Provisional Damages – How can you be compensated for a future risk of injury?

Sometimes the most serious result of clinical negligence is an increased risk of further injury occurring in the future. For example, a negligently performed operation which causes very little immediate injury may result instead in a risk of catastrophic future consequences. If these future effects are inevitable or “a probability” (more likely than not to happen) compensation can be recovered as if the future injury had already occurred, ensuring that if and when the unfortunate does occur there are already funds available to assist. When the future outcome of a medical mistake may occur and is simply “a possibility” (less than 50% likely) the situation is more complicated, but there are solutions.

There are generally two ways to address these “possible” future risks –

Full and Final Settlement

Firstly, a modest increase in compensation is often offered by the Defendant to “buy out” the future risk and encourage you to accept a single payment in “full and final settlement” of the claim. In this way the total compensation received at settlement is a little higher than it would otherwise be. The downside to this is that should the worst happen you can’t go back to court to seek further compensation in respect of your new injuries meaning that you may not have access to adequate funds to adapt to the new situation.

Defendants greatly prefer to settle claims this way as it allows them to simply write a cheque, close their file and move on knowing they will never have to revisit this case again. While the initially higher compensation is obviously attractive our advice is always that this will not protect you sufficiently and you should consider the alternative, “Provisional Damages”.

Provisional Damages

An alternate approach is that in addition to the injuries suffered that can be compensated at the time of settlement you also seek a specific type of compensation called “provisional damages”. If these are awarded then at the end of the claim you receive your compensation with no increase to “buy out” any less likely future risks. The possible risks to your health as a result of the negligence and the timeframe for the risks are usually recorded in an order by the Court at the time of settlement. Should any future injury occur which is specified in the order within the appropriate time frame you are free to return to court to request further compensation appropriate to the injury.

The final decision of how you want your claim dealt with always resides with you. As specialist medical negligence solicitors Armstrong Foulkes have the knowledge and experience to be able to advise you on the benefits and consequences of any course of action, allowing you to make a fully informed decision about what will best meet you current and future needs.

Daniel Richardson – February 2015