Personal injury and clinical negligence compensation is traditionally paid in a lump sum in the final settlement of a successful claim. Once settled, you can not re-open a case and pursue additional compensation should the person’s injuries or condition deteriorate beyond what had originally been envisaged.
Provisional damages allow greater security for clients who have not made a full recovery from their injuries. If there is a chance in the future that they will develop some disease or serious deterioration in their condition, it may be sensible to include an order for provisional damages in the final settlement. This provides the client with an option to return to the Court to seek a further sum of compensation.
The key aspects of a claim for provisional damages are that the chance of significant deterioration must be measurable. The disease or deterioration itself must be serious. Awards of provisional damages are most commonly seen in brain injury and spinal injury cases.
A Court generally cannot impose a provisional award upon a client and it is usually a matter for the client as to whether, subject to the legal advice they may be given, they wish to pursue such an award.