In the vast majority of personal injury and medical negligence claims, the compensation is awarded either as a lump sum or, in more complex cases, as a combination of a lump sum and annual payments. Courts take into account future risks, such as the possibility of needing further surgery or rehabilitation. However, there are cases in which the court may agree to settle a claim on a provisional damages basis. This offers significant flexibility and provides an additional safety net for claimants facing uncertain future medical risks.
What Are provisional damages?
Provisional damages are a unique form of compensation available in clinical negligence claims where there is a real chance that the claimant may develop a serious disease or experience a significant deterioration in their physical or mental condition in the future. The key aspect of provisional damages is that they allow a claimant to return to court and seek further compensation if their condition worsens.
This provision is particularly relevant when there is uncertainty about future medical developments that could arise as a result of the injury or negligence. For example, a claimant who has sustained an injury that may later lead to the development of epilepsy, could receive compensation based on the current state of their health, but with the possibility of future claims if they develop epilepsy as a result of the injury. The claimant would then be entitled to seek additional compensation if their health deteriorates in the future due to that condition.
In medical negligence claims, this provision is often invoked in situations where medical mistakes or errors lead to conditions that could evolve into more severe health problems over time. Common examples include the delayed onset of conditions like cancer following misdiagnosed illnesses, or the risk of complications that may arise after surgery.
Legal Basis for provisional damages
The legal basis for provisional damages was established by the Law Reform (Personal Injuries) Act 1948, and more recently, Section 32A of the Senior Courts Act 1981. This provision enables a court to order that a claim be settled on a provisional basis, which means the claimant receives compensation in the usual way but retains the right to return to court for additional compensation if their condition deteriorates in the future. A key part of this concept is the need for a realistic chance that the condition will worsen.
The claimant must demonstrate a likelihood (but not certainty) that they will develop a further condition or suffer from a more serious deterioration. The claim for further damages can only be made within a defined period (usually three years) after the initial award, which is intended to ensure that provisional damages are not used inappropriately.
Practical examples in medical negligence claims
1. Industrial Disease Cases: Provisional damages are commonly awarded in industrial disease cases, particularly where long-term exposure to harmful substances like asbestos has led to respiratory problems, but there is a risk of developing more serious conditions, such as lung cancer or mesothelioma. In these cases, a claimant might have a relatively mild current condition, but the risk of further deterioration (e.g., the development of mesothelioma) remains a possibility, making provisional damages an important part of the settlement.
2. Medical Negligence: In medical negligence, provisional damages may be applicable when a medical error leads to a condition that carries future risks. A good example would be if a patient had surgery that resulted in nerve damage, and there is a chance that this damage could worsen over time, leading to permanent disability or the need for further medical intervention. If the patient does not suffer from a deterioration immediately, they may still have the option to return to court in the future to claim further compensation if their condition worsens.
We recently represented a motorcyclist who suffered serious injuries to his lower left leg in a car crash. The initial injury led to multiple fractures and a subsequent infection in the tibia. Years after the accident, the man had to undergo a below-the-knee amputation. While he adapted well to prosthetics, there was a concern that the infection could resurface, requiring an above-the-knee amputation, which would involve significantly higher costs, both for prosthetics and long-term care.
Through careful negotiation, we were able to secure a settlement that included both a lump sum and provisional damages. This agreement ensured that if the infection worsened and the claimant needed an above-the-knee amputation, he would be able to return to court to claim further compensation for the additional expenses, providing him with peace of mind.
Our client was relieved when we were able to negotiate a settlement that gave him a significant lump sum and also provisional damages. He described the provisional damages as being like an insurance policy. He now knows that if he is unlucky enough to suffer a higher level amputation, he will be able to return to court and claim further compensation for the extra expenses such as more expensive prosthetics and care and assistance.
Provisional damages are quite rare but it is important that your solicitor is aware of them because, in the right case, they can make a big difference to the claim and can give peace of mind.
The motorcyclist was represented by Richard Wargent, Senior Associate, Personal Injury.