Provisional Damages and the Need for a ‘Clear-Cut Event’

28/05/2026

The recent decision in Lynch v Princess Alexandra Hospital [2026] EWHC 657 (KB) provides a useful overview of the criteria required to establish provisional damages in personal injury claims.

The Facts and the Claim

The claim arose from a failure to diagnose developmental dysplasia of the claimant’s left hip at birth. Due to a three-year diagnostic delay, the claimant required multiple childhood operations, had already required a hip replacement and faced a complex future prognosis with a range of possible surgical procedures over the rest of her life.

The claimant, aged 25 at the time of trial, sought an order for provisional damages under section 32A of the Senior Courts Act 1981. The draft order sought the right to return for further compensation if she suffered “serious deterioration” (lasting over 6 months) stemming from a broad list of potential implant complications, including deep infection, component failure, and persistent chronic pain. The expert evidence was that the risk of complications would “restrict activity” or create “the need for additional assistance or earlier revision surgery”. Somewhat unusually, the experts had agreed that provisional damages would be appropriate.

A further ground for seeking provisional damages was if the Claimant needed to have a Girdlestone procedure which, it was agreed, would have a profound and severe effect on the Claimant, albeit the chances of this occurring were in the region of 1%.

The Legal Test

Section 32A (the equivalent power in the County Court is provided by s51 of the County Courts Act 1984) provides:

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.
2. 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—
   • (a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
   • (b) further damages at a future date if he develops the disease or suffers the deterioration.

The leading authority, Willson v Ministry of Defence [1991] ICR 595, set out a three-stage test:

1. Is there a measurable (non-fanciful) chance of the deterioration occurring?
2. Is the potential disease or deterioration serious?
3. Should the Court exercise its discretion to make the award?

When considering the issue of discretion Willson highlighted three relevant factors:

a. whether, in respect of the relevant event, there can truly be said to be a clear-cut identifiable threshold;

b. the degree and consequences of the risk; and

c. 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.

Decision

Mrs Justice Ellenbogen refused the claimant’s application for provisional damages flowing from implant complications. Although the orthopaedic experts agreed that the statistical risks associated with the significant deterioration in the claimant’s function were more than fanciful, the application failed on the issues of seriousness and discretion. In particular, the Judge found that the claimant was “unable to identify a clear and severable risk (as distinct from a continuing deterioration); a clear-cut event which, should it occur, would trigger an entitlement to further compensation.”

The claimant’s orthopaedic expert evidence could only show that complications might “restrict activity” or create a “need for assistance“, and the Judge found this too vague when measured against the claimant’s likely deteriorating baseline which the experts agreed would naturally decline over time as a result of her primary injuries.

The Judge agreed with the Defendant’s submissions that it would be difficult for any future court to separate out any decline in function that had already been anticipated from changes in function caused by complications arising from the implant.

The claimant had some consolation as the Judge, applying the same rationale, granted provisional damages for the Claimant’s specific risk of requiring a Girdlestone procedure (a severe salvage surgery removing the femoral head).

Although the risk of the procedure was low it represented a classic case for provisional damages as the effect of the surgery was a binary event that was acknowledged by the orthopaedic experts to be likely to cause a severe change in the claimant’s ability to function. The Court ruled that the need to have the operation itself rather than its functional consequences would trigger the right to apply for further damages thereby reducing the risk of any future dispute about whether the criteria envisaged by the Court were in fact met.

Conclusion

The Judgment in Lynch is a useful reminder of the law on provisional damages and provides helpful guidance on the criteria to be applied when determining whether an order should be made. In particular, it highlights the need for experts to spell out the specific risks of a serious change in circumstances brought about by a clear event, rather than merely asserting a risk of general future deterioration.