Damages For Future Losses And Expenses In Catastrophic Injury Claims
Press and media reports of compensation awards in high-value claims tend to report the headline figure awarded to a catastrophically-injured Claimant, tending to give the impression of something akin to a lottery win. ‘Cyclist wins payout of £5.5m after being hit by car’ tells one very small part of the story, and – when only the bare details of the injuries are reported – ‘brain injury’ or ‘severe orthopaedic injuries’ – can often make it difficult for us to explain to clients that simply because they have suffered similar injuries, their claim may not necessarily be worth the same.
In the vast majority of cases the larger part of these claims is made up of the claim for future losses and expenses.
The principle guiding the award of damages in every personal injury claim is to put the injured person into the position they would have been had the accident not occurred. Impossible in respect of the physical injuries, but much more achievable (although far from an exact science) when it comes to financial loss and expense.
Factors to take into account
This will of course vary hugely from person to person, depending on their age and circumstances just before the accident. It will also often depend on the strength of the evidence of what the injured person’s intentions were.
Let’s take as an example a man aged 50 who suffers a life-changing injury in which they suffer a below-knee amputation. They work in a semi-skilled manual job, full-time, earning £20,000 a year after tax. We obtain expert evidence that says he is very unlikely to work again. He says he planned to work until he was 67. Let’s assume the case comes to Court 2 years after his accident and the Court accepts he will not work again and that he would have worked to 67 (and it is worth pointing out the Defendants will invariably try to argue otherwise…). In simplistic terms, his loss of earnings to date would be £40,000, and his future loss 15 (years) x 20,000 – £300,000. (This is a bit of an oversimplification of how the Court calculates the loss but that is another subject entirely).
The same principle applies to his need for prosthetics. Assuming he needs to pay £20,000 for prosthetic limbs initially, and they need replacing every 5 years, the Court has to decide for how long he is likely to live (there is ample scientific evidence to help Judges and lawyers in this area), and make the appropriate award. In this case, his life expectancy has not been affected by the accident so the Court says he will live another 37 or so years. Within that time he will need to replace the prosthetics 7 times, giving a claim of £140,000.
This principle can – and is – applied to every area of his future needs, including having to pay other people to assist him, adapting his living circumstances, travel arrangements etc. It can be see that these figures quickly add up and easily dwarf the award he is likely to receive purely for the injuries themselves, which, is likely to be between £92,000 and £125,000.
Each case is different
In the case of a 30 year old who suffers the same injury, but is earning £10,000 more at the time of the accident, the differences over a lifetime are significant. The loss of earnings claim would be closer to £1.1m (37 years x 30,000) and that does not even begin to take into account any promotion or increases in pay. The prosthetics claim might be more like £1.1m as well.
The point here is that each person is different, as are there circumstances at the time of the accident and their needs as a result of it. Figures in their millions are not ‘windfalls’ or the equivalent of winning the lottery for seriously-injured clients – they represent the fair and reasonable cost of making sure they are compensated for the money they would have earned over their lifetime and to ensure they are able to pay for the treatment, care and other costs, none of which would have been necessary but for the negligence of the Defendant.