Compensation is intended to put you back into the same position you were in before the accident – as though your injury never happened. As a concept, it’s easy to grasp, but it’s something which is much more difficult to put into practice.
It essentially comes down to two questions: What can be claimed? and how much can be claimed for each ‘item’?
You can only claim for injuries and financial losses which you have suffered due to the accident. But whilst certain losses may be easy to calculate – such as losing a week’s wages because your injuries stopped you from working – other losses cannot be valued so definitely. How can you put a ‘value’ on a broken leg, for example?
Lawyers will often talk of two types of compensation:
- ‘Special Damages’ – which covers financial losses that can be conclusively calculated; and
- ‘General Damages’ – which covers compensation for losses that cannot be calculated in purely mathematical terms. Injuries are the main form of General Damages. So much so, that the term is often used as shorthand for the injury element of a claim. There are other kinds of General Damages, however. Our Ultimate Personal Injury Compensation Guide can provide more detail on these.
A personal injury claim will typically have a combination of General and Special Damages.
No amount of compensation can make up for the pain and suffering of your injury, but, for practical reasons, a valuation has to be made. In basic terms, the more you have suffered, and may suffer in future, the greater the compensation you are likely to receive for your injury. Generally, compensation paid for pain and suffering is not as high as you might think. It should be noted that ‘suffering’ can also cover any psychological symptoms you have experienced.
Over the years the law has developed methods for calculating compensation for an injury. The two main methods are:
- Consulting the Judicial College (JC) Guidelines – formerly called the Judicial Studies Board (JSB) Guidelines; and
- Comparing your injuries to previous cases (where similar injuries have been suffered)
The JC Guidelines
The JC Guidelines set out approximately what compensation should be awarded for certain types of injury. The Guidelines are updated periodically, usually to follow inflation. They provide brackets for compensation which are useful for finding an approximate value of a claim. For example, for a minor soft-tissue neck injury (such as a whiplash injury), where symptoms are moderate and a full recovery takes place within about two years, the appropriate bracket is £3,810 to £6,920.However, further consideration of your injuries is needed to narrow down the valuation.
The second method involves looking at the compensation awards judges have made in previous court hearings. There are thousands of reported cases and so it is the job of your solicitor to find cases which most closely resemble your injuries. Claimant lawyers want to rely on high values; insurance companies and their lawyers will seek to rely on the lower values of reported cases.
Both of the main methods should be used to value the pain and suffering part of your claim. Many insurers, however, rely on computer programs, rather than the law, for arriving at their compensation valuations.
There are few hard and fast rules for calculating the compensation paid for financial losses. You may be surprised at all the financial losses an accident can cause. It is easy, even for people making a claim to forget the real financial costs of their injury.
Your solicitor should investigate your financial losses thoroughly in order to properly include them in your claim. This is one of the key areas in which unqualified paralegals, or overworked claims-handlers, can do real damage to your claim. If they are not taking the time to explore your unique circumstances, some losses may be missed out. Once you have finalised your case, any missed losses cannot be claimed later on.
You should bear in mind the concept of mitigation of loss. This means that a wrongdoer should only pay for those of your losses which are reasonable and which flow from the accident. For example, if an office worker breaks his little toe in an accident and then decides never to work again, even though he could easily return to work, then it would be unfair for the wrongdoer to pay for the office worker’s lifetime of lost earnings. No court would allow such a scandalous claim.
If you are unhappy with the value of your claim, or you do not feel your legal representatives are able to deal with your claim properly, consider switching solicitors. Alternatively, if your lawyers did not include important losses and settled your claim, you may be able to make a professional negligence claim against them.
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