRS JUSTICE SLADE:  This is an application by Leonard Chewings for an order for provisional damages pursuant to the County Courts Act 1984 s.51.  This provision is in the same terms as the Supreme Court Act 1981 s.32A.  Mr Chewing sustained serious injuries to his right lower leg in a road traffic accident on 29th August 2004. The accident was caused by the negligence of the First Defendant but Mr Chewings’ case has been that his persisting symptoms and disabilities have been greatly compounded by allegedly negligent surgical treatment he received following his admission to Bridgend Hospital after the accident for which the Second Defendant is responsible.

2.	Proceedings were issued in the County Court. The parties reached agreement on 6th August 2009 as to the measure of damages to be recovered by Mr Chewings in consequence of the accident. Clause 3 of the Agreement provided:
“The sole issue which the Judge is to be asked to determine is whether an order should be made in the Claimant’s favour under section 51 of the County Courts Act 1984 whereby the agreed sum of £160,000 is to be paid as provisional damages, reserving the right for the Claimant to claim further damages within the further period of five years commencing 18th August 2009 should he suffer a below knee amputation of his right leg as a result of the negligence of the Defendants or either of them.”

3.	Section 32A of the Supreme Court Act 1981 provides as follows:
“Orders for provisional damages for personal injuries.

(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.”

4.	Anthony Coleman for the claimant and Jacqueline Perry QC for the defendants are agreed that Mr Chewings suffered an extremely serious, rare and complex injury to his right ankle in the car accident. The serious deterioration contemplated by the application is below knee amputation. The way in which this could occur is if Mr Chewings undertook fusion surgery. 

5.	Two issues arise for determination on this application: (1) whether the claimant has established on the balance of probabilities that there is a chance that at some definite or indefinite time in the future Mr Chewings will, as a result of the accident, suffer a below knee amputation of his right leg; and (2) whether in the exercise of the court’s discretion the agreed damages of £160,000 should be provisional or final.

6.	Mr Chewings made four statements dated 10th October 2007, 17th March and 5th November 2008, and 6th August 2009.  At the hearing before me he was cross-examined. The claimant also relied upon the expert evidence of a consultant orthopaedic surgeon, Mr Gillam. The defendants relied on the expert opinion of another consultant orthopaedic surgeon, Mr Ackroyd. Mr Gillam is a consultant orthopaedic surgeon at Horton Hospital, Oxford, Radcliffe NHS Trust. He has a special interest in upper limb and ankle surgery and trauma reconstruction, particularly ankle and wrist fractures. Mr Ackroyd has many years experience as a consultant orthopaedic surgeon. He has more recently specialised in lower limb arthroplasty surgery, especially surgery of the knee.  Mr Gillam produced three reports dated 17th July 2006, 18th July 2007 and 17th November 2008 and wrote four letters dated 28th September 2006, 2nd October 2007, 30th June 2009 and 19th July 2009. Mr Ackroyd produced a report dated 10th December 2008 and a letter dated 29th July 2009. The consultants produced a joint report dated 22nd April 2009. Both experts gave oral evidence.  

7.	In the course of the hearing it became clear that the experts were in agreement that the event which could lead to below-knee amputation was a fusion operation. For the sake of convenience and not in any way intending to minimise its complexities I will refer to the procedure as “fusion surgery”. Fusion surgery would be undertaken to alleviate the poor condition of the right ankle initially caused by the accident. 

8.	The parties were not in agreement on the following questions which are relevant to the two outstanding issues to be decided on this application: 
(1) whether, in establishing that there was a chance that he would suffer a below knee amputation, Mr Chewings had first to prove on a balance of probabilities that he would undergo the operation which could lead to the need for an amputation; 
(2) whether the risk of an amputation was more than fanciful; 
(3) if Mr Chewings established that there was a more than fanciful chance that he would suffer an amputation, whether discretion should be exercised to make an order that the agreed sum of £160,000 be paid as provisional damages; 
(4) if a provisional damages order is made, the period for which it should apply.

Is Mr Chewings required to establish that, on a balance of probabilities, he will undergo a fusion operation?  

