What if my injury gets worse once my claim has settled?

One question I have been asked many times and continue to be asked by clients with long term concerns over the effect of their injury is “what if I get worse…what happens then?”

The simple answer is that in many cases, nothing further can be done once a claim has settled which means it is paramount to ensure that any long-term future risk of deterioration in condition is identified prior to a claim settling.  The future risks and consequences need to be addressed both before and at the settlement stage. This means being aware of any potential risks in deterioration of a condition and the consequences of such risk materialising by asking relevant and carefully worded questions of your expert.  You need to have a reasonable understanding of the injury and what possible risks could lay ahead.

In most personal injury cases, claims are settled on a full and final settlement basis meaning that once an award is agreed or ordered by the court, the claimant will not be able to seek an additional award should a deterioration occur, despite the severity of the deterioration, or its consequences on the claimant.

The result is that a balance needs to be achieved to ensure the claimant is properly and adequately compensated for the injury they have suffered, any losses that arise from those injuries and importantly, any future losses they are likely to incur.

Is there an option for the parties and the court to consider?

The answer is yes but it is not something a court will be easily persuaded to award.  Part 41.2 of the Civil Procedure Rules and Section 32A of the Senior Court Act 1981 allow an award of “provisional damages” to be made, on the assumption that the person injured will not develop the disease or suffer a deterioration in condition that they risk, and permit them to return to the court to seek an additional award of damages should that risk manifest within a timeframe the court specifies.

For a court to consider making an award of provisional damages in a claim for personal injury, it must be satisfied that there is proved, admitted, or a chance that at some definite or indefinite time in the future, the injured person will develop some serious disease or suffer some serious deterioration in their physical or mental condition, as a result of the negligent actions of the defendant that give rise to the claimant being awarded damages in the first instance.

In Wilson v Ministry of Defence 1991, I All ER 638, the claimant sought provisional damages after suffering a serious foot and ankle injury where it was anticipated the condition would deteriorate and result in osteoarthritic changes, leading to the potential for future significant surgery. The court refused the application for damages to be awarded on a provisional damages basis, finding that osteoarthritis was a gradual deterioration of that condition and not likely to be a serious deterioration. The court also identified the three specific points that need to be considered when deciding if provisional damages were suitable.

The first is whether it is proven by the injured person, or admitted in evidence that there is a “chance” of that person either developing the disease in question or suffering a deterioration in condition.

In giving judgment, the court added that the “chance” referred to of suffering or developing the specified disease or deterioration should be “measurable rather than fanciful”. This leaves open to interpretation on a case-by-case basis what is regarded and construed as measurable, and careful examination of the expert witness is vital to establish the consequences to the injured person should the chance materialise.

The second and crucial point is whether the onset of the disease or deterioration will be serious. In this context, a disease or deterioration may be “serious because of the effect on the activities or capabilities of the injured party, or because of its effect on his or her life expectancy, or because of its effect on his or her financial position” as identified in Curi v Colina (CA The Times 14.10.1998). So, the issue of serious is not restricted solely to the condition itself but the consequential effect this may have on the injured person.

Thirdly, if these two points are satisfied, should the court exercise its discretion and allow an award on a provisional damages basis?

It is clear from the third point that provisional damages are not, and never will be considered an automatic remedy for an injured person where the first two parts of the test are satisfied. To do so would dis-apply the conventional approach that awards of damages in personal injury cases should be made on a final settlement basis.

So how far does an injured person need to go to show there is a chance of developing a specified disease or deterioration in condition? This is likely to depend on the nature and seriousness of the deterioration that is considered likely and the degree of chance of this happening along with the consequences the deterioration will bring with it.

In Butler v Ministry of Defence [2015] EWCH 3384, the claimant suffered a serious leg injury, where it was proven that there was a 25% risk of his injury leading to amputation at a future date. The court refused to award provisional damages and held that “In respect of the 25% risk of amputation, it seems that the fact of amputation itself in the event of a 70% improvement in overall symptoms and function cannot properly be described in the context of this case as a serious deterioration. Of course, there would be the cosmetic defect and the need for a prosthesis, but the claimant currently has a painful, non-weight bearing cold and/or hot discoloured foot and needs an air cast boot and usually crutches to mobilise”.

It is difficult to understand how, the loss of a limb which might improve the pain in that limb, cannot be considered anything other than a serious deterioration in the claimant’s condition as at the date of the trial. Nevertheless, the judge increased the award by 25% to reflect the risk of amputation, despite the clear risk of the claimant being under compensated if the risk materialised, but then awarded provisional damages against the risk of CRPS, phantom limb pain, or the risk that if the claimant underwent amputation, there was a chance the amputation could lead to a failed post-operative stump and long-term pain.

It is a matter of discretion for the court in deciding on whether to award provisional damages where the primary two tests are satisfied and the need to do justice between a claimant and a defendant. In Allot v CEGB 1998 Unreported where it was stated that exercising discretion “…is weighing up the possibilities of doing justice by a once and for all assessment against the possibility of doing better justice by reserving the plaintiff’s right to return”.

In Mathieu v Hinds (1) and Aviva Insurance (2) [2022] EWHC 924, the claimant suffered a serious head injury and, while making a good recovery and then developing a successful career, alleged the consequences of his injury affected his future income potential and sought provisional damages for his increased risk of developing post traumatic epilepsy and dementia because of his head injury.

There was expert evidence before the court that the claimant had an increased risk of between 5 – 8% of developing epilepsy, which the court accepted was measurable chance of a serious deterioration in condition. The court accepted that epilepsy was both identifiable and severable from the claimant’s condition at the time of the trial and should the risk manifest and he develop epilepsy as a result of the defendant’s negligence, it would be unfair to leave him in the position where he would be denied the opportunity of further damages. Therefore, provisional damages were awarded to the claimant, throughout his lifetime, against the risk of him developing epilepsy. However, on the application for provisional damages against the risk of dementia as a result of the head injury, this was refused. The claimant was unable to show that there was nothing more than a fanciful chance of his developing dementia through this single head injury.

Provisional damages can be a useful tool in preserving and protecting the rights of an injured person to seek an additional award, where there is a recognised admitted or proven disease or serious deterioration in condition occurring that cannot be fully accounted for at the time of settlement. However even with an admitted or proven risk being established, the court retains a discretion to leave open or close the door on a claimant to an additional award.