Lynch v Princess Alexandra Hospital: Provisional Damages in Clinical Negligence

Provisional damages – failure and success in one case

Richard Smith

In Lynch v Princess Alexandra Hospital [2026] EWHC 657 (KB) Mrs Justice Ellenbogen provided a very useful distillation of the law relating to claims for provisional damages, as well as an example of the careful application of that law in a clinical negligence context. The judgment is also a useful discussion of a range of other interesting issues pertinent to the assessment of damages, but those fall outside the scope of this article.

Lynch was a claim arising out of the failure to diagnose and treat developmental dysplasia of the claimant’s left hip which had been present from birth. The defendant admitted that, with reasonable (and usually basic) care, the claimant’s condition would have been diagnosed and she would have required early non-invasive treatment, resulting in an essentially normal hip. In the event, diagnosis was not made until the claimant was 3 years old, by which time her hip and socket had developed abnormally. She required numerous operations throughout her childhood and underwent a total hip replacement at the age of 22. The trial took place when she was 25.

The claimant claimed damages on a provisional basis arguing that there was a small but significant chance that the claimant’s physical condition might seriously deteriorate in the future. The order sought by the claimant with respect to provisional damages was as follows:

‘In the event that the Claimant suffers from a serious deterioration in her physical condition arising from thrombo-embolic complication, recurrent dislocation, deep infection, sciatic or femoral nerve injury, aseptic loosening due to wear/debris, premature component failure, femoral fracture, or persistent chronic pain related to her prosthetic left hip or any revision thereof such as to significantly impair her ability to work, carry out domestic tasks or to engage in leisure and social activities on more than a temporary basis (i.e. for a period exceeding 6 months):-

a. in the period prior to approximately age 46;

b. following revision of her left prosthetic hip, and within the period of:-

1. 19 years following a first revision procedure;

2. 14 years following a second revision procedure;

3. at any time following a third revision procedure during the Claimant’s lifetime;
   other than as set out as being likely in the judgment…

…

the Claimant may apply to the Court for an award of further damages provided that the application is made on or before three years of the date upon which …any such serious deterioration and long-term impairment became apparent… ’ (emphasis added by the Judge)

Ellenbogen J did not grant the order sought for reasons that will be explained below. Before coming to that, I will set out the jurisdiction to award provisional damages.

The Law

The power to award provisional damages was brought into being by Parliament in 1982 when section 32A of the Senior Courts Act 1981 came into force (the equivalent power in the County Court is provided by s51 of the County Courts Act 1984). Section 32A provides:

• 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.

• Subject to subsection (4) below, as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person—

• damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and

• further damages at a future date if he develops the disease or suffers the deterioration.
  The relevant procedural rule is set out at CPR r41.2(1), which requires the claim for provisional damages to be pleaded in the Particulars of Claim.

There are relatively few cases which consider the issue of provisional damages in detail. The leading reported case remains Willson v Ministry of Defence [1991] ICR 595 in which Scott Baker J identified three questions which had to be decided:

1. Is there a chance of the claimant developing the disease or deterioration in question?
2. Is the disease or deterioration serious? And
3. If so, should the Court exercise its discretion to make an award of provisional damages? This approach was approved by the Court of Appeal in Curi v Colina, The Times, 14 th October 1998. The issue of provisional damages has not otherwise been considered in detail by the Court of Appeal.

In Lynch, Ellenbogen J reviewed the way in which those questions had been approached in subsequent judgments (see paragraphs 307 and 308). In summary:

The chance

The claimant must establish on the balance of probabilities that there is a chance of serious deterioration in the future. The chance itself will be less than the balance of probabilities. It must be measurable rather than fanciful, however slim. It need not be precisely quantifiable, and the Court need not resolve differences between experts as to the precise extent of the risk. The cases establish that risks as low as 0.1 per cent suffice.

Seriousness

“A disease or deterioration may be serious because of its effect on the activities, capabilities, life expectancy, or financial position of the claimant. It must also be such that an award of damages which included a sum for the chance would be wholly inadequate to compensate the claimant for the position in which he would find himself once the chance had materialised.”

In other words, where there is, say, a 10% chance of a particular event occurring, awarding the claimant 10% of the damages which would fully compensate that event would not begin to provide compensation if the risk materialised. Contrast the risk of needing a single operation with a short recovery period with a life changing deterioration.

It is also important to be able to judge the seriousness of any deterioration against a clear background condition in the absence of the deterioration. The claimant must be able to show a serious deviation from the condition but for the deterioration.

The discretion

Ellenbogen J made clear that the starting point when considering the discretion to make an award for provisional damages is that section 32A creates a statutory exception to the general rule in English law that damages are assessed on a once-and-for-all basis. The usual approach to exceptions in law is that they are interpreted restrictively. Hence, as the Judge said, “it is desirable to limit an award of provisional damages to cases in which the adverse prospect is relatively clear cut and where there would be little room for later dispute over whether or not the contemplated deterioration had actually occurred.” She went on to cite the factors relevant to the exercise of discretion, as stated in Willson, as being “(1) whether, in respect of the relevant event, there can truly be said to be a clear-cut identifiable threshold; (2) the degree and consequences of the risk; and (3) the need to weigh up the possibilities of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the claimant’s right to return.” Her Ladyship also recalled that the Court of Appeal in Curi had said that the fact that there may be an issue on causation was not a bar to exercising the power to award provisional damages.

