The court was asked to look at three events envisaged, and to consider whether, if they did occur, they should be described as constituting serious deterioration.
Held: ‘First of all the development of arthritis to the extent that surgery is required. Osteoarthritis is a progressive condition. It is very common in cases where damage is suffered to an articular surface. I am not satisfied that it is established that deterioration to the point of surgery being required falls within the definition of serious deterioration in the circumstances of this case. It seems to me to be simply an aspect of a progression of this particular disease.
Secondly, development of arthritis to the extent that he changes employment. Again, it seems to me very much the same approach can be applied as with regard to the requirement of surgery and I do not think that deterioration triggering a change of employment can properly be described as serious within the meaning of the section.
Thirdly, that the plaintiff suffers a further injury in the nature of further damage to the ankle or elsewhere.’
The court rejected the Claimant’s approach: ‘The question then arises as to which cases are appropriate for a provisional damages award and which are not. I deal with this because, although I formed the view that there was no serious deterioration envisaged in this case, that was not a matter that I found entirely easy and indeed there are some matters that may more properly be dealt with under the heading of ‘discretion’ rather than taking into account the circumstances of the case in looking at whether or not the section was complied with.
The general rule in English law is that damages are assessed on a once-and-for-all basis. Section 32A of the Supreme Court Act 1981 creates a valuable statutory exception. In my judgment, the section envisages a clear and severable risk rather than a continuing deterioration, as is the typical osteoarthritic picture.
In my judgment, many disabilities follow a developing pattern in which the precise results cannot be foreseen. Within a general band this or that may or may not occur. Such are not the cases for provisional damages. The courts have to do their best to make an award in the light of a broad medical prognosis.
In my judgment, there should be some clear-cut event which, if it occurs, triggers an entitlement to further compensation.
Argument was addressed to the question of whether or not the discretion should be exercised. No doubt the courts will work out over a period of time the various factors that it may be relevant to take into account in the exercise of such a discretion. In my judgment, the important factors in this case are, first, to look and see whether, in respect of any of the three events outlined by Mr. Langstaff, there can truly be said to be a clear-cut identifiable threshold. In my judgment, there cannot.
I also take into account the degree of risk and the consequences of the risk. They do not seem to me to be such as to place this case into the category where there is a great demand that there ought to be only a provisional damages award at this stage.
In a sense, this point leads into the third aspect that I regard as particularly relevant to the exercise of this discretion, and that 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.
It seems to me that the case falls within the general run of cases where there are uncertainties as far as the future is concerned. Nobody can look into a crystal ball and see precisely how the condition of the plaintiff’s ankle will develop, but I think that the uncertainties are such that they can all properly be taken into account in making a once-and-for-all assessment of damages today. My conclusion therefore is that this is not an appropriate case in which to exercise discretion in favour of a provisional damages order.’
Judges:
Scott Baker J
Citations:
[1991] ICR 595, [1991] 1 All ER 638
Jurisdiction:
England and Wales
Cited by:
approved – Curi v Colina CA 14-Oct-1998
A chance of ‘serious . . disease or deterioration’ must be a measurable risk rather than merely fanciful. There must be a possibility of deterioration, but there is no need to show more than a possibility. . .
Lists of cited by and citing cases may be incomplete.
Employment, Personal Injury, Damages
Updated: 12 May 2022; Ref: scu.182880