XX V WHITTINGTON – Knowing when to return?

Sir Robert Nelson on 18th September handed down judgement in this case. Claire Watson instructed by Irwin Mitchell LLP appeared for the Claimant; Charles Feeny, instructed by Bevan Brittan LLP appeared for the Defendant.  XX attended smear tests administered by doctors working for the Defendant in 2008 and 2012, and subsequently attended biopsies in 2012 and 2013. Through negligence, the claimant’s cervical cancer was not detected on these occasions, and the consequently delayed treatment led to a number of seriously adverse effects. Some of these effects occurred whilst the cancer remained undiagnosed, and others as a direct result of the treatment. These effects are summarised at paragraph 18 of the judgement:

“a) The development of invasive Stage 11B cancer, which necessitated surgery to remove her lymph nodes and transpose her ovaries, and chemo-radiotherapy.

b) The complete loss of fertility where XX has no children but had always wanted to found a family of her own.

c) Radiation induced bladder injury leading to urinary urgency, urinary frequency, excessive night time urination (nocturia) painful urination (dysuria), blood in her urine (haematuria) and urge incontinence for which she wears pads.

d) Radiation induced pelvic pain.

e) Radiation induced bowel injury: radiation proctitis, functional diarrhoea and bile salt malabsorption causing bowel frequency and urgency, loose stools and occasional incontinence.

f) Vaginal stenosis and impairment of sexual function.

g) A constant heavy feeling in both legs with pins and needles, which interferes with her sleep at night.

h) Loss of hormone production leading to premature menopause.

i) Anxiety and depression associated with the diagnosis of cancer, the radiation induced injuries to her bowel, bladder and vagina and her inability to conceive or carry a pregnancy.

j) The risk of recurrence of cancer and the associated fear of the same.”

Key Issues:

The principal issue that has attracted attention in this case concerns surrogacy arrangements. The claimant gave significant evidence as to her extreme desire for children, particularly of her own. She claimed that she intended to seek to use the system of commercial surrogacy in California, given its administrative advantages to that in the UK – where such commercial arrangements remain illegal – but that she would be prepared to seek a solution here, if her initial plans failed. The question arising from this is the correct approach to take towards claiming the costs of these options, given the state of domestic law on the subject.

Sir Robert Nelson set out some further legal and factual background; notably the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. This case concerned Ms. Briody, who similarly sought to recover the costs of a surrogacy arrangement based in California (with her own eggs) or alternatively using donor eggs in the UK. The Court of Appeal rejected the claim on the basis that the Californian arrangement was illegal in the UK and the chances of success were miniscule (around 1%). Sir Robert Nelson noted that the use of donor eggs would have been rejected as it did not make up for what she had lost (a child of her own). He also noted Lady Justice Hale’s opinion that the Californian arrangement was contrary to public policy ‘clearly established by legislation’, but also that the question of recovering the cost of surrogacy in the UK, compliant with domestic law and using the mother’s own eggs, was left open – albeit with Lady Justice Hale commenting that she saw such a claim as ‘a step too far’.

Aside from the direct surrogacy point, three further notable issues arose:

  • The availability of provisional damages for a (further or repeated) deterioration of psychiatric condition following an ultimately failed surrogacy strategy.

In particular, the loss of fertility was of concern during her treatment and was noted to have been a significant cause of the psychiatric conditions for which she was treated. Dr. Gessler, who had treated XX previously and gave an opinion in this case, was clear that a potential risk of psychiatric deterioration was present in the event that her attempts at surrogacy proved unsuccessful. The evidence of Dr. Gessler was of a 30-40% chance of a ‘catastrophic’ response to a failed surrogacy, which would be likely to require one year’s (45 sessions) treatment.

  • The applicability of a ‘multiplier/multiplicand’ approach under the Ogden Tables to the claimant’s position.

The claimant works as a manager at a Neal Yard Remedies store in London, and despite some recent instances of time off in connection with her condition, she was recently promoted (albeit that she then had to decline a further offer of promotion due to her difficulties). She is working in the same employment, at the same hours and now at an increased level of pay.

