Provisional Damages — can I claim more in the future ?
Legal claims involving compensation for injury are normally settled on a once and for all basis. A mere risk of future loss, however, can simply be assessed by awarding a percentage of the future financial loss by way of the traditional lump sum.
However, since 1985 the Court has been empowered to make an award of “Provisional damages” and this can circumvent the problem of there being possible, but not inevitable, deterioration in the future and which otherwise would result in either over or under compensation.
Further, since 2005 the Court has been enabled further to make awards by way of Periodical Payments with future variations built in to cover foreseeable changes. Such Periodical Payment Orders themselves can even have a “Provisional damages’” element.
The ultimate decision as to whether “Provisional damages” are awarded is at the Court’s discretion. If awarded this preserves the victim’s right to return to the Court if a specific deterioration arises. The Court can even impose an award of Provisional damages if made on a Periodical Payment basis, but in truth it is unlikely to do so if it is against both parties wishes. Defendant insurance companies much prefer Final awards, allowing them to “close their books” on the matter as it were.
The accident victim needs to show that there is a real risk (not “de minimis”) of serious deterioration. However, if the deterioration is pretty certain, say more than 50% likely, then the Court will adopt the once and for all lump sum approach.
Provided the condition is a very serious one, then even a very small risk of it developing can justify a provisional damages’ award.
Obviously the deterioration must have been originally caused by the accident in question and before the Court awards provisional damages it will want to be convinced that this causal link can be proved and the deterioration disentangled from other reasons in the victim’s medical background history. For this reason medical conditions such as arthritis which involve gradual deterioration never fare well in an application for Provisional damages.
Were the accident victim to subsequently die, the Damages Act 1996 ensures that an award of Provisional Damages is not a bar to any subsequent clam made by dependents under the Fatal Accidents Act.
A Provisional damages Order will usually specify the period in which an application may be made to the Court, but it can be expressed as being for one’s lifetime. In any event an extension can be sought.
Examples of awards which have been made are for risks of the development of epilepsy, meningitis, cancer, incontinence and impotence, mesothelioma and sympathetic ophthalmia.
Whilst Provisional damage awards are not appropriate where there is a risk that there will be no improvement in a condition, even if this is expected, this can be contrasted with situations where awards have been made where, for example, there is a need for an operation in the future and a small but ensuing risk such as amputation. The overriding consideration is that justice is achieved.