Simon Brindle assists in £3.2 million plus Provisional Damages settlement of case involving Military Firefighter who suffered incomplete spinal injury

17 Oct, 2018

The Claimant, a Military Firefighter, suffered an incomplete spinal cord injury whilst on active duty. He was medically discharged from the Air Force and left with only a very limited residual earning capacity and significant care needs.

Of interest to practitioners might be the agreement as to Provisional Damages. Both Spinal Experts instructed by the parties agreed that the Claimant was at risk of developing syrinx as a result of his injuries. A syrinx (or, more accurately, syringomyelia) is a tube shaped, fluid-filled cavity that can form in the spinal cord following spinal trauma. It poses significant risks to a patient because it can be progressive and expanding. Such expansion ultimately can result in neurological damage to a patient's spine, resulting in tetra- or paraplegia. Treatment, currently, usually involves the insertion of a shunt to ameliorate the expansion. Occasionally, even perfectly performed surgery does not stop the expansion. In effect, therefore, the Claimant’s case was that he is at risk of a substantial deterioration in his physical condition occurring in the future.

The risk is lifelong, but very low. The expert evidence in the case was that the risk of the Claimant developing a syrinx was around or under 1%.  The vast majority of syrinx either do not cause significant symptoms or can be treated, either before they become symptomatic or afterwards.  However, the Claimant’s expert, Mr Brian Gardener, felt that the risk of the Claimant developing a syrinx that continued to expand, even following treatment, and resulted in a step-change in his physical condition, was 0.25%. The Claimant’s solicitors obtained evidence from the Claimant’s care expert that such a step change could result in an increase in the Claimant’s care and equipment need in the region of £92,000 per annum. If that change occurred at the date of trial, the Claimant’s claim would have increased by over £4million.

Initially, the Defendant resisted an award of Provisional Damages on the basis that: (a) 0.25% was not a sufficiently large enough risk; and (b) that it was impossible to define, with sufficient specificity, the ‘trigger event’ that would enable the Claimant to return to Court.  It contended that the mere development of a syrinx would not be sufficient, and an Order allowing the Claimant to return to Court in the event that he developed 'a serious syrinx' or 'serious consequences from a syrinx' was too subjective.

Case law on awards of Provisional Damages in syrinx risk cases is thin on the ground.  Practitioners might be aware that Irwin J appears to have granted a Claimant the right to return to court if he came ‘to develop serious consequences as a result of acquired syringomyelia’ in Kotula v EDF Energy Networks [2011] EWHC 1546. However, this was in the context of a 1% risk of ‘such consequences’ arising.

Notwithstanding its initial, understandable scepticism, the Defendant gave every impression of having a genuine desire to ensure that the Claimant was adequately compensated for his injuries. Its legal team adopted a co-operative approach to the litigation generally, and this issue was no exception.  So, after a period of reflection and exchange of some further evidence, the Defendant agreed to an Order for Provisional Damages being made, in terms that were not unduly restrictive or narrowly defined. It is hoped that the Claimant never has to make use of it.

Simon was instructed by Geraldine McCool of MPH solicitors.


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