Options when settling non-fatal medical conditions cases - the availability of provisional damages
22/02/2011
By Jonathan Herbert, Legal Executive Associate in Chemical Poisoning & Asbestos.
Anyone who has been exposed to asbestos carries the risk of developing mesothelioma. In this article we discuss the options available and highlight what factors should be considered.
What is a provisional award?
A provisional award enables a claimant to seek additional damages if certain diseases or deteriorations develop in the future. The trade off is that the initial award will be lower.
Legislation enables claimants to return to court and claim further damages at a future date if they develop the relevant disease or deterioration specified in the first settlement.
When is a provisional award appropriate?
Non life-threatening asbestos injuries are suited to provisional awards and are specifically catered for in the Judicial Studies Board Guidelines. The guidelines assist in assessing the claimant’s award for pain, suffering and loss of amenity.
Part 41 of the Civil Procedure Rules deals with damages. The supplementing Practice Direction 41A deals specifically with provisional damages. The order will specify the disease(s) or type(s) of deterioration that are assumed will not occur and will entitle the claimant to further damages if it (or they) do occur at a future date. The order will go on to give an award of immediate damages and specify the period(s) within which an application for further damages may be made in respect of each disease or type of deterioration.
A monetary award is the only way that the courts can compensate a claimant. As we all know, a person with mesothelioma will have a variety of other needs as the condition takes hold. Nursing care would be a certainty and certain equipment will be required. What must also be considered is the inevitability of death and the potential for the statutory award of bereavement damages (in appropriate cases).
Factors to consider
The difference between a provisional settlement in a non-fatal asbestos injury case and a mesothelioma claim could easily run into six figures.
In no particular order, a client when weighing up their options should consider his or her:
- age
- health
- wealth
- future plans
- type of asbestos exposed to
- intensity of exposure to asbestos.
Every case is case different. The decision of how to settle a case must be made by the client. All we can do is make sure that every client understands what he or she needs to take into account and where necessary indicate a recommendation.