No Win, No FeeWhen pursuing a personal injury compensation claim, you will need to calculate general damages and special damages. It is very important to gather as much evidence as possible, medical opinion and use these to calculate individual elements known as general and special damages.
We will now take a look at the way in which these two different types of compensation are structured. What is relevant, what is irrelevant and some of the face value confusion which becomes a little clearer the deeper you dig.
Different types of damages
If you look at either general damages or special damages in isolation, this can give you an incorrect and incomplete impression of your personal injury claim. It is important to be aware of both types of damages and how they may specifically affect your compensation claim.
General damages
When looking at general damages you will see them best described as:-
Compensation for pain, suffering and the detrimental effect on quality-of-life
Many people find it confusing that those who die relatively quickly after an accident will generally receive little in the way of general damages. Those who have a serious accident which has long-term repercussions for their quality-of-life, pain and suffering, will often receive significant general damages. This is why special damages should also be considered at the same time as you look towards general damages. It is only when you put the two together that you get a fair understanding of the whole process.
How do courts calculate general damages?
When looking at general damages, the courts/claims companies tend to refer compensation guidelines from the Judicial College. These are comprehensive guidelines created using historic accidents, claims and compensation. There is obviously a degree of discretion, but the existence of these guidelines means those with similar injuries should receive similar general damages. As we touched on above, this compensation calculation is based upon pain and suffering over a period of time. The quicker the victim recovers the less general damages they tend to receive. However, we also need to take into account the impact on the individual’s life.
Unnecessary pain and suffering
It is important to realise that the court will take into account long-term pain and suffering which can lead to significant general damages payments. There are many injuries received as a consequence of negligence, which can impact a victim’s life indefinitely. It is also important to mention that physical and mental pain/suffering is treated equally. This is something which has become more prominent in recent years, as the medical profession continue to recognise numerous mental illnesses.
Impact on the victim’s life
Many people tend to consider general damages as compensation for pain and suffering. However, there is also an element of compensation for the impact on the individual’s life. The following list will give you an idea of some issues taken into consideration:-
- End of a promising career
- Impact on a mother’s ability to interact with her children
- Inability to socialise
- Restricted participation in son’s/daughter’s adult life
In reality, the pain and suffering element of general damages compensation is predominantly physical but can be mental. It could be argued that the impact on an individual’s life can be more about mental challenges than physical. We can only imagine the anguish of a father unable to walk their daughter down the aisle on their wedding day.
Special damages
On occasion you will see special damages split into two different groupings:-
- Special damages for past losses
Compensation for upfront expenses related to injuries received
- Special damages for future losses
Compensation for the loss of earnings in the future, or the loss of earnings potential, and future care
As you can see, the definition of special damages relates to expenses and loss of earnings/earnings potential. It will also incorporate medical treatment required going forward which could for some people include full-time care. In many cases, special damages can dwarf the level of general damages awarded, especially where those injured are relatively young. We will take a look at these two separate elements of special damages.
How do the courts calculate special damages for past losses?
As the description suggests, special damages for past losses are in effect expenses incurred between the injury and the award of compensation. There are occasions, where the initial expenses may be relatively large, when an interim payment/s can be made. This tends to be in situations where the defendant has accepted liability and both parties are negotiating the final settlement. The courts tend to be very sympathetic when it comes to such applications. After all, it is unfair for defendants to face financial distress through no fault of their own.
Travel expenses
Where there are physical injuries, or in some cases mental injuries, the victim may incur additional travel costs. There may be travel expenses to and from doctors, hospitals and specialists. If an expense is incurred as a result of the accident, and resulting injuries, then it can be reclaimed from the defendant.
Medical treatment
On occasion, some victims may require specialist medical treatment which can be expensive. As there is always a degree of risk, it is unlikely that a specialist would delay invoicing the individual until “compensation had been agreed”. Therefore the defendant may need to pay for non-NHS medical treatment upfront.
Adaptions to the home
Whether a short-term issue, or long-term prognosis, it is not uncommon for victims to have restricted movement in their home. This may mean sleeping downstairs until their health and mobility has improved. As a consequence, there may be potentially significant costs in adapting a home. These expenses can be reclaimed in full if negligence is proven, and will form part of any claim.
Cost of additional assistance
Whether the victim requires additional assistance themselves, or they may require extended childcare facilities, again, these are costs which will likely be reimbursed. In years gone by, some defendants would prolong settlement of a valid claim, if they became aware that the victim was struggling financially. This often prompted them to take the first compensation offer, but this was before the widespread use of interim payment requests.
How do the courts calculate special damages for future losses?
The calculation of special damages for future losses, both real and potential, can be fairly complicated. There are many different factors to take into consideration. In many cases special damages can be significantly greater than general damages, reflecting changes in an individual’s long-term standard of living.
Some of the more common issues taken into consideration include:-
Medical treatment/specialist care
In some cases the victim may need to move into a nursing home or some form of specialist housing facility. They may also require ongoing medical treatment which, if long-term, can be relatively expensive. Check-ups as well as physical and mental therapy are commonplace, with mental issues often occurring as a consequence of the initial injuries.
Specialist equipment
Prosthetics, wheelchairs, walking aids and even adapted vehicles, all come under the heading of specialist equipment which is part of a special damages claim. The award will not only cover the initial expense but also ongoing expenses and potential replacement costs. If it relates to the accident, it can be included in the compensation claim.
Change in employment
After incurring physical and/or mental injuries, we often find that many victims are not able to return to their previous employment. As a consequence they may be forced to take on an alternative employment role. This comes under the headline of loss of earnings/potential earnings and while often difficult to calculate, will be part of any claim. Assuming that the calculations are reasonable and accurate, it is unlikely that any judge would deny an application.
Loss of earnings, potential and opportunities
Many people automatically assume that it is just loss of earnings which are part of a special damages award. It can be a lot more. If an individual was in the early stages of a potentially lucrative career, this could be taken into account. It can be difficult to place a figure on loss of potential earnings, bonuses, pension payments and long-term opportunities but there are standard formats and calculations. If for example a promising footballer had their career curtailed at a relatively early stage, with the money in the game today, there could be huge damages to pay.
Backing up calculations with reasonable assumptions
If we assume that the defendant has admitted liability, or it has been proven and accepted by the court, the judge will likely look favourably on reasonable assumptions when reviewing general and special damages. Any inappropriate calculations, unreasonable assumptions and excessive claims, would likely be thrown out. Thankfully, those who use a personal injury solicitor will benefit from their experience of the system.
Summary
A first glance, it does look bizarre that those who die relatively soon, as a consequence of their injuries, normally receive little in the way of general damages. Those who experience prolonged suffering and a reduction in their standard of living could receive significant general damages. However, it is important to look at both general damages and special damages in tandem to see the bigger picture.
If you believe you have a valid claim for negligence, resulting in either physical or mental injury, it is worthwhile contacting us for a consultation. A solicitor will be able to assess your case, review the evidence and give you an honest opinion about your chances of success. If they believe you have a resonable chance of success, there is every chance you’ll be offered a No Win No Fee arrangement.
