The calculation of damages

13/10/2011

By Oliver Chapman, Solicitor in Clinical Negligence.

There are various case studies on our website which document the damages we have obtained for claimants who have suffered injuries as a result of clinical negligence or accidents. Understandably, high value cases can attract media interest, which needs to be managed carefully. The reporting of cases can potentially lead to some misunderstanding in the public as to how damages are calculated.

‘Damages’ is the word used to describe the financial compensation which is paid for an injury. They are comprised of three possible elements: general damages, special damages and future losses and expenses.

General damages

General damages are awarded to reflect the pain, suffering and loss of amenity which an injury has had on the claimant. They reflect the impact of the injury on the claimant’s life including, for example, the loss of a chosen career. General damages cover the consequences of the injury which in a sense cannot be valued in terms of money. However, since compensation can be given only in money, a monetary value has to be placed on the injury. 

In order to value general damages, a condition and prognosis report should be obtained from an independent medical expert. Sometimes more than one report will be necessary. The report will document the injuries sustained, the level of pain suffered and, as far as possible, a prognosis of how the injury may affect the claimant in the future.

To ensure that there is some consistency, general damages are calculated based upon precedent. The word “calculated” is used quite loosely as there is no hard and fast formula for precisely valuing an injury. The starting point is to consider the guidelines drafted by the Judicial Studies Board. These are a set of tables with descriptions of various injuries of various severities. These descriptions are accompanied by a guideline range within which, it is suggested, that awards for particular types of injury should fall. The figures recommended increase each year with inflation.

The next stage is to consider past cases to see how the courts have applied the guidelines in practice.

Special damages

The claims for past financial losses or expenses arising from the injury are called special damages. As they are often tangible losses, they can be calculated more precisely. In some cases there may be very few special damages. In others, the special damages are far greater than the general damages.

There are many potential losses which can be claimed, provided the losses are a foreseeable consequence of the injury. By way of brief example, they might include the claimant’s lost earnings and the expenses incurred which are attributable to injury. The expenses might include travel expenses, the cost of prescriptions and medication, bandages or dressings, aids and equipment and alterations around the house. If a claimant has required care and assistance as a result of the injury, it is possible to claim for the cost of that care. This is not just a claim for the cost of professional care, but also for any gratuitous care provided by friends and family. Gratuitous care is calculated at a discounted nursing rate.

Future losses and expenses

It is also possible to claim for financial losses or expenses that will arise in the future, assuming the claimant does not make a full recovery. These may be a continuation of past losses, such as loss of earnings. A Smith v Manchester award is designed to compensate someone for their future disadvantage on the labour market.

Where an injury has led to a claimant’s death, it is possible for their estate to pursue the claim which the deceased was entitled to pursue the instant before he or she died. It is also possible for the deceased’s dependants to claim for their loss of dependency. Special damages and these future losses are calculated using actuarial multipliers.

Conclusions

This article is only intended as a very brief introduction to this subject and detailed advice on a case’s value would need to be given by the lawyers handling the claim. In difficult cases where there are risks that a claim would fail, the size of the settlement might reflect the risks of obtaining no compensation whatsoever.

General damages in this country are not generous. For example, the 2011 JSB Guidelines suggest that a moderate knee injury which causes a period of pain and leaves the claimant with permanent and continuous aching and discomfort, with occasional pain, is unlikely to attract an award above £9,000.

In the most severe cases, where for example someone has suffered quadriplegia, the guidelines recommend awards between £212,500 and £265,000. The value will reflect the extent of any ongoing movement, the presence and extent of pain, any depression and the age and life expectancy of the claimant. Awards towards the top of the bracket would only be made where the claimant has suffered a significant effect on senses or ability to communicate, which is likely to involve significant brain damage.

On one hand this is a large amount of money, but given the unimaginable impact that such injuries have on a claimant, the value is too little to provide true compensation.

In cases involving brain injuries and conditions such as cerebral palsy, cases may settle for several millions of pounds. The general damages only make up a small amount of the total damages. The majority of the damages must be used to pay for the cost of past and future care, accommodation needs and special equipment. Such damages do not represent a windfall for claimants, particularly as the future costs now tend to be payable from the yearly instalments made by the defendant (called periodical payments), which need to be managed carefully, often with the involvement of the Court of Protection. Following a settlement, some of the damages may need to be repaid to the state if the claimant had previously received benefits because of their injury.

The situation is very different to the United States where damