Valuing General Damages
Posted on 16th February 2018
Thousands of people have suffered a personal injury as a direct result of an accident due to no fault of their own. A claim can be made against the negligent party for monetary compensation; this compensation exists to put claimants back in the position they would have been, had their accident not taken place.
Claimants are entitled to be compensated for Pain and Suffering and ‘Loss of Amenity’ (‘PSLA’), commonly known as General Damages. The pain and suffering element of the award aims to compensate claimants for physical and psychological symptoms. The loss of amenity compensates claimants for loss of enjoyment of life or a reduction in ability to perform everyday tasks.
In addition to general damages, claimants are entitled to be awarded compensation for financial losses resulting from the accident, this head of loss is known as Special Damages. When claiming Special Damages, such as loss of earning, travel expenses, medical expenses etc… claimants have to provide sufficient evidence in order to support their losses. Without any documentary evidence, the losses they have incurred are unlikely to be considered by the third party insurers.
Within this article, I will only focus on explaining the steps to gaining General Damages.
When liability is not an issue or when the claimant’s solicitor is satisfied their claim has reasonable prospects of success, a medical appointment will be arranged for the claimant to be examined by a medico-legal expert. The discipline of the expert will depend on the nature of the injury the claimant has sustained. For instance if the claimant sustained a fracture to their right wrist then, a consultant orthopaedic surgeon will be instructed. It is important to note that in the majority of cases, the expert will have access and will review the entirety of the claimant’s medical records.
When attending their medical appointment, claimants should remember that the expert is a medico-legal expert and not a treating doctor, the expert has been instructed solely as an independent consultant to prepare a medical report.
A few weeks following the medical appointment, the solicitor will receive the claimant’s medical report. The solicitor will review the report to make sure it is broadly correct and to identify the relevant issues raised within the report. The report will be sent to the claimant and it is for the claimant to ensure their report is factually accurate. The medical report will always have to be approved by the claimant prior to being disclosed to the third party insurers.
One of the most important parts of the medical report is the prognosis. The prognosis is the expert’s estimate of the length of time it will take for a claimant to fully recover from their injury. It is only an estimate thus, if a claimant does not recover in line with the expert’s prognosis then a re-examination is usually necessary and advised.
The prognosis is a very important element as it will determine the extent of compensation a claimant is likely to receive. Some claimants wish to wait until the end of the expert’s prognosis to make sure they are fully recovered prior to starting the negotiation process and settling their claim. However, some do not and wish to settle as soon as possible. If a claimant chooses the latter, it is important to bear in mind that once an offer has been agreed, it is on a full and final basis. This means that if the claimant accepts an offer but then does not recover in line with the prognosis, then they are not allowed to come back to their solicitor and ask for more compensation.
Having to put a monetary value on someone’s pain and injury is not a walk in the park. When assessing general damages, solicitors will first of all rely on the medical evidence prepared by medico-legal expert. The solicitor will then refer to the Judicial College Guidelines which set out financial brackets for common types of injury. These brackets have been prepared by a number of barristers and judges and the figures are published annually. Precedent Case Law where claimants have suffered similar injuries are also considered when assessing general damages.
The level of compensation a claimant receives depends on numerous factors and is different for every single claimant. When valuing general damages, consideration must be given to the following:
- nature and severity of the claimant’s injury
- the age of the claimant, what their life expectancy is
- the amount of time that it takes for the claimant to heal completely
- how active the claimant was prior to the accident
- whether the claimant had any pre-existing symptoms
- whether the accident accelerated a pre-existing condition
- the claimant’s ability to continue working
- the degree of dependence on others
- whether the claimant is also having side effects such as psychological symptoms and so on…
Taking all the above into consideration and once a prognosis has been given, the solicitor should then be able to provide an approximate estimate value of the claim to the claimant that a judge would award if the matter was to be proceed to court.
Assessing your valuation
I sometimes have clients telling me: ‘why is your valuation so low? I researched online and should be getting x amount of money’.
Many websites offering settlement calculators supposedly provide an estimate to claimants of how much they are likely to get for their injury. My advice to claimants is to stay away from these calculators as they are inaccurate and misleading. These calculators are generic in fact, the accident circumstances of every accident are different, and every claimant and their injuries are different. A claimant who may have been injured in a similar way as another may experience different levels of pain and may take longer to recover. In addition, many factors need to be taken into account when assessing general damages and medical evidence is absolutely necessary. These calculators are therefore very likely to provide unrealistic expectations to claimants who may think their claim is worth more than it really is.