In the vast majority of personal injury and clinical negligence cases, the damages awarded are a lump sum, and in very large cases a combination of a lump sum and some annual payments. These payments are the last part of the process, and once they’re awarded the door is closed to asking for any more money.
However, it is sometimes possible for the court to order the defendant to agree that the claim can be settled on a provisional damage basis, which means that if your health worsens as part of the injury, you can be awarded additional compensation to help cover any new costs that brings.
This could include developing a serious disease or deterioration in your physical or mental health.
When might provisional damages be awarded?
A good example would be a case where there was a risk of epilepsy in the future. The compensation claim can be settled on the basis that the claimant does not have epilepsy but that if they develop it in the future, as a result of injuries caused in the accident, then they can come back to court and claim further compensation.
Provisional damages are also very common in industrial disease cases where claims are made for injuries caused by asbestos inhalation. A client may have a relatively mild injury but there is a risk that they could develop more serious injuries such as lung cancer or mesothelioma in the future.
An example of provisional damages in a recent case
It is much rarer to successfully get provisional damages in a non-disease claim.
However, we recently had a case for a motorcyclist who suffered serious injuries to his lower left leg in a car crash. He had multiple fractures and an infection developed in his tibia. About three years after the accident he had his leg amputated. He was doing well with his modern prosthetics but the orthopaedic surgeon that we instructed was of the opinion that there would be a lifetime risk that the infection could flare up again, leading to our client having to have a through knee or above knee amputation.
A claim for an above knee amputation is commonly much higher than for a below knee amputation.
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 that he will be able to return to court and claim further compensation for 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 give peace of mind above and beyond that of a standard claim.
If you’ve been affected by an accident or industrial disease and would like to discuss your options, get in touch.