  • The availability of costs based upon recourse to private medical treatment where the NHS has proved insufficient.


Sir Robert Nelson decided that, in relation to the claim for costs of surrogacy in California, he was still bound by Briody. He expounded that regardless of the location of the contract, the arrangement is illegal under UK law and cannot therefore ground a claim for expenses – including those which would be “reasonable” under the UK system – as the entire contract is contrary to public policy. The judge stated that the changes in legislation since Briody did not alter this point, since they do not render the contract in question legal; any reference to cases in Family Courts surrounding parental orders did not alter this position, which was determinative. Sir Robert Nelson was, however, prepared to accept that attitudes may well have changed, but that he was bound by the decision in Briody. It was for Parliament, or possibly the Supreme Court to change the law, if that was appropriate..

In relation to the claim for the costs of a UK arrangement, Sir Robert Nelson came to a different view. He noted that such an arrangement was neither illegal nor contrary to public policy, and that it was difficult to see, where prospects of success were reasonable, and especially in light of the claimant’s particular efforts to delay her treatment and freeze her eggs, allowing such a claim should constitute a “step too far.” He therefore allowed the claim for two surrogacies (based upon a balance of probabilities assessment of the success of such by both sides’ experts) at £37,000 each. The judge did also note that he was still bound by Briody in relation to a claim based upon the use of donor eggs; on the basis (as noted) that it was not restorative of the actual loss.

Sir Robert Nelson set out the threefold test for provisional damages: whether the risk is real rather than fanciful; whether the deterioration will be serious; and whether the case is a proper one to depart from the normal rules. Whilst he found no problem satisfying the first element, he found that whilst not insubstantial, the ability to cure within a year’s treatment did not qualify this particular instance as ‘serious’, and that this was not a case where the normal rules should be displaced.

The judge noted both that XX was in nearly identical employment to before the accident, and yet had had to turn down a further promotion, and considered that this was sufficient to be considered disabled under the Ogden Tables’ definition. However, the judge accepted that he should follow the approach of the Court of Appeal in Billett v Ministry of Defence (2015) EWCA Civ 773, in applying the ‘Smith v Manchester approach’ of broad assessment. He echoed the sentiment in Billett that a multiplier approach may produce “hopelessly unrealistic” results. He therefore assessed the loss of future earnings at 4 years, to reflect the difficulties she would face on the labour market were she to need to find alternative employment.

In assessing the claim for supply of one drug in particular (Cholestagel), whilst Sir Robert Nelson did find the claimed figure excessive, he did make some allowance for the fact that whilst generally available, restrictions on supply via the NHS were sufficient to allow for some amount to cover the contingency of seeking private replacements. Where treatment was acknowledged to be unavailable via the NHS, private treatment was permitted to be claimed in a handful of other examples of required future treatments.

Charles Feeny’s comments

The award of damages for surrogacy costs, albeit on a limited basis and subject to proof of reasonable prospects, will no doubt be considered the most significant feature of this case.  Given the possibility of the issues being considered on appeal in this context, it would be inappropriate to say too much at this stage.

However, the judgment is interesting for a number of other reasons reflecting the breadth of the dispute between the parties and with the Judge having to resolve issues which are regularly discussed in personal injury claims, but not necessarily subject to many judicial decisions.