9.	Jacqueline Perry QC for the defendants submitted that, in order to establish that there is a chance that he will suffer an amputation and so satisfy the requirements for the making of an order for provisional damages, Mr Chewings has first to overcome a hurdle of proving, on a balance of probabilities, that he will undergo fusion surgery.  If he fails to do so, his application must be dismissed.  Miss Perry frankly acknowledged that her contention was not helped by the wording of Section 32A, nor was she aware of any authority in support of her proposition.  She referred to the judgment of Scott Baker J (as he then was) in Wilson v Ministry of Defence [1991] 1 All ER 638. In that case Scott Baker J considered the case of a man who had injured his ankle at work. An application for provisional damages was made on the basis that he may develop arthritis as a result of the injury to the extent that surgery was required or that he may fall as a result of the ankle giving way. As for the latter possibility, Scott Baker J observed at page 643C: 
“There is, in my view, a chance that he may suffer such an injury in the future but it seems to me to be entirely speculative as to the nature and gravity of the injury that he may suffer.”

10.	As with Section 32A, in the event Miss Perry did not gain much support from Wilson for her argument that an applicant for provisional damages has first to establish on a balance of probabilities that the event which may give rise to the serious deterioration in his physical state will occur before it becomes relevant to consider to a lesser standard of proof the chance of serious deterioration. Miss Perry submitted that, on the facts, Mr Chewings had not established on the balance of probabilities that he will undergo the fusion surgery which may lead to a deterioration in his physical condition. She referred to a number of factors supporting this contention. These will be set out later in this judgment. In the circumstances, Miss Perry said that it “beggars belief” that Mr Chewings would have fusion surgery.  Accordingly, in her submission he does not progress beyond the first base of proving, on the balance of probabilities, that he would have fusion surgery. 

11.	Mr Coleman challenged Miss Perry’s contention that an applicant for a provisional damages order had first to establish on the balance of probabilities that he will suffer the event which could lead to substantial deterioration in his physical condition before an assessment is to be made of the chance that his physical condition will seriously deteriorate.  He submitted that Section 32A is straightforward.  It is for the claimant to prove on a balance of probabilities that there is a chance that at some time in the future the injured person will as a result of the act or omission which gave rise to the cause of action suffer some serious deterioration in his physical condition. 

12.	In my judgment, Mr Coleman’s submission is correct.  Section 32A imposes a single test. It is for the applicant for a provisional award of damages to establish on a balance of probabilities that there is a chance that at some time in the future he will suffer some serious deterioration in his physical condition. The chance is established by less than a balance of probabilities standard. If that standard were satisfied, the event would not be a chance but a certainty not warranting provisional damages but the award of an ascertained sum. There is no warrant for imposing a preliminary hurdle to overcome to a  balance of probabilities standard of proof that an event which may lead to deterioration in the applicant’s physical condition will occur.

13.	Far from supporting Miss Perry’s argument, the judgment in Wilson illustrates that Section 32A does not impose different standards of proof to each of the component parts making up a chance that serious deterioration in the applicant’s physical condition will occur. Of the chance that Mr Wilson would suffer serious injury because he was more liable to severe injury of the inversion type because of the initial accident Scott Baker J held at page 643C-D:
“There is, in my view, a chance that he may suffer such an injury in the future but it seems to me to be entirely speculative as to the nature and gravity of any injury he may suffer.  So there are, in a sense, two possibilities: (i) the possibility that he falls over and (ii) the possibility that, if he does, he suffers a further injury.

I am not satisfied that it is established that there is a chance of serious deterioration because it seems to me that there is no real evidence as to what may happen if he does fall over.”

14.	The possible fall in Wilson is comparable to the fusion operation in this case. The test applied by Scott Baker J to whether the fall would occur is whether it was a possibility. The claim for provisional damages was dismissed in that case not because Mr Wilson had failed to establish on a balance of probabilities that he would fall, but because the nature and gravity of any injury which may be caused by a fall was entirely speculative. Accordingly, the appropriate test to be applied in deciding whether Section 32A is satisfied is whether the claimant has established on a balance of probabilities that as a result of the act or omission which gave rise to the cause of action there is a chance of serious deterioration in his physical condition in the future.

15.	The facts relied upon by Miss Perry to seek to establish that on a balance of probabilities Mr Chewings would not have a fusion operation are, however, relevant to one of the steps in the assessment of the chance that an amputation will occur. 

Is the risk of amputation more than fanciful?  
16.	The parties are agreed that the approach to determining whether there is a chance of a serious deterioration in the claimant’s physical condition within the meaning of Section 32A is that explained by Scott Baker J (as he then was) in Wilson at page 642A-B: 
“A chance, it will be appreciated, is not defined in Section 32A. This has been considered in a number of previous cases. It seems to me that the legislature has used a wide word here and used it deliberately. I think Mr Nixon is right when he points out that it can cover a wide range between, on the one hand, something that is de minimis and, on the other hand, something that is a probability. In my view, to qualify as a chance it must be measurable rather than fanciful.”

17.	Both counsel also referred to Kemp & Kemp chapter 25. At paragraph 25-007 the authors cite Roch LJ’s approval in Curi v Colina (July 29th 1998, unreported) of Scott Baker J’s approach which he recommended to judges considering an application for a provisional award of damages. The authors of Kemp & Kemp in paragraph 25-008 suggest the following in relation to assessing whether the risks of serious deterioration warrant an award of provisional damages:
“(3) If the risk is less than probable but more than small this is the most difficult area.
(4) If the risk is pretty small, say 2-20 per cent, then a provisional award is most probably appropriate.
(5) If the risk is de minimis then no award should be made.”

18.	Both experts sought to ascribe a percentage to the chance of a below knee amputation in the case of Mr Chewings. While such evidence is of assistance, as counsel agreed at the outset of the hearing, the question for me is whether the chance of such an amputation occurring is measurable rather than fanciful. 

19.	The experts are agreed on a number of matters relating to the chance of a below knee amputation occurring. For that chance to arise a number of events would have to take place. The experts differ in their assessment of the likelihood of those events occurring.  The realistic pathway to an amputation is Mr Chewings undergoing a fusion operation. Increasing and intolerable pain could lead to the decision to have such an operation. It was agreed that there are a number of features affecting Mr Chewings’ physical condition which add considerably to the risks of such surgery. He is obese.  He has diabetes and has had a renal transplant. These features would increase the risks of an anaesthetic and could render surgery a threat not just to his limb but to his life.  Mr Chewings may suffer a thrombosis which, if he were unlucky, could lead to a pulmonary embolism.  In addition, it was agreed that a fusion operation may not succeed. The bones may not heal and severe infection could result.  These factors and uncontrolled pain, even after fusion surgery, could lead to a decision to amputate Mr Chewings’ leg below the knee. 

20.	The experts are not in agreement as to the likelihood of such events occurring.  A joint medical report was prepared on 22nd April 2009 by the two experts, Mr Gillam and Mr Ackroyd. Amongst the areas of agreement was that:
“14. Further surgical treatment, in all probability, will be required in the future. This will probably be an ankle or pan-talar fusion.” 

Mr Gillam in his letter of 20th June 2009 wrote: 
“I think that it is probable that Mr Chewings will require an ankle fusion in the future… 

I still consider that as a consequence of his significant co-morbidity there is a risk of below knee amputation. I have not changed my view that this risk is of the order of 25%.”

21.	Pain would be the reason for fusion surgery.  In Mr Gillam’s view Mr Chewings’ pain would inevitably increase and his ankle deteriorate. 

22.	In evidence Mr Gillam said that he still regularly operates on ankle fractures. He prefers to replace ankles than to undertake fusion surgery. He has carried out ten fusion operations in the last five years.  Mr Gillam considered that it would be safer to carry out one fusion operation on Mr Chewings rather than three. The surgical risk may be marginally greater, but this would be preferable to the risks of three operations. Fusion is difficult surgery. There is a risk of failure. The surgical wound may not heal and there is a risk of infection. In Mr Chewings’ case these risks are increased because of his obesity and diabetes. Obesity may lead to the need for greater incisions and diabetes affects wound healing and liability to infection. There were real risks of post-operative complications.  Of those post-operative complications which could arise, in Mr Gillam’s opinion deep wound infection, failure of wound healing or uncontrollable pain could lead to the need for amputation.  

