Those who suffer with asbestos disease and go on to pursue asbestos claims have the option of deciding whether to settle their claim on a full and final basis or under the terms of a provisional damages order but what exactly are provisional damages?
Full and final awards close the door on asbestos disease sufferers being able to claim further asbestos compensation should their diagnosed asbestos related condition progress in severity over time. In contrast, provisional damages settlements allow sufferers to return to claim further asbestos compensation in certain circumstances, therefore providing a much needed safety net for the future for victims of asbestos related disease.
It is often the case in asbestos disease claims that independent medical experts will assess a sufferer and whilst noting their current level of disability, will also provide comment on the lifetime risks they face due to their asbestos exposure. For example, a person suffering with say a 20% level of respiratory disability due to pleural thickening, may face a lifetime risk of 20% of his condition deteriorating, such as to leave him with a serious deterioration in symptoms, caused by the pleural thickening. The same sufferer may also face percentage risks of developing more serious asbestos related conditions such as mesothelioma or asbestos related lung cancer in the future.
The courts’ powers to grant provisional damages are set out within section 51 of the County Court Act of 1984 and sections 32A and 34B of the Supreme Court Act of 1981. Such awards are made where there is a chance that, at some point in the future, the sufferer or injured person will, as a result of the act or omission of the paying party, develop some serious disease or suffer some deterioration in their physical or mental condition. In short, the relevant statutes allow the court to award:-
- Damages assessed on the assumption that they will not develop a disease or suffer a deterioration of their condition, and;
- Further damages, if at a future date they develop the disease or suffer deterioration.
Part 41 of the Civil Procedure Rules sets out the guidance, specialist asbestos disease solicitors follow when considering provisional damages. The accompanying practice direction to the rule sets out what a provisional damages order must contain. Importantly, in all asbestos disease claims involving provisional damages awards, we must obtain court authority to settle the claim in this manner and to formalise the agreement between the parties.
There is a need for the order to refer to the specific disease or type of deterioration which will entitle a sufferer and/or their family members in a posthumous asbestos claim to claim further asbestos compensation. The order should also refer to the amount to be paid to the sufferer under the provisional damages settlement which is known as an “immediate award” of damages. Further, there is also a need to set out the timeframe for applying for further damages within the order.
Provisional damages are always accompanied by a statement of facts setting out the basic details of the asbestos claim, along with a schedule, noting down documents which have to be preserved by the court in case there is a need for a sufferer and/or their family to return to claim further asbestos compensation.
It is important to note that the decision in relation to which settlement method will be adopted in any asbestos claim is the Claimant’s and not the Defendant’s to make. On many occasions we have encountered examples of Defendants only forwarding details of offers to settle asbestos claims on a full and final basis. This is not surprising, as Defendant insurers are keen to close the door on Claimants being able to pursue further claims for asbestos compensation in the future. On some occasions, Defendant insurers look to “buy off” Claimants by offering greater sums of compensation which if accepted would result in the asbestos action being removed from the insurer’s book of risks for the future.
In the vast majority of asbestos claims we have dealt with, Claimants prefer to settle claims on a provisional damages basis as is their right. It is often the case that the value of a potential mesothelioma claim would far exceed any increased offer forwarded by a Defendant insurer to settle on a full and final basis in say a pleural thickening claim.
In all asbestos disease claims it is vital that the sufferer is provided with detailed advice on the differences between settling their claim for asbestos compensation on a full and final basis and under the terms of a provisional damages order.
If you require assistance in pursuing an asbestos claim then please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.