Provisional Damages

  • The medical evidence established that the Claimant had significant risks in relation to radiation enteritis and further psychological damage.  Sir Robert Nelson took what might be described as a conventional approach to the question of whether these risks should be subject to an award for the payment of provisional damages and if so, on what terms.  The analysis of Sir Robert Nelson, in particular at paragraph 29 of the judgment, referred to the well-known authorities on whether a risk is appropriate for the payment of provisional damages; in particular Wilson v Ministry of Defence [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1991] 1 All ER 638.  The Judge considered that provisional damages should be awarded only where, to paraphrase, there was evidence of a clear, severable, and serious risk of further injury.
  • Against this background, whilst the Judge recognised that the risk of further psychological injury was real and of a serious nature, he did not consider that it was sufficiently serious to justify an award for the payment of provisional damages.  He indicated that such award should only be made in “rare” cases.  This is consistent with a judicial approach which represents a substantial policy element in only awarding provisional damages where there is a risk of serious injustice if such an award is not made.  It could be considered that an award for provisional damages should only be made where there is a clear indication that a contingent award could grossly under-compensate the Claimant.
  • Similarly, in relation to radiation enteritis; whilst Sir Robert Nelson was prepared to make a provisional award, the actual award made as agreed between the parties did not simply relate to radiation enteritis, but was restricted to radiation enteritis “causing intestinal failure and requiring Home Parenteral Nutrition (HPN)”.  The Claimant was at risk of radiation enteritis falling short of its most severe form, but it was agreed that an order for the payment of provisional damages should only be made in respect of the worst possible outcome.
  • A Defendant would ordinarily seek to restrict an order for provisional damages to the highest level of additional injury so as to reduce the possibility of a Claimant returning.  What is not always appreciated is that a Claimant is often best advised to take this approach.  By virtue of CPR 41.3(2), a Claimant is entitled to return only once for further damages.  If the Claimant exercises a right to return in circumstances in which there has been deterioration, but there still remains scope for further deterioration, the Claimant might be facing the very problem the provisional damages are intended to avoid; the Claimant might still have to seek damages for the worst possible outcome on a contingent basis.  This would occur in situations in which the Claimant had deteriorated but the final prognosis was still uncertain.
  • What also perhaps is overlooked in this context is that the Claimant still remains entitled to damages on a contingent basis up to the level of deterioration which would trigger the Claimant’s entitlement to further damages.  This is reflected in the present case in paragraph 75 of the judgment, where the Judge made an award for future radiation enteritis notwithstanding that radiation enteritis was subject to an order for the payment of provisional damages.

Loss of Earnings

  • Following Billett v The Ministry of Defence [2015] EWCA Civ 773, this is another case where a Judge has found that a Claimant was disabled for the purposes of the Equality Act 2010 and the Ogden Tables, but deviated very substantially from the award which would have been appropriate had the Ogden Tables been followed without any adjustment.  Sir Robert Nelson based his award substantially upon an assessment of the Claimant herself, who despite her ongoing symptoms, had managed to maintain employment and indeed been promoted.  The Judge’s clear view was to make this independently assessed award since the Ogden Tables would produce a sum greatly in excess of the Claimant’s likely loss of earnings.
  • It might be argued that the Judiciary are now reverting to type, notwithstanding the information available to them in the Ogden Tables and the supporting research.  However, it is probably more realistic to look at this situation as emphasising what is perhaps now a recurrent issue in personal injury litigation; that is the application of statistical evidence to an individual case.  The definition of disability is very broad and encompasses a wide range of presentations.  Clearly, there are some disabilities with which a person could not reasonably cope in the labour market, whereas, as with this Claimant, there are those who are disabled but have the fortitude and determination to cope with this disability.  Against this background, whilst the Ogden Tables and the underlying research provide useful background information in relation to the issue of loss of earnings, ultimately the formulaic approach cannot replace the value of a judicial assessment, considering the Claimant and all her circumstances.

Costs of Treatment

  • The Claimant sought a wide range of expensive drugs and treatment, notwithstanding that her engagement with such drugs and treatment to date had been very limited and notwithstanding that many of the items sought were available on the NHS.  The Schedule was characteristically presented on the basis of a reasonable requirement for such drugs and treatment, largely on the basis of expert evidence suggesting that such drugs and treatment would be appropriate.  The Defendant’s position was that the Claimant must not only prove that the drugs and treatment amounted to a reasonable requirement, but that in probability she would incur the expenditure claimed in the respects set out in her Schedule.  The Judge accepted the Defendant’s basic approach and had to make substantially speculative judgments as to the extent to which the Claimant would engage with the drugs and treatment claimed.  Against this background, the Judge took an inevitably cautious approach in relation to the assessment of these heads of damage.  From a Claimant perspective, the case perhaps emphasises the value of having an established position or regime at the time of assessment, as opposed to seeking damages in respect of such expenditure on the basis that it is likely in the future.