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Provisional damages – underused?

An interesting article reminds PI practitioners of the underused solution of provisional damages, which are provided for in s32A of the Senior Courts Act 1981. In PI and clinical negligence cases, damages are paid now on the assumption that some risk event will not occur, preserving the right for the claimant to return to court for further damages in the event that it does.
 
Section 32A imposes a single test – it is for the applicant for a provisional award of damages to establish on the balance of probabilities that there is a chance that at some time in the future they will suffer some serious deterioration in their physical condition, as a result of the original negligence. If there is a risk that this is real and not fanciful, even if small and not measurable in precise percentage terms, it will bring the case within s32A.
 
The article considers some of the reasons for the underuse of this solution, including insurers and bodies such as NHS Resolution only rarely accepting an award for provisional damages during normal settlement negotiations. Claimants may also want to draw a line under litigation in addition to recovering the maximum amount available in the short term regardless of the longer-term risk.
 
The article goes on to consider some of the case law and the medical circumstances in which provisional damages have been held to be appropriate. Interestingly the article concludes that the use of provisional damages is likely to remain at a low level despite the obvious benefits, not due to any technical legal or medical concerns, but due to the fact that it is difficult for insurers and statutory bodies such as NHS Resolution to make appropriate provision for such awards in their accounts. Source: [2020] 181 Personal Injury Law Journal 2.
 

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