You could see the injuries you have suffered as the main part of your personal injury claim. After all, it is your injuries which have the greatest effect on your life and, in most cases, lead to all of the other losses in your claim occurring – for example, you wouldn’t have lost two weeks of earnings if you had been fit and healthy enough to work.
The injury element of a claim is referred to in a number of ways. To make matters a bit more confusing, the different terms are sometimes used interchangeably. Watch out for the subtle differences between each term, however…
In this chapter, we explain what injury compensation is actually compensating you for, how injuries are proved and how injuries are valued.
When suffering an injury, your first intention will naturally be to recover from it. To undo the effects of the accident – as much as possible – almost certainly means undergoing treatment in one form or another. Even if a complete recovery may be impossible, treatment can help to manage symptoms and ease the process of adapting to a new way of life.
You can include costs for treating and managing your injuries in your personal injury claim. There are many ways such costs can be incurred. Some examples are:
- Medication and prescription costs.
- Rehabilitation and treatment costs – e.g. physiotherapy, acupuncture, cognitive behavioural therapy (CBT).
- Private hospital fees.
- The costs of equipment and other aids – e.g. crutches, wheelchairs, prosthetics.
This chapter discusses early rehabilitation, proving and valuing treatment costs and future losses.
Your income can be a major concern after suffering a personal injury. If your injuries prevent you from working, losing some or all of your earnings for a period of time can be a natural consequence.
Not everyone will suffer loss of earnings from an accident. You might be able to continue work or you might receive your usual wage despite taking time off. A lot will depend on:
- The severity of your injuries.
- The kind of work you do.
- Your employment status.
The first two are fairly self-explanatory. The more debilitating your injuries, or the more demanding your job, the more likely you are to need time off. However, your employment status plays just as important a role, and also determines how you go about proving the earnings you have lost.
This chapter discusses what can be claimed for, proving and valuing loss of earnings, future loss of earnings and also looks at your employer’s losses.
This head of damage is one which most people rarely think about when making a claim. Yet if you have suffered injuries with permanent effects, it is entirely possible for your earnings to be affected in the future.
So what does claiming for loss of earning capacity actually mean?
In essence, it means you are seeking compensation for a possible disadvantage on the open labour market which you might face in future.
This might sound a bit like a claim for future loss of earnings. There is some overlap between the two: they both aim to compensate for the accident’s effects on your future income.
However, future loss of earnings involves direct losses to your income, which are usually ongoing and which you will continue to suffer. They can often be predicted with a decent level of accuracy.
This chapter discusses claiming for loss of earning capacity, supporting a claim for loss of earning capacity and valuing a claim for loss of earning capacity.
Serious injuries can prevent you from continuing the job you held before the accident. This is bad enough from an income point-of-view, but what if your job gave you more than just a salary? If your job was something you loved, a skilled craft, or a source of satisfaction then you might be able to claim additional compensation – in recognition of losing a positive part of your life. The legal term for this head of damage is ‘loss of congenial employment’.
It is similar to a loss of amenity – part of the injury aspect of your claim. Both aim to compensate you for losing enjoyment from life rather than for a direct financial loss. Loss of congenial employment is considered to be a distinct head of damage, however.
There are likely to be direct financial losses from losing your job and these should still be claimed. They will fall under other heads of damage (such as loss of earnings
This chapter discusses proving a loss of congenial employment, valuing a loss of congenial employment and switching solicitors.
This is another head of damage which considers ‘what might have been’ had the accident not affected your working life. Instead of looking at situations where you might lose your job (like a claim for loss of earning capacity) loss of chance concerns the career opportunities that the accident may have taken from you.
These aren’t the more mathematically predictable losses of a future loss of earnings claim. Loss of chance is focused on the possible earnings from a future career path which has now been denied to you.
Young claimants, who might never have had a job before the accident, are also eligible to claim for loss of chance. If it can be shown that the accident denied them the chance of pursuing an intended career, losses may be specifically claimed for this.
However, with all loss of chance claims, the possibilities in question must go beyond guesswork, speculation, or just hope. Many people have ambitions but there is no certainty these will be fulfilled. Even if an opportunity presents itself, all the other bits of someone’s life can stop them from pursuing it.
This chapter discusses the impact of a personal injury on your career prospects, and how to prove and value a loss of chance.
Another way in which an accident might affect your working life is through your pension. Your pension could be the main provision you have for your retirement, a nest-egg to help you in your later years. Even if you are many years away from retirement age, an accident which disrupts your earnings can have an impact on the value of your pension.
Ordinarily, a pension is built up through regular payments from your earnings. This could be as voluntary payments into a private pension or money your employer sets aside from your salary. If you are an employee, money put into workplace pensions is generally matched by your employer and the government, up to certain values.
An accident which prevents you from working can easily disrupt pension contributions. Your pension payments could be stopped temporarily as your income is affected, or you might be forced to take early retirement due to your injuries.
This chapter discusses proving a loss to your pension and calculating losses to your pension.
The natural instinct, when a loved one has been injured, is to do all you can to help them get better. If your injuries restrict your ability to do normal, everyday tasks, then your friends and family are likely to be the ones to provide care and assistance.
You might think you cannot claim compensation for this. After all, you haven’t paid them anything for their help and it is natural to want to help those closest to us. The fact is, however, such help would not be needed if the accident had not occurred. If you need care and assistance because of your injuries, your carers will be providing their time and effort to help you. It is a service which has value, and their actions represent a loss on their part – a loss which can be included in your claim.
This chapter discusses care and assistance in more detail and how to prove and value a care claim.
We have already looked at how injuries can affect your daily home life. This chapter looks at some similar heads of loss. Unlike daily care and assistance however, the losses in this chapter relate directly to your home and, in general, are carried out less frequently.
Housekeeping and home maintenance losses
If you are a housewife or househusband, it could be said that your job is to maintain your home. An injury can affect this just as much as any other kind of job. Whilst you may not be paid for your role, being unable to do it due to your injuries means that you have lost the value that it brings to your home.
This chapter discusses how to prove housekeeping and home maintenance losses, valuing housekeeping and home maintenance losses, future losses and other losses.
There are two main ways in which a personal injury claim and benefits can affect each other:
- If you start claiming benefits due to your injuries, some deductions may be required from your compensation. This is to prevent you from being compensated ‘twice’ for the same loss.
- If you have been claiming benefits before the accident, receiving compensation from a personal injury claim can influence any means-tests attached to your benefits.
This chapter discusses benefits and compensation.
When you make a claim for injuries, part of that claim is for the impact the injuries have had on your enjoyment of life. As mentioned in the ‘Your Injuries’ section, this is called loss of amenity and is usually compensated as part of your injury award.
However, certain ways in which your enjoyment of life has been affected might be claimed for under a separate head of damage called ‘loss of enjoyment’.
Loss of enjoyment claims are generally made in respect of particular events which you have been looking forward to. These could be:
- A holiday.
- A wedding.
- A honeymoon.
- Potentially any event which has been booked in advance and which you cannot enjoy to its full extent because of your injuries.
This chapter discusses how to prove loss of enjoyment and valuing loss of enjoyment.
Suffering injuries in an accident can make it difficult for you to get around, reducing your independence and changing your way of life. At the same time, an accident can lead to a number of necessary journeys, such as doctors’ appointments, hospital visits, or treatment sessions. We looked at the direct losses of getting better in an earlier section of the guide, but all of those losses may mean a great deal of travelling as well. Your travel expenses can easily mount up.
This chapter looks at the different kinds of losses which can arise from these situations, from common claims like taxi fares to rarer losses like adaptations to a vehicle following a severe injury.
The circumstances of your accident claim are unique to you. You may have suffered many losses which fall neatly into the different sections of this guide, but there is always the potential for other losses besides. This section is all about those ‘other losses’.
Your legal representatives should take the time to explore your losses with you, including any which may be less common. For various reasons, it may not be possible to include some of them in your claim, but it is always worth investigating your situation fully. If you do not feel your legal representatives are approaching your claim in this way, remember that you are always entitled to switch solicitors.
This chapter discusses miscellaneous expenses and other losses to consider.
