What Are “Provisional Damages” And When Should They Be Awarded?

In most personal injury claims, settlement is on a full and final basis. That means that once a case has concluded, a claimant cannot at a later stage reopen their case for additional compensation. The exception is an award for provisional damages which should be considered where a claimant’s condition has the potential to deteriorate, and their prognosis is uncertain.

If there is a risk that a claimant’s condition resulting from the accident might significantly deteriorate at some point, it would be unfair on the claimant, if following settlement, their health got worse, and they were left undercompensated for their injuries. Similarly, it would be unfair to the defendant if compensation were awarded for a worsening condition that never materialised.

In these circumstances, the Court has the power to award provisional damages. The two conditions to be satisfied are that:

1. There is a chance of the claimant developing the disease or deterioration. The chance must be “measurable rather than fanciful”
2. The disease or deterioration, if it does materialise, would be sufficiently serious.

There is no automatic right to a provisional damages award. In all cases, the Court must decide whether it should exercise its discretion to make the award.

Recent caselaw

The recent case of Mathieu v (1) Hinds (2) Aviva plc shows an application of an award for provisional damages in play.

Here, the claimant had suffered a serious brain injury in an accident but fortunately made a good recovery. He made a claim for provisional damages for both the increased risk of epilepsy and the increased risk of dementia because of his brain injury.

Increased risk of epilepsy

Experts for both the claimant and defendant agreed that the claimant was at an increased risk of developing epilepsy. The defendant’s expert placed this at 5-7% and the claimant’s expert at 8%.

The Judge concluded that the risk was measurable and, should the condition arise, it would be sufficiently serious for a “once and for all” damages award to be inadequate. She therefore awarded provisional damages for the claimant’s lifetime risk of developing epilepsy.

Increased risk of dementia

However, no award was made for the risk of dementia. The claimant’s expert’s view was that there was growing evidence of a risk of developing dementia following a single traumatic brain injury. The defendant’s expert agreed that there was a large body of research suggesting a link between brain injury and dementia but described the literature as “a mess.”

Both experts agreed that the current research could be criticised and that other potential factors independent of brain injury can predict the onset of dementia: advancing age, sex, obesity, diabetes, hypertension, and lifestyle factors for example.

The Judge found that the claimant was required to prove there was more than a fanciful chance that the brain injury would cause him dementia in the future. On the current state of the medical research, the claimant could not prove that on balance, a single traumatic brain injury could lead to him developing dementia. The claim for provisional damages for dementia was therefore not allowed.

I am currently in the process of negotiating settlement in a claim for provisional damages for the increased risk of epilepsy, which is a generally well-established head of loss in brain injury claims. In time, perhaps, medical research will advance to show that a single brain injury is also on likely to increase the risk of developing dementia. In those circumstances, claims like the one above may be fully successful. Only time will tell.