The object of Personal Injury* litigation is to compensate an injured person for their pain and suffering but also to reimburse them for the cost of their medical care or other expenses resulting from an injury that was no fault of their own.
Compensation in Personal Injury* cases is known as damages and it intends to put the claimant in the position they would have been in had the accident not occurred. This may or may not be entirely possible, depending on the severity of the injury. Many injuries will be followed by a quick recovery but others may require lifelong care. There are of course many cases in between these two examples and part of the Personal Injury* litigation process is to determine where on the spectrum to place the claim in order to return the person to their pre-accident life.
Types of damages
There are two main types of damages that commonly feature in settlements: special damages and general damages. While both are dealt with separately in the settlement process, they will usually be added together to come to an overall settlement amount.
Special damages are designed to repay the outlays made by the claimant or their legal team in dealing with the cost of the injury. These can consist of medical costs incurred after the accident, including physiotherapy or other treatments up to the date of the settlement but will also take into account the need for future treatments. These costs may be readily calculated from receipts but for future any costs, an estimate is made based upon the opinion of a medical expert. Where the injury causes the claimant to be off work, a calculation is made for how long they might be unable to work. Where there is a permanent or long-term disablement which prevents the claimant from working, these calculations can become more complex and may require the opinion of occupational experts to determine as much as possible what the loss of earnings would be over a significant period and what would be an appropriate compensation amount.
General damages are intended to compensate the claimant for the pain and suffering of the injury. To aid assessment, the Personal Injuries Assessment Board has produced guidelines based on past awards known as the Book of Quantum. A wide range of injuries are categorised in monetary terms taking into account the severity of the injury and the degree to which a person may have recovered or is expected to recover in the future. In practice, whether a case is settled out or inside of court, the effect of the injury on the individual person in question must be taken into account when assessing general damages.
It’s important to be aware that although the Book of Quantum offers useful guide as to the general range of awards appropriate in relation to a given injury, no two people are the same. No two people will respond to an injury in exactly the same way, particularly in light of their age or health. For this reason, the assessment of damages must take into account the effect on an individual’s life. An award of damages is of course not really an award in the normal sense and is really only the best way to hope to make up for an avoidable and unwelcome injury.