Interim payments: what are they (and what are they for)?

In cases involving Erb’s palsy, it is often possible to assess liability (i.e., whether the care mother and child received is so bad as to be negligent, and if so, whether that care led to harm that would otherwise have been avoided) relatively early in the child’s life.

However, it may not be possible to assess what the child’s future is likely to hold until they are older. That means that it may be impossible for the parties to assess what level of compensation the child who is affected by Erb’s palsy should receive.

Once judgement has been entered on the first part of the case, it is however possible to request a payment on account of damages. This is called an interim payment.

What is an interim payment?

Interim payments of damages are awards made at an early stage of the case, i.e. before the child’s final award for damages is determined.

Why get an interim payment?

  • to pay for ongoing expenses which the child has as a result of his or her condition. In the setting of Erb’s palsy, such expenses might include physiotherapy, hydrotherapy, aids and equipment to help overcome practical difficulties caused by the Erb’s palsy, and possibly expenses such as clothing. This list is by no means exhaustive: everyone is different, and so the facts of each case are also different. The person wanting the payment is expected to prove that these expenses exist, and that they arise from the injuries complained of.
  • early provision of prompt therapy, on a private basis, could reduce the severity of the child’s long-term disability, which is in everyone’s interests.

Other considerations

Case law makes it clear that interim payments of damages should not limit the court’s ability to make an award at trial: this means that no interim payment of damages for a particular type of loss should exceed what the court would be likely to award for it at trial.

Whilst after an admission of liability, it is quite hard for a defendant to refuse to make any interim payment at all, they might contest the amount of money that should be awarded, and argue for a lower figure. If that happens, it may be necessary to ask the court to determine what would be an appropriate figure.

In essence, interim payments are an excellent way to ensure that children with Erb’s palsy have money available so that they can receive prompt therapeutic intervention on a private basis.

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