Q&As

Is there any guidance or case law on how to calculate a claim for a 5% increased risk of future surgery attributable to negligence? Provisional damages cannot be claimed because the risk was always there.

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Produced in partnership with Peter Edwards of Devereux Chambers
Published on LexisPSL on 23/11/2018

The following PI & Clinical Negligence Q&A produced in partnership with Peter Edwards of Devereux Chambers provides comprehensive and up to date legal information covering:

  • Is there any guidance or case law on how to calculate a claim for a 5% increased risk of future surgery attributable to negligence? Provisional damages cannot be claimed because the risk was always there.

Is there any guidance or case law on how to calculate a claim for a 5% increased risk of future surgery attributable to negligence? Provisional damages cannot be claimed because the risk was always there.

Although there may be specific factors that are not detailed in the question that render an award of provisional damages inappropriate in this case, it is generally not correct to state that provisional damages are prohibited simply because the risk, ie the event constituting a deterioration for the purposes of CPR 41.2—was always there.

Provisional damages can still be awarded, and frequently are, on the basis that injuries sustained in an accident have increased the risk of deterioration or adverse event that was already present prior to the accident.

The most common example of this, is the risk of epilepsy that has been increased by a traumatic brain injury (TBI). The lifetime risk of developing epilepsy in the general population is 1.6% to age 50. Hence, the risk is always there. A moderate or severe TBI will certainly have the effect of significantly increasing that risk, particularly over the first five to ten-year period following the TBI. It is that increase in the risk that provides the basis of

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