23.	Mr Gillam said that he would warn of the risk of amputation when obtaining a patient’s consent to fusion surgery.  He explained that he did not make reference to amputation in earlier reports in this case as in 2006 in the first instance a different type of operation (reconstruction) was contemplated.  Mr Gillam commented that he did not think that anyone dealing with fusion surgery would say that the risk of amputation was negligible. He had assessed the risk of amputation at 25%, but agreed that it is very difficult to put a figure to the risk.  He also pointed out that the way in which risk is presented to someone consenting to an operation is perhaps somewhat different from an objective assessment such as that which is to be given in this case.  Mr Ackroyd agreed with Mr Gillam on this observation. 

24.	Mr Chewings’ orthopaedic surgeon, Mr Sharpe, performed an arthroscopy on his ankle in 2007.  He wrote to Mr Chewings’ GP on 15th June 2007: 
“He has degenerative changes in the ankle and it is inevitable that he will need an ankle fusion at some time in the future, but I cannot tell if it will be six months or six decades from now.”  

Mr Sharpe then discharged Mr Chewings from his care. A computer printout shows that on 13th August 2008 Mr Chewings told his GP that he wished to be reviewed by Mr Sharpe. The referral letter written by the GP on 13th August 2008 informed Mr Sharpe:
“He would now like to be considered for a fusion of his right ankle joint to help alleviate some of his pain.”

	No appointment was then made or received.  On 20th July 2009 Mr Chewings told his GP that he had ongoing symptoms from his ankle and wished to consider surgical treatment.  There was note “? fusion” on the records.  He is due to see Mr Sharpe in September.

25.	For the defendants, Mr Akcroyd had agreed in the joint experts’ report of 22nd April 2009 that further surgical treatment in all probability would be required in the future. This would probably be ankle or pantalar fusion.  In his letter of 29th July 2009 Mr Ackroyd expressed the opinion that Mr Chewings might require further surgery and that this was likely to be pantalar fusion. There was a 20% to 30% chance that Mr Chewings would require such surgery. Mr Ackroyd was asked by Mr Coleman what had brought about the change in his estimate of the likelihood of Mr Chewings undertaking fusion surgery.  Mr Ackroyd had not examined Mr Chewings since his report of December 2008. He expressed the view that Mr Chewings had seemed to have come to a “steady state”. He commented that Mr Chewings’ own surgeon had discharged him. Mr Ackroyd had not been aware that Mr Chewings had asked to be referred back to his treating consultant Mr Sharpe for consideration of fusion surgery. He said that he pulled back from his opinion in the joint report, commenting: “One is entitled to change one’s opinion.”  

26.	From his oral evidence it was apparent that an important factor in Mr Ackroyd’s assessment of whether fusion surgery would be undertaken was the risk attached to it. These were greater than usual in Mr Chewings’ case because of what is described as “co-morbidity”. There were other less invasive ways of dealing with severe pain rather than the drastic measure of fusion surgery. In his letter of 29th July 2009 Mr Ackroyd agreed that fusion surgery carried with it considerable risks of developing complications, particularly infection. He assessed the risk of this occurring at 10% to 20%. He would warn a person contemplating fusion surgery of the risk of amputation. Mr Ackroyd agreed with Mr Gillam’s views on the causes of the risk of amputation.  He considered the risk of amputation relatively small and the risks of complications somewhat higher. Mr Ackroyd said that he now specialises in the knee joint. He had carried out ankle fusion about ten years ago but did not think that he had carried out talonavicular fusion. 

27.	Mr Coleman, for the applicant, relied upon evidence from Mr Chewings, his medical records and the evidence of Mr Gillam to show that there is a chance that he will have a fusion operation. If he does, there is a serious risk of complications developing.  Of those complications, serious infection, failure of wound healing or extreme pain could lead to the need for an amputation. Whatever percentage chance of an amputation is correct, the risk of it occurring is not fanciful; it is real.  

