How is personal injury compensation calculated?
How much compensation will I get? This is a popular question asked by many clients’ at the start of their claim. It is a common misconception that compensation can be calculated accurately by using a generic online compensation calculator or making your own personal assumption about how much compensation you should get for your injuries. You will come across many websites which have calculators which claim to be able to tell you how much compensation you will receive for your injuries. These calculators however are seldom accurate and should be avoided at all costs.
What am I entitled to be compensated for?
Personal injury compensation is made up of two distinct elements:
- General damages for the actual injuries themselves
- Special damages for the financial losses that result from those injuries.
Special damages can include a claim for loss of earnings, medical treatment expenses and travel expenses.
The importance of independent medical expert evidence
The basis of how much compensation a client receives is ultimately dependent on the medical expert’s opinion. An independent medical opinion is required in order to establish the nature and extent of the injury suffered by a client, how the injury has affected a client’s activities of daily living and finally the time it will take to recover from these injuries. There will of course be injuries which may be permanent.
The process of assessing compensation
A solicitor will review medical evidence and once a final medical prognosis is established, the prospective range of compensation that a judge would award can be assessed.
An experienced solicitor will identify the relevant section of the Judicial College Guidelines which applies to a particular client’s injuries. The Judicial College Guidelines is very useful resource to determine what an appropriate level of compensation would be for a client’s injuries.
The guidelines cover injuries affecting all body areas from head injuries, injuries affecting senses, fracture and soft tissue injuries to limbs, psychological injuries and scarring as well as minor injuries which resolved within less than one month. The guidelines describe the injury and indicate the amount of general damages an injury with that description should receive.
A solicitor will also review case law which can be reasonably compared to a client’s case. For example there will be established case law where a Judge at Court has awarded an amount for a back injury where symptoms persist and resolve within 12 months of the date of the accident. A solicitor can use a similar case to support their client’s claim for damages and as a useful tool for negotiation with the Defendant’s representative.
Case law can also enable a Solicitor to be more precise with a valuation. There will be certain cases which will share core common factors with a particular client’s case. There will be cases similar to those of our clients for example where a client who has had a similar period of absence from work or similar treatment such as physiotherapy treatment or arthroscopic surgery. Shared features with traditional case law will strengthen a client’s position and can be incredibly persuasive when negotiating settlement. The Defendant’s representative is likely to negotiate settlement amicably when a claim is presented with influential case law to support a compensation valuation.
Presenting a case for financial losses
A claim for losses and expenses is commonly referred to as a claim for special damages.
This claim is presented in a schedule which lists all the losses incurred as a result of the accident.
A client must be able to prove the loss was incurred and that the loss was due to the accident.
A Solicitor will guide a client to keep a record of losses and ensure documentary evidence is retained to prove these losses. The Defendant’s representative can refuse to agree to pay for a loss where there is no documentary evidence to support a loss. A client should be wary of any legal practitioners who promise to recover losses which are not supported by documentary evidence as this can prejudice their claim and the Defendant can challenge their credibility.
An independent medical expert will also need to confirm that the loss was reasonably incurred and directly as a result of the accident. For example, a medical expert will need to confirm whether a client’s absence from work was reasonable when taking into consideration the nature and extent of the injuries sustained.
It would not reasonable to take 6 months of absence for a relatively minor injury which causes a low level of pain on a daily basis however it would be reasonable to be absent for that period where a client has suffered a serious fracture to a dominant limb.
There may be certain losses a client may not realise they can recover. For example, a client can claim for gardening and DIY expenses where they were previously able to undertake these activities but are no longer able to do so because of limitations arising from their injuries. In certain cases there a client can also recover costs for professional carers, future treatment and reduced earnings capacity. A solicitor will be able to identify key relevant issues from information provided by a client to determine which losses a client can reasonably recover as part of their special damages claim.
The methodology used to assess compensation by experienced solicitors can be invaluable for a client and will ultimately result in a client being properly compensated for their injuries. An online calculator cannot replace bespoke advice from a specialist personal injury solicitor who has experience dealing with your issue and can help maximise the compensation.