What are provisional damages?
The use of provisional damages is becoming more prevalent in personal injury and clinical negligence claims. But what exactly are provisional damages? Personal injury and clinical negligence compensation has always traditionally been paid in a lump sum in full and final settlement of a successful claim. Once settled, there is no scope to re-open a case and pursue additional compensation should the injured person's injuries or condition significantly deteriorate beyond what had originally been envisaged.
Provisional damages allow greater security for clients who have not made a full recovery from their injuries. If there is a chance in the future that they will develop some disease or serious deterioration in their condition, it may be sensible to include an order for provisional damages in the final settlement. This provides the client with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.
Awards of provisional damages are most commonly seen in brain injury and spinal injury cases. In brain injury cases for example, an independent medical expert may consider that there is a risk of the person ultimately developing epilepsy in later life as a result of the original injury.
The key aspects of a claim for provisional damages are that the chance of significant deterioration must be measurable and not fanciful. In addition, the disease or deterioration itself must be serious.
A Court generally cannot impose a provisional award upon a client and it is usually a matter for the client as to whether, subject to the legal advice they may be given, they wish to pursue such an award.
James Braund, solicitor specialising in personal injury and clinical negligence claims, comments that “provisional damages may be appropriate in some cases and it is important for clients to receive specialist advice in this respect. Often Defendants will seek to ‘buy off’ the risk of a Court awarding provisional damages by offering a higher lump sum than the claim would otherwise be worth without the risk – sometimes this may be appropriate for a client, sometimes it may not. Much will depend upon the circumstances of each particular case.”