How Do You Explain The Level Of Pain When Making A Claim?

The Subjective Nature of Pain in Personal Injury Claims

On the face of it, injuries may appear easy to quantify. However, where two people sustain identical injuries, they can have vastly different experiences as a result. For instance, a broken ankle resulting in chronic pain can affect a marathon-runner differently to someone who does not participate in running at all. Visible scarring may affect the self-confidence of someone in a customer-facing career more than someone with a different occupation.

Pain and its consequences are much more than what meets the eye, or what appears on a medical scan. Where a diagnosis is objective and factual, pain and the lived experience of an injured person are both highly subjective. So, how can this be taken into account when making a personal injury claim?

How Compensation is Assessed, and where Pain comes into this:

Compensation cannot reverse the injury or the pain it causes but is intended to compensate for your losses resulting from it. Compensation also does not aim to punish the defendant, but aims to put you, as far as money reasonably can, in the position you would be in had the incident not occurred. In doing so, it considers the financial and non-financial losses suffered, and the non-financial loss is where subjective experience becomes especially important. Financial losses can be reflected in payslips, travel expenses, and other evidence of money spent as a result of the incident. Non-financial losses are much more personal.

Judicial College Guidelines

To value injuries (also known as General Damages), the Judicial College Guidelines and case law are commonly used to determine the appropriate level of compensation for pain, suffering, and loss of amenity resulting from the injuries. This is where your medical records and medico-legal expert reports become necessary, as they describe the extent and type of injury sustained. However, medical evidence cannot always reflect what it is like to live with an injury, and cannot fully represent the subjective experience of pain, suffering, and loss of amenity. This is where your own experience of your injury and its consequences are important in assessing damages.

Medico legal reports

When presenting a personal injury claim to the Defendant, it is often necessary to obtain a report/s from independent medico legal experts. These experts are not treating doctors but rather have a duty to the court to set out what injuries have been sustained as a result of the accident, and to comment on causation and provide an opinion and prognosis and recommendations if necessary for further treatment. During your appointment with the expert, it is your opportunity to explain to the expert how the injuries have affected you on a day to day basis, how it has impacted your work and / or ability to carry out various tasks.

Special Damages

Special damages (also known as financial losses) can also be awarded, and they have a broader focus than the injury itself. Special damages aim to assess the losses and expenses incurred from being unable to work, having to travel more often for medical treatment, and value of assistance and care provided to the claimant by their friends and relatives. These are also financial in nature.

Awarding damages to reflect your experience and loss requires a differentiation between an injury and the pain it causes. Pain is an experience, not just a symptom, and it will affect everyone differently depending on its duration, intensity, effect on everyday life, as well as many other factors. Pain is inherently subjective, but this does not mean it is not important when assessing damages.

During a personal injury claim, you may have to discuss details of the injury and how it has affected you multiple times. While this may feel repetitive, this enables your solicitor or case worker to better understand the subjective elements of your claim which are not reflected by medical scans and employment records. This enables them to understand you and what you have lost, and to develop an understanding of your claim beyond what is shown on an x-ray or hospital attendance record. It also provides an understanding of how your injuries and their consequences have developed, and how your recovery is progressing, as opposed to only understanding you and your claim at one point in time.

How can you explain the level of pain when making a claim?

You can use evidence to demonstrate the subjective and personal effect of your injury/injuries. Where appointments, holidays, and other commitments have been cancelled or missed due to the injury, this is useful evidence in showing how your life has been disrupted by the injury. The inability to do things you previously enjoyed and had been looking forward to doing is important.

You can detail your symptoms, and why they have affected you in the way that they have. You can detail how your treatment has required you to change aspects of your life. You can discuss how your hobbies and activities have been affected by the injury. You will have a deep understanding of how this has affected you, so do not be afraid to communicate this with your solicitor or case worker. While the experience itself is deeply personal, this does not mean that someone else would not understand it. Show what you have lost, not just what your injury is.

Conclusion

No two people will be affected in the same way by an injury, which is why communicating your own experience is important. Evidence demonstrating a specific financial loss is extremely useful in personal injury claims, but so is your personal experience. Compensation cannot reverse pain or the effects of an injury, but it can reflect what you have lost. Understanding you and what you have experienced as a result of your injury is important in determining an appropriate level of compensation.

If you’ve suffered an injury and want legal advice on how your personal experience and pain may affect your claim, please contact our specialist Personal Injury team on 0330 822 3451 to discuss your case, or request a callback.