The Litigation Series – Week 14: Quantifying Claims – Schedules And Counter Schedules Of Loss
In week 5 of the Litigation Series we explained how damages are calculated (quantified) in a medical negligence claim, including both general and special damages. The purpose of compensation is to put the Claimant back to the position that they would have been in, had the negligence not occurred. In this blog we look in more detail at the formal documents used to support the amount of compensation (the Schedule/Counter Schedule of Loss)
1. What is a Schedule of Loss?
A Schedule of Loss is a document that details out all the financial losses that have been suffered by the Claimant as a result of an injury/illness suffered. The purpose of the schedule is to persuade the Defendant and the Judge of the value of the claim. It typically includes loss of earnings, treatment costs, care and assistance and travelling expenses. The schedule can comprise of past losses and future losses. It also contains a narrative of the claim that the Claimant is presenting in order to support all the financial losses claimed in the Schedule. The narrative not only sets out the claim for the Defendant but also for the Trial Judge who will come to the case afresh and ought to follow the claim from the Schedule.
2. When do we need to serve the Schedule of Loss?
In general we must serve the Claim Form together with the Schedule of Loss when we’re serving proceedings on the Defendant. This would be 4 months following the date of the sealed Claim Form. Together with the Claim Form, we need to also serve our Particulars of Claim, medical evidence on condition and prognosis, and the Schedule of Loss.
Further, if a Claimant wishes to start settlement negotiation, in the event liability has been admitted, it is then advisable for a Schedule of Loss to be prepared, drafted, and served on the Defendant, together with a Part 36 offer on without prejudice basis.
3. What does the Schedule of Loss include?
In order for a Claimant to claim general and special damages for the purposes of recovery from the Defendant, a Schedule of Loss needs to be carefully prepared and drafted to include a detailed quantification of both general and special damages, and serve the same on the Defendant for negotiation purposes.
The Schedule of Loss can therefore include the following:
a) A section on “General damages”
These type of damages are awarded for pain, suffering and loss of amenity as a result of the negligence in question. The compensation will only be awarded for injuries that have been caused by the negligence itself. The value of the award will be based on medical expert evidence with reference to the Judicial College Guidelines and relevant case law. The Judicial College Guidelines categorise injuries into different body parts and provide an indication of the likely value of an award.
A narrative outlining the Claimant’s factual circumstances, negligent treatment, and injuries sustained as a result of the negligent treatment, will be included in the Schedule of Loss. We would then put ‘TBC’ (to be confirmed) against the value of the general damages. The reason for this is that we do not want to give away our assessment of the potential value of these damages to the Defendant at this very early stage of the litigation process. This will allow ‘room’ for settlement negotiation and would mean that the best possible outcome is achieved for our client if we keep the value as ‘TBC’ against general damages.
b) A section on “Special damages”
A Claimant is entitled to claim all reasonable past and future losses suffered as a result of the negligence in question.
This section will therefore include a detailed breakdown of the Claimant’s financial expenses and losses that have already been incurred as a result of the negligence, together with the Claimant’s financial expenses and losses that will be incurred in the future as a result of the negligent treatment. The schedule will itemise and justify each head of claim and explain in detail how the amounts have been calculated.
The following heads of claim can be included in the Schedule:
- Loss of Earnings – this can also include loss of employment benefits; loss of holiday; loss of overtime.
- Loss of Pension – where there has been a loss of earnings suffered, there would usually also be a loss of pension.
- Care and Assistance – this include professional care or care provided on gratuitous basis by family, and friends.
- Aids and Equipment – this head of claim would usually apply where one has suffered severe injuries, such as, brain or spinal injuries. the Claimant can also claim the costs of aids and equipment that have been purchased in the past as a result of the negligence, together with the cost of aids and equipment that are going to be purchased in the future as a result of the negligent treatment.
- Accommodation and/or adaption– this head of claim again would usually apply where one has suffered severe injuries, such as, brain or spinal injuries. Other heads of claim that would apply to brain/spinal injuries would include – Case Management; Deputyship; Treatment and Therapies; Holidays.
- Travel expenses
When we are calculating past losses, we advise our clients to retain at the outset of their claim all documentation of any invoices/receipts that serve as evidence of the expenses that they have incurred as a result of the negligence in question. Without such evidence, it is highly likely that the Defendant may challenge the expenses and not agree to pay the same. We will calculate and give a figure against all past losses.
When we are calculating future losses, such losses may be ongoing as a result of the type of injury. Therefore these depend on the type of injury in question. For complex cases where accommodation / adaption is required, we usually obtain expert evidence to support this head of loss. In the event that we do not have the relevant expert evidence to support a particular head of loss, when preparing the Schedule of Loss, then we would usually claim the head of loss, and put ‘TBC’ against it until expert evidence is obtained.
4. Fatal Claims
The Schedule of Loss might look slightly different if the claim does not involve a living Claimant, but one who had passed away as a result of the negligence/ negligent treatment. As usual there will be a detailed narrative of the claim in order to introduce the case to the Defendant and/or Trial Judge.
In week 5 of the Litigation Series we explained in detail what can be claimed in a fatal claim, and therefore what can be included as heads of loss in a Schedule of Loss.
5. Statement of Truth and the significance of it
A Statement of Truth is a statement that is included in any statement of case, expert’s reports, witness statements and various other documents that confirm that the contents of the document are true.
There are different forms of Statement of Truth and the wording of the same depends on the document that contains it. In the case of a Schedule of Loss the wording will be as follows:
“I believe that the facts stated in this Schedule of Loss are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
The Schedule of Loss should be signed by the Claimant. It is very important that the Claimant understands the case as set out in the Schedule of Loss because, as the Statement of Truth makes clear, it is a Contempt of Court to verify a court document without an honest belief in its truth.
There are potential criminal sanctions for making a false statement. When signing the statement of truth, the Claimant must understand truly what the contents of the document means and accordingly sign the statement of truth, knowing and understanding the contents of the document. The narrative plays a big part here because it gives the Claimant an overview of the claim and the purpose of the Schedule of Loss. It is crucial for lawyers to draft the Schedule of Loss (especially the narrative) in such a way that the facts and calculations to which the Claimant is certifying are very clear.
6. What is a Counter Schedule of Loss?
A Defendant may produce a Counter Schedule of Loss, arguing for a different valuation of the claim. The format of the Counter Schedule is similar to the one of the Schedule of Loss, it just gives a different valuation of the claim with its aim being to persuade the Trial Judge to prefer the Defendant’s approach to quantifying the claim.
The Counter Schedule of Loss will be drafted in a way that ‘responds’ to the Schedule of Loss that had already been served, and often the Defendant will rely on expert evidence to support their assessment of the valuation.
If you have suffered injuries due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0808 250 1023 or request a call back online.