- February 18, 2020
- By Francesca Krauze
- 0 comments
Personal injury- what can I claim?
The aim of any personal injury claim is to return the injured party to the position they would have been in had the accident not happened. This is something that the courts refer to as “restorative compensation”’. Of course, in reality this is virtually impossible in many cases as the claimant’s life may have been permanently changed by the injury they have suffered. However, the law is generally good at replacing the money that the claimant has lost as a result of their injuries, along with the money that they have legitimately spent.
Personal injury claims are broken down into three separate heads of loss, for which the claimant can be compensated:
- Damages for pain, suffering and loss of amenity
This is the compensation awarded for the actual injury/injuries. This is commonly referred to as an award for pain suffering and loss of amenity (amenity meaning enjoyment of life). It used to be the case that in order to determine how much a claim for an injury was worth it was an exercise of looking through historic decisions and estimating where a claim fitted in. Judges and practitioners have been assisted by the Judicial College Guidelines which provide bracket awards for physical and psychological injuries. A lot of people think that the awards are far too low but the guidelines are extremely difficult to challenge. It should also be noted that, if you suffer, for example, a broken pelvis and a broken femur, a judge would not normally simply add each figure together. This is because the pain and discomfort from each injury is often suffered at overlapping times and therefore these figures are compounded to reflect this.
- Past financial losses
This is the compensation awarded for the money that the claimant has lost as a result of their injuries and the money that they have legitimately spent as a consequence of the accident. Examples of financial losses include:
- Sums paid for care or the value provided for free by family and friends
- The fees of a rehabilitation case manager
- Medical treatment and therapy costs
- Additional travel and transport expenses
- The costs of adapting accommodation or of moving to more suitable accommodation
- Aids and equipment purchases
- Additional leisure and holiday expenses
- Loss of earnings
- Future financial losses
This is the compensation awarded for the money that the claimant anticipates that they will legitimately need to spend in the future in order to return them to the position that they would have been in “but for” the accident. These future losses are usually projected with the assistance of expert evidence which will opine on the claimant’s future needs going forward.
It is important to bear in mind that because the claims for with future losses is based on the claimant’s expert evidence, the insurers may obtain their own expert evidence to dispute these.
The claimant’s solicitors will always put forward the claimant’s very best case based on their expert evidence but unfortunately, the fact that the claimant has suffered a loss and will continue to suffer further losses does not mean that a judge will automatically award whatever the claimant says the loss is, and it is always up to the claimant to prove the loss.
In every claim, the injured party has a duty to act reasonably to reduce the impact of the accident. This is referred to as the “duty to mitigate loss”. This duty arises in a number of ways, for example, the claimant who is no longer able to work in their previous occupation may be expected to take a job for less money that is less appealing, in order to achieve some earnings and reduce their loss of earnings claim.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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