Personal injury claim - lucky break or heart ache?

01/10/2009

By Dominique Parker, Associate in Personal Injury.

The process of claiming compensation for personal injuries can be a torrid one. Most claimants would regard the injury and resultant process as heartache, not as a lucky break. Their dream is to travel back in time and avoid being injured in the first place.

There are a number of hurdles that injured people have to clear to arrive at any form of compensation. Sensationalist reporting of claimants being awarded millions of pounds as a result of personal injury claims has led to the misconception that an injured person is automatically entitled to 'easy money' in the form of compensation.

The first hurdle that an injured person faces is to prove that their injuries were sustained in an accident that was someone else's fault. In some cases this is easy to establish, but it can be a lengthy and complex process with no guarantee of a successful outcome.

If it is established that someone was responsible for both the accident and the injuries sustained, the next step is to work out how much compensation will be awarded. Contrary to popular belief compensation is not a windfall, it is a carefully calculated award based on the losses that an individual has suffered, or will suffer in the future. The aim is to put the injured person back in the position they would have been in had the accident not happened.

Broadly speaking there are 3 types of compensation. Firstly there is a sum to compensate for the injuries themselves – the pain, suffering and loss of amenity they have caused. These can only be valued once the injured person has been examined by an appropriate medical expert, e.g. for a fractured leg they will see a Consultant Orthopaedic Surgeon. The expert then prepares a report to summarise what injuries were sustained, whether further treatment is recommended and whether they will make a full recovery. Once the report has been obtained past case law is considered where others have sustained similar injuries. The similarities and differences between the injuries are carefully assessed to determine the amount to be awarded for this aspect of the claim.

The bulk of the larger awards that are reported in the press are made up of the other two types of compensation. These are past and future losses and expenses. Basically if an injured person has had to pay for something or has lost income as a result of the accident, they can claim it back. In addition any expenses or losses that are anticipated for the future, such as an operation required in 15 years time, shall also be claimed. The most common claims are for loss of earnings, travel expenses and medical treatment and care.

To recover anything for these losses and expenses the injured person has to provide proof  that they have suffered those losses, such as wage slips showing their drop in income for the time they were unable to work. Then they must prove those losses were incurred as a result of the accident and the injuries sustained.

Immediately it is clear that if you have two people with exactly the same injuries who were both unable to work for 2 months but one earnt £500 per month and the other £5,000 per month the value of their claims will be significantly different.

The multi million awards reported in the press are in cases where the injuries are so severe they are life changing. Consider a healthy 5 year old boy who suffers a serious brain injury leaving him with very limited mobility and no ability to communicate. He will need 24 hour care for the rest of his life and will never be able to work. Therefore at a minimum he would be entitled to claim the cost of that care and his loss of earnings for life.

In order to gather necessary evidence to prove their claim the injured person will have to attend appointments with medical experts, produce documents evidencing their losses and deal with probing questions regarding each and every item on their claim from their lawyer. Witness statements from friends and family are often required to give a clear indication of how a persons day to day life has been affected by their injuries. This can be an upsetting process if not handled sympathetically by the legal team.

The claims process can take many years and is emotionally draining. The things we read in the press sometimes don't make it clear what the injured person has been through to actually receive compensation. However, anyone who suffers an injury should not be put off from pursuing the claim, instead they should ensure that they instruct a specialist Personal Injury lawyer to act for them and to protect and support them during the various stages of the claim.