Provisional damages should be available in personal injury cases in New South Wales.

A provisional damages regime should generally mirror the provisions of the English legislation and the Dust Diseases Tribunal Act 1989 (NSW).

Provisional damages should extend to all instances of personal injury including cases where the Motor Accidents Act or Workers Compensation Act govern the assessment of damages.

Provisional damages should also be available in the District Court.

One application for further damages should be permitted subject to the judge at that application granting a further right to the plaintiff to return on the occurrence of further specified deterioration arising from the same injury.

The court may specify the period within which a plaintiff may apply under an award of provisional damages.

Where no period is set by the court or where the plaintiff dies before the end of the period set by the court, the plaintiff’s right to apply under an award of provisional damages terminates on the plaintiff’s death.

The Law Reform (Miscellaneous Provisions) Act 1944 should be amended to make it clear that an award of provisional damages is excluded from the restrictions on recoverable heads of damage under s 2(2)(a)(ii) of the Act.

An award of provisional damages should not preclude a dependant’s claim under the Compensation to Relatives Act 1897 (NSW) for death attributable to the specified disease or deterioration. The assessment of damages in such a claim should take into account, as the justice of the case may require, any pecuniary loss already awarded to the deceased in respect of the period after his or her death.