In XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) Sir Robert Nelson considered the question of whether provisional damages should be awarded in relation to a possible deterioration in a claimant’s psychological condition. The fact that the deterioration was unlikely to be permanent, and the problems of establishing causation militated against an award being made.


The claimant had suffered as a result of the defendant’s (admitted) negligence in failing to detect signs of cancer. She developed invasive cancer of the cervix.  One of the issues was whether provisional damages should be awarded as a result of a deterioration in the claimant’s psychological condition.


Provisional damages
  1. Whilst the parties are agreed that there should be an award of provisional damages in respect of the risk of radiation enteritis, there is no such agreement in respect of the risk of deterioration in the Claimant’s psychological condition as a result of failed surrogacy.
  2. The risk arises if there is complete failure in surrogacy. If there is one successful pregnancy with her own eggs the outlook for the Claimant is, in Dr. Gessler’s opinion, likely to be largely positive. Her concern is that ruminative and intrusive thoughts may return, even worse than before, if there were to be a final loss of fertility. This would not fulfil the full diagnostic definition of PTSD though depression could develop. Dr. Gessler describes the Claimant as using a ‘stoic’ coping mechanism to deal with her problems, which enabled her to continue working well but made her quite fragile. She assessed the risk of a catastrophic response in the event of a failed surrogacy at 30–40%.
  3. In her evidence Dr. Gessler said that if the Claimant’s psychological condition did get worse following a failed surrogacy she thought treatment would be successful and expressed the hope that one year’s psychological treatment of 45 sessions would be sufficient.
  4. The test for determining whether an award of provisional damages is appropriate is threefold. Firstly whether the risk of deterioration is real rather than fanciful, secondly whether the deterioration will be serious, and thirdly whether the case is a proper one in which to depart from the normal rule of awarding damages on a once and for all basis at the date of trial. The court is exercising its discretion in considering the test and must take into account in doing so the likely clarity of any future risk and the ease with which it can be separated from the existing medical condition. (Wilson v Ministry of Defence (1991) 1 AER 638, Kotula v EDF (2011) EWHC1546 QBYale-Helms v Countess of Chester Hospital NHS Foundation Trust Lawtel 10 November 2015, Curi v Colina The Times 14 October 1998.)
  5. Applying those tests to these facts I am clear that the risk of deterioration at 30 – 40% even though it only arises if the surrogacy fails, is real rather than fanciful. The second limb of the test presents a more difficult problem. It is difficult, in my judgement, to hold that a deterioration which may be severe but which is likely to be temporary and treated successfully in about one year can properly be regarded as serious under the test for provisional damages. This is not one of those rare cases where the normal rules for the awarding of damages should be displaced. The Claimant can be properly compensated within the normal rules. There is also the problem, which may arise, of establishing the origins of a particular psychological condition or its exacerbation. It is not therefore an appropriate case in which I should exercise my discretion in favour of an award of provisional damages regarding psychological injury.