Application to the facts in *Lynch*

The Judge summarised the claim for provisional damages as follows:

“308. In sum, the Claimant seeks provisional damages in respect of one or more of the following risks: a) of complication leading to implant failure before she reaches the age of 47; b) of complication during each revision and prior to the end of its anticipated lifespan; and c) of the need for a Girdlestone procedure. Having regard to the legal principles summarised above, I am not satisfied that risks (a) and (b) entitle her to an award of provisional damages in this case.”

This assessment turned on the expert orthopaedic evidence which the Court had heard at trial. The Judge found that:

“In my judgement, the difficulty inherent in the Claimant’s position is that, whilst Mr Matthews is able to point to a more than fanciful chance that one or more complications might eventuate, he is unable to establish, on the balance of probabilities, a more than fanciful chance that the Claimant will suffer an associated serious deterioration in her physical condition, including by reference to the effect of the deterioration on which reliance is placed on her activities, capabilities, life expectancy; or financial position.” (emphasis in the judgment).

As discussed in the judgment, the expert evidence could provide broad statistical evidence of the risk of decline following the surgery that the claimant is likely to need in the future, but the evidence did not establish the risk of specific complications would lead to serious and defined deterioration in the claimant’s condition. The expert evidence was of risks of complication which “would restrict activity” or create “the need for additional assistance or earlier subsequent revision surgery”. The Judge’s conclusion was that this was too vague, especially against the evidence that there was likely to be a general decline in the claimant’s condition, which was taken into account in the award of damages made at trial.

The Judge concluded that the claimant failed to identify with sufficient clarity the deterioration (with respect to (a) and (b) in paragraph 308 quoted above) which would trigger the claimant’s entitlement to return to Court. She stated:

“Once it is acknowledged that: a) the development of a complication would not of itself necessarily constitute, or lead to, a serious deterioration in the Claimant’s condition, and b) the experts are agreed that the Claimant’s function will decline over time in any event, neither the existence of the complication nor the fact of decline per se can, without more, constitute the requisite serious deterioration. I consider the Claimant’s argument to be circular.”

The lack of a delineated deterioration also militated against an exercise of discretion in the claimant’s favour. The Judge said, in this regard:

• “… whilst it might be possible, with relative ease, to identify the occurrence of one or more of the complications set out in the draft order (with the possible exception of the last), the determination of its consequences would not be straightforward, not least as the Claimant’s stated intention is to rule out those complications the effects of which could be rectified by clinical management in the short term. It follows that the consequence of any identified complication would not be apparent at the point at which that complication arose. Acknowledging that certain complications could have serious consequences, on the evidence in this case it would not be straightforward to identify that which had flowed from the complication in question, given the agreed trajectory of declining function with each surgical procedure, leaving considerable scope for later dispute over whether or not the contemplated deterioration had occurred.” The Judge agreed with the submission on behalf of the Defendant that it would be difficult to separate out a decline in function owing to some complication falling within the compendious description advanced by the claimant from that which is already taken into account in the primary assessment of damages. This militated against exercising discretion in the Claimant’s favour.

It is of interest to note that the Orthopaedic experts appear to have given an opinion in their Joint Statement (whether invited in the agenda or not is unclear) that an award of provisional damages would be appropriate. The Judge did not agree and made clear that this was a matter for the Court in any event.

Notwithstanding the Judge’s rejection of the claimant’s arguments in respect of deterioration following surgical complications, she did make an order for provisional damages relating to the risk of the claimant requiring a Girdlestone procedure. That is surgery which is undertaken when other surgical operations are contra-indicated or have failed and results in severe loss of mobility and quality of life. The experts agreed that there was a low chance of it being required (less than 1%), but there were grave consequences should it do so. Therefore, it is a classic example of a situation where provisional damages would be appropriate. Ellenbogen J summarised her conclusion on this point as follows:

“312.   The relevant risk is clear and severable. A Girdlestone procedure is a clear-cut event and there would be little (if any) room for later dispute over whether the consequential contemplated serious deterioration had occurred. The degree and consequences of the risk are clear. I am satisfied that justice is better done by reserving the Claimant’s right to return to Court in the event that a Girdlestone procedure is required, at any point during her lifetime, and that it should be the undergoing of the procedure per se which triggers that right (and the running of time for the making of an application), rather than any specific consequence of it.”

Thus, the requirement of the Girdlestone procedure provided the perfect comparison with the unsuccessful aspects of the claim for provisional damages, which were not clear cut and left ample room for subsequent dispute.

Conclusion

This judgment provides a very useful (and short) distillation of the law on provisional damages. It also illustrates the rigour necessary when determining what constitutes a deterioration which qualifies for an award under section 32A, which is the exception to the usual rule. Experts are often able to point to broad risks, but risks of specific serious deterioration can be harder to establish. Only the latter are likely to form a sound basis for a provisional damages award.

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Last updated on April 8, 2026