You are only entitled to compensation when you have successfully established your claim. As mentioned in the introduction to this guide, this means proving all elements of your claim – liability, causation, and quantum – on the balance of probabilities. For more straightforward claims, a Defendant may admit liability and causation, leaving only the extent and value of your losses to be proved.
When a personal injury claim is successful, compensation is normally paid as a one-off lump sum at the end – a ‘full and final’ settlement. This might be after a court hearing – where judgement has been made – or it could be after an offer to settle your claim has been accepted.
But this is not the only time when compensation might be paid. There are some situations where you might receive payments at other times. These are explored in this section.
This chapter discusses interim payments, provisional damages and periodical payments.
Interest can be awarded on personal injury compensation. This is not technically part of the compensation itself – it is more a recognition of the time where you have been kept from money which is rightfully yours.
However, you can only claim interest on your compensation if your case becomes involved in court proceedings and the claim is served.
If you settle your claim before any court proceedings are served, you cannot claim interest. Even if your case goes to court, the court has no power to award interest on any sums you have already recovered. This is one of the reasons why interim payments can be useful for the Defendant.
This chapter discusses damages, special damages and interest after a judgement.
Compensation can seem completely inadequate when a loved one has been killed in an accident. It is a loss which no amount of money can undo. But if you depended on your loved one for your livelihood, it is only right that financial worries should not be added to your distress.
Similarly, if your loved one was pursuing a claim for a personal injury they had suffered, their claim may be continued for the benefit of the people who will inherit it from them.
There are two broad categories of personal injury claim after a death:
- Claims brought on behalf of the deceased’s estate.
- Claims brought by deceased’s dependants, often called dependency claims.
In this chapter, we’ll discuss claiming on behalf of the deceased’s estate, dependency claims and how to calculate for claiming for a loss of life expectancy.
Securing compensation is rightly seen as a victory. You may have overcome many obstacles to do so, and endured a process which can be difficult and disheartening at times. When you have received your compensation, it is a chance to move on with your life and put the accident behind you.
However, a sudden, and potentially large, influx of money may present its own challenges. After all, it is not a bonus or a windfall. It is intended to compensate you for the accident and return you to the financial position you would have been in had the accident never occurred. For very severe injuries, the compensation may have to act as your income for life.
In this chapter we’ll discuss trusts and claiming for the cost of financial advice.
This term is used throughout this guide to refer to the wrong you have suffered. It is used purely for ease of reference and does not imply that no one was at fault, or that the other party’s actions were not intentional.
If someone dies without a valid will, or without valid Executors, the people who manage and look after that person’s Estate are called administrators. Administrators’ duties include collecting together all of the Deceased’s property, selling assets, and paying the Estate’s debts.
Balance of Probabilities
This is a Standard of Proof. It is the required standard in personal injury claims (and other civil cases). In practice, it means that you must prove something as more likely to have happened than not. In your claim you must prove any facts upon which you rely on the balance of probabilities.
The question of how harm or loss was caused. For an injury claim, you must prove that the injuries you suffered were a consequence of the Accident. Even if Liability for an accident is accepted by the party you are claiming from, you then have to prove that the Accident caused your injuries.
This is a general legal term to indicate the party who is making the claim. You will be referred to as the Claimant if you are making a personal injury claim.
A CRU certificate is issued by the Compensation Recovery Unit (CRU), part of the Department of Work and Pensions. The Defendant applies to the CRU to ascertain whether you have received any benefits which are recoverable and how much they need to withhold from your compensation. The CRU certificate confirms these details. If there are no recoverable benefits the certificate will read ‘Nil’.
You have probably come across this particular term. It is often used in legal documents to refer to someone who has died. For example, ‘we enclose a copy of the Deceased’s will’.
In general, this is a legal term used to indicate the party who is having a claim made against them. However, in this guide, the term is used a bit more loosely, referring to both the target of your claim and whoever will be compensating you for it in one. In reality, these might be different people. For example, with most road traffic accidents the party you are claiming against (the other driver) will not be the same party who will end up paying your compensation (their insurance company). Technically, in that situation, the Defendant would be the other driver; their insurance company just foots the bill.
