Event Does Not Have to be Likely to Justify Claim

A recent case has confirmed that where an injury is sustained which may lead to a later health problem, provisional damages can be awarded even when the likelihood of the future problem is only a possibility, not a probable event. In other words, there is no need to show on a balance of probabilities that the health issue will occur: the mere chance that it will is sufficient to bring a claim.

The case concerned a man who suffered a serious ankle injury in a road traffic accident. One of the long-term implications of the injury and his subsequent medical care was that it might at a future date be necessary to amputate his leg below the knee. It was considered that the probability of the amputation being necessary was approximately two per cent.

When the claimant sought damages, his claim was defended on the basis that, on the balance of probabilities, the amputation would not be necessary. However, the court ruled that the claim was not merely fanciful and provisional damages were due even though the chances of the amputation being necessary were slight.

In such cases, the damages awarded are reduced to reflect the low probability of the occurrence of the event.