What are provisional damages?
In the vast majority of successful clinical negligence claims, compensation is awarded on a full and final basis. This means that once a case has concluded, whether via an out of court settlement or following a trial, there is no scope to re-open a case to pursue any additional compensation. Where a claimant’s condition has the potential to deteriorate, an award of provisional damages may be more appropriate than a full and final settlement.
Provisional damages may be appropriate where a claimant has not made a full recovery from their injuries, or where there is a material risk in the future that their condition may deteriorate. In this situation, provisional damages allow a claimant the option of returning to the court to seek further compensation in the event of deterioration after the claim has concluded.
Awards of provisional damages are common in brain injury cases. As an example, if medical evidence is obtained indicating that the brain injured person is at risk of developing epilepsy in the future as a result of the negligently caused brain injury, a provisional damages award may be appropriate so that the claimant could revert to the court for further compensation if epilepsy developed after the case had concluded.
The main criteria for claiming provisional damages is proving that there is a material risk of deterioration (it must not be too remote a prospect) and the deterioration itself must be sufficiently serious.
It is a matter for the court to decide whether provisional damages are appropriate and to determine the terms allowing the claimant to return to the court to seek a further award of compensation. Medical evidence from an independent medical expert is likely to be necessary to identify the exact nature of the risk and how this would impact on the claimant concerned. If the court is satisfied that the criteria for provisional damages have been met, it would make an order for provisional damages.
When pursuing a clinical negligence claim, it is important that you obtain advice on the types of compensation you are likely to receive, to include provisional damages where appropriate. At Graystons our specialist solicitors are experienced in pursuing complex claims, including claims for provisional damages. For further, no obligation advice on your potential claim, please contact Graystons.