Provisional damages allow a claimant to conclude a personal injury claim by judgment or a court-approved, negotiated agreement, while leaving the door open to claim additional compensation in the future if a serious medical condition develops.
The phrase ‘provisional damages’ sounds like another piece of overly complicated legal jargon. In fact, the explanation of this complex-sounding idea is quite straightforward.
How Does Personal Injury Compensation Usually Work?
To understand the purpose of provisional damages in serious injury claims, it’s important to understand the way personal injury compensation works.
The total amount of compensation a claimant receives at the end of a claim is intended to put them, so far as money can, into the position they would have been in but for the defendant’s negligence.
So, every part of their claim is valued in monetary terms: compensation for their pain, suffering, and loss of amenity, as well as purely financial losses, such as loss of earnings, the cost of rehabilitation equipment, and the cost of a replacement motor vehicle, etc.
In most personal injury cases, the full extent of the claimant’s injuries and losses is apparent by the time their compensation comes to be negotiated or decided by the court.
Once a judge has decided how much a claim is worth, a claimant can’t usually go back to court and ask for more.
Similarly, settlements are usually reached on a ‘final’ basis, which has the same effect; once a claimant has agreed to accept a sum of money, they can’t then bring a further claim against the defendant for the same injuries.
That’s why experienced personal injury solicitors, like the ones at Mooneerams Solicitors, are so careful about gathering as much evidence as possible in support of their clients cases, and why injury claims sometimes take longer to resolve than clients may expect.
It’s vital to make sure every penny the client is entitled to is recovered, since a claim is ordinarily concluded once and for all.
When Can Provisional Damages Be Awarded?
The normal rule that a damages award should be final makes sense in most situations. Defendants need peace of mind that the matter has been concluded, and claimants need to know that they’ve been fairly compensated for the harm they’ve suffered. Both parties can then move on knowing the matter has been resolved.
That said, the rule’s finality doesn’t account for the fact that, sometimes, it’s simply impossible to know the long-term impact an injury might have. This creates a problem. Does the court overcompensate a claimant if there’s a real risk that their condition will deteriorate, or does it base the damages on the claimant’s condition now, and risk them being undercompensated in the long run?
Given that neither solution is satisfactory, the law provides for an exemption to the general rule that damages are final. Where specific legal conditions have been met, the claimant may receive a ‘provisional damages’ award instead of one for final damages. Then, if their condition worsens, they can seek further damages from the defendant.
What Legal Tests Must Be Met?
Not every personal injury claimant is entitled to a provisional damages award. To qualify, a claim must meet the legal tests set out in the Senior Courts Act 1981 (section 32A) and the County Courts Act 1984 (section 51). Subsection (1) of the 1984 Act states:
“This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition”
The legal case of Willson v Ministry of Defence (1991) ICR 595, helpfully identifies three questions the court will consider:
- Is there a chance that the claimant will develop the disease or a serious deterioration within s32A (1) of the Supreme Court Act 1981?
- Is the disease or deterioration in condition serious?
- Should the court apply its discretion to make an award of provisional damages?
Importantly, the Civil Procedure Rules at CPR 41.2 and Practice Direction PD 16 state that in a case where provisional damages are sought, the Particulars of Claim and the court’s order must specify the disease or type of deterioration relied upon and specify the period within which a future application can be made for further damages should the condition develop.
It is not enough to argue that the claimant’s general condition may get worse; a specific risk must be identified. If that condition later develops, the claimant may apply to the court for further damages.
Examples of Provisional Damages Cases
A few examples of cases in which provisional damages might be awarded, when:
- A claimant has suffered a brain injury and has a risk of developing epilepsy.
- There is a real risk that a claimant’s orthopaedic injury may lead to amputation of a limb, at some point in the future.
- A spinal injury comes with a risk of progressive neurological deterioration leading to paralysis.
- A claimant’s eye injury means there may be a measurable chance of future sight loss.
It is important to note that whether provisional damages are awarded in a particular case will depend on the evidence supporting the claim and the precision of the pleadings.
Why Provisional Damages are Important in Serious Injury Claims
Suffering a life-changing injury can have a major impact not only on a claimant’s physical health but also on their mental well-being.
The worry of how they will pay for ongoing care or look after themselves and their families financially, if their condition worsens, is something that someone who has already gone through a great amount of anguish and physical pain shouldn’t have hanging over them indefinitely.
Provisional damages ease this pressure a little by giving claimants peace of mind. If the specific deterioration identified at the time provisional damages were awarded comes to fruition, they will be able to return to court and seek further compensation.
An award of provisional damages removes the temptation to inflate the initial claim to account for the worst-case scenario and then have to deal with the inevitable pushback from the defendant.
Instead, they can be fully compensated for where they are ‘now’, with a genuine safety net in place in case things don’t turn out as hoped.
Do You Need a Solicitor to Claim Provisional Damages?
Provisional damages aren’t awarded automatically. They must be specifically claimed and properly pleaded. Working with experienced personal injury claims solicitors like Mooneerams ensures that the claim is handled by lawyers with the experience and expertise to achieve the very best result.
A claimant’s solicitors should consider and plead provisional damages in cases where the evidence justifies it. Failing to consider whether provisional damages apply in a given case can have serious consequences.
Mooneerams usually work on a No Win No Fee basis. We’ll talk you through how our No Win No Fee arrangement works before starting your claim, so you understand what it means and where you stand at the outset.
To get in touch with us, you can contact our team here or call us on 029 2199 1927
Posted in Personal Injury Claims