28.	Miss Perry submitted that, having regard to the risk factors associated with Mr Chewings undertaking fusion surgery, it is unlikely that a surgeon would advise it to be undertaken. Even if it were advised, Miss Perry suggested that, because of Mr Chewings’ fear of losing his lower leg, he would be unlikely to choose to undergo such a procedure. The risks to him of such an operation were too great. Those risks were not just to his limb but to his survival.  She also submitted that there was nothing to indicate that he has to have the fusion operation. It would be elective surgery.  If Mr Chewings were to have a fusion operation, Miss Perry submitted that, whilst there may be an appreciable risk of complications developing, amputation was an extremely remote possibility. She invited me to prefer the evidence of the defendants’ expert witness Mr Ackroyd to that of Mr Gillam. She contended that Mr Gillam’s assessment of the chance of amputation as being 25% was incredible and she questioned why he had not mentioned the risk of amputation in his earlier reports.  

Conclusion
29.	I reach the following conclusions on the evidence. 

30.	The most likely trigger for Mr Chewings undergoing a fusion operation is increasingly unbearable pain. In my judgment, there is a real chance that Mr Chewings’ ankle will deteriorate and that, if it does so, the severe pain he is currently experiencing will increase.  The pain is currently bad enough to lead him to ask to see his surgeon to discuss a fusion operation.  He naturally is concerned at the thought of amputation, but his seeking Mr Sharpe’s view on an operation shows that he is contemplating such a step.  Both experts have been at pains to point out that the decision whether to undertake fusion surgery will be a difficult one; difficult no doubt both for the surgeon to recommend and for Mr Chewings to accept. This decision will depend on a number of factors, which may change over time.  It will no doubt depend on the degree of pain and suffering for Mr Chewings and his general health. The risks and benefits will have to be assessed.  However, in my judgment there is a real and not a fanciful chance that Mr Chewings will undertake fusion surgery at some time in the future. If Mr Chewings has fusion surgery, there is a significant risk that he will develop complications. Bearing in mind his diabetes and obesity, if complications arise he is at risk of serious infection developing.

31.	In correspondence Mr Gillam put the chance of amputation as high as 25%. Mr Ackroyd put it at less than 1%.  It appeared to me that each expert was making the calculation in a different way. Mr Gillam was taking a percentage chance of an amputation if Mr Chewings developed a post-operative infection.  Mr Ackroyd, in my view, built into his calculation the percentage chance of each step being reached into the chance of amputation occurring.  Mr Gillam rightly said in his evidence that it is difficult to put a figure on the chance of amputation occurring.  Mr Ackroyd said that the risk of post-operative amputation was relatively small.  

32.	On the evidence, I have concluded that there is a chance of Mr Chewings undergoing fusion surgery and that, if he does so, there is a real risk of serious infection developing. While the chance of amputation occurring after such an infection may be small, it is not negligible.  In my judgment, in the end, both experts were uncomfortable about ascribing a percentage to the chance of Mr Chewings having an amputation in the future. However, even Mr Ackroyd did not describe that chance as fanciful. 

33.	In my judgment, on the evidence, there is a real chance that Mr Chewings may have an amputation in the future as a result of his accident and its consequences. That chance is more than fanciful, although it is difficult to ascribe a precise percentage to it.  If it were necessary to do so, I would put the percentage at about 2%. 

Should discretion be exercised to make an award of provisional damages and, if so, for what period? 

34.	In my judgment, Mr Chewings’ situation is the very situation for which an award of provisional damages is entirely appropriate.  It is in the interests of the parties to reach a settlement, but there is a real chance that further extremely serious physical damage will be suffered by Mr Chewings as a result of the accident. As for the appropriate period for which damages are to remain provisional, Miss Perry submitted that because Mr Chewings is going to see his surgeon in September the period should be shorter than the five years asked for by the claimant.  Bearing in mind the evidence that Mr Chewings’ pain has progressed to the point that he now may contemplate surgery and the fact that five years have elapsed since the accident, I order that the award of £160,000 agreed damages be provisional for a period of three years from the date of the order made on this application.