A dependant is someone who can make a dependency claim. In the context of a fatal accident, a dependant can claim against someone who is liable for the death of a person upon whom they depended. The dependency could be financial or for some kind of service.
In general terms, a person’s estate is formed from everything they own at the time of their death. It includes their: money, property, assets, personal belongings and debts.
Someone appointed in a valid will to manage and look after a person’s Estate is called an executor. Executors’ duties include collecting together all of the Deceased’s property, selling assets, and paying the Estate’s debts.
Full and Final Settlement
If a settlement is termed ‘full and final’ it means that, once the settlement is accepted, you will be unable to claim anything more in relation to the accident in question.
This is a term which is frequently used as short-hand for ‘compensation for your injuries’. However, technically it means damages or losses which are presumed to result from the wrong for which you are claiming. General damages can include both Pecuniary Loss (like future loss of earnings) and Non-Pecuniary Loss (like injuries).
Head of Damage or Head of Loss
These terms are used interchangeably to refer to the different ‘categories’ of loss you might be claiming for. For example, loss of earnings would be considered as one head of damage, ‘physiotherapy treatment’ would be another.
The question of who is legally responsible for the Accident. You could view it as who is to blame, but be aware that blame does not always mean liability. For example, a cleaner who leaves a puddle of water, which causes someone to slips, might be blameworthy, but their employer could also be liable for the incident.
Mitigation of Losses
Mitigation is doing all you can reasonably do to ensure that the losses you suffer (as a result of an accident) are kept to a minimum. This shouldn’t be seen as a way of ‘punishing’ the victim. Genuine, proven losses suffered through an accident which wasn’t their fault should be compensated. Instead, mitigation prevents an injury claim from being seen as a ‘blank cheque’.
Negligence, in the legal sense, occurs in situations where someone owes a duty to take care in relation to someone else. If they breach this duty and this causes harm or damage to that other party, they have acted negligently. This can be through positive action or through failing to take action. An example would be an employer. They have a duty to their employees to safeguard their health as far as reasonably possible. If they provide employees with substandard safety equipment and an employee is harmed as a result, they will be liable to their employee for negligence.
This refers to a loss which cannot be calculated to a definite figure. For example, injuries are non-pecuniary losses as there is always going to be some element of judgment required when valuing them. There is no mathematical formula to say how much a broken arm is ‘worth’.
Pain, Suffering, and Loss of Amenity (PSLA)
This refers to the injury element of a claim. It states exactly what is being claimed for – namely: the pain, the suffering, and the loss of enjoyment from your life which the injury has caused.
A pecuniary loss is one which is possible to calculate definitely – such as how much has been spent on medication due to an accident.
This means ‘amount’ – the amount of damage or harm you have suffered. Or, to look at it another way, the amount of compensation you are claiming. You must prove the extent of your losses and injuries in order to prove the quantum of your injury claim.
Schedule of Loss
This is a document which details all of the losses you wish to claim in your case. The schedule should also set out the value of your losses and show any calculations used to arrive at these figures. It is important that the schedule is as accurate as possible. The court and the Defendant will treat it as the definitive statement of everything included in your claim.
Service or Serving a Claim
Service is the term used when documents are formally brought to another party’s attention. When a claim is served, it generally means sending certain legal documents and supporting evidence over to the Defendant – or asking the court to do this for you. Service is a vital part of starting court proceedings.
Standard of Proof
A standard of proof is the extent to which you have to prove something for it to be accepted by a court. For example, in your claim you may have to prove that the Defendant drove into your vehicle, or that you paid £7.00 for a parking ticket. The standard of proof for establishing both of these ‘facts’ is the Balance of Probabilities.
Statutory Sick Pay (SSP)
This is a minimum level of sick pay, set by statute, which employers must pay to eligible employees. SSP is set currently at £89.35 per week.
A trust is a legal form of holding money or property. The most basic kind of trust involves a ‘settlor’ (the person creating the trust) giving assets to a ‘trustee’ (the person who holds and manages the assets) to look after for a ‘beneficiary’ (the person who is completely entitled to the assets and any income the assets may generate).
Trusts are a huge legal topic with many different forms and complications. In general however, different kinds of trust give the trustees and beneficiaries different powers and rights.