Compensation for injury
There are many misconceptions about what can be claimed when someone suffers an injury. Nikki Sharp explains what someone might expect to receive in compensation for their accident or disease.
When someone is injured at or away from work, or is diagnosed with a work-related illness, it is important that they understand what compensation they may be entitled to claim.
Various factors will influence the amount of damages that a court will award. This is the calculation that a personal injury solicitor will base a compensation claim on.
- severity of injury ie loss of limbs or senses, ligament damage
- duration of pain and suffering
- prominence of injury ie its visibility
- need for ongoing treatment
- future deterioration
- pre-existing conditions such as arthritis, made worse by injury.
The more severe the above factors are, the higher the damages are likely to be, though where there is a pre-existing condition, this may reduce the value of the claim.
General & Special Damages
An injured person is entitled to be compensated for the pain and suffering and for the “loss of amenity” experienced as a result of the accident and injury. This means the effect of the injury on the individual’s ability to carry out everyday activities such as housework, DIY, to look after themselves, to carry on with their hobbies and sporting activities and generally to enjoy life.
These are known as general damages. It is also possible to claim general damages for future losses, which, it is calculated, will be suffered as a result of the injury, such as an inability to work or the loss of promotion prospects.
Special damages are claimed for out-of-pocket expenses that result from the accident, such as damage to clothing and property, loss of earnings, travelling to receive treatment, prescriptions and the costs of care such as help around the home. These are easier to claim if receipts are kept to show they have been incurred.
When the injured person has been referred to a solicitor through the union’s legal service and their claim has been assessed, a medical report from a doctor who is an expert in the type of injury or disease will be obtained. This will confirm or provide a diagnosis and will be used to evaluate the amount of compensation that might be claimed.
The medical report must, however, support the claimant’s case that the injury was caused as a result of the accident or the disease as a result of exposure to a particular substance for it to be used.
It is also still necessary to establish that liability for the accident lies with the other party – the employer – whatever the medical report concludes.
Assessing how much should be claimed for an injury is an imprecise art with every case turning on its own facts. A monetary value has to be put on the pain and suffering and also on the prognosis and impact on earnings and future earnings. The claimant’s personal circumstances, such as their age and marital / family circumstances, are all factors in assessing a claim.
No two cases will be the same. Two people may suffer whiplash injuries in the same road traffic accident but the level of damages they receive are likely to be different since they are unlikely to suffer identical pain and losses.
While damages are intended to restore the injured person to the position they were in prior to the accident, they often fail to do so.
Judicial Studies Board
Solicitors and Judges do have guidance to go on when assessing how much compensation a particular type of injury or disease is likely to be worth. They will look at previous awards for similar types of cases. And they will also check the guidelines issued by the Judicial Studies Board (JSB).
The JSB guidelines are only that, but they do provide an indication as to how much should be claimed for a certain type of injury, according to its severity.
Mrs J was working as a hospital cleaner. During the course of her duties and as she was walking through the ward she slipped on a patch of water on the ward floor, fell and injured her right ankle. An entry was made in the accident book and she was referred to A&E. An x-ray revealed no fracture but severe bruising and ligament damage.
She was signed off work for four weeks and required assistance around the home from her partner with cleaning, housework and other general chores. She also took prescription painkillers for four weeks.
The hospital’s insurer admitted liability. A medical report was obtained that confirmed the circumstances of the accident and that Mrs J would continue to have symptoms for 12 months from date of the accident.
The claimant was awarded £3,500 general damages, which was for the pain and suffering and loss of amenity as she was unable to pursue her hobbies of walking and ballroom dancing.
In addition, a figure was negotiated for special damages for lost earnings, prescriptions and gratuitous care.
Comment: If Mrs J had suffered a fracture or more serious injury, the risk of incomplete recovery, the ankle giving way or the development of osteoarthritis might have resulted in damages up to £8,750.
A permanent injury to the ankle with a deformity would have given her £32,000 to £44,500 general damages, not including special damages.
A school kitchen assistant received minor burns when removing hot pies from an oven in a school kitchen. No protective gloves had been provided.
Medical treatment was not required but an accident report was completed. The kitchen assistant suffered pain for two weeks but no permanent scarring.
The school admitted liability and the claim for compensation was settled for £1,000.
Comment: Damages can be recovered for what may appear to be quite trivial injuries but which have been caused by the negligence of the employer or other party. Members should not be deterred from claiming because the injury is minor. By claiming they are likely to expose the breach of health and safety regulations and ensure that a similar accident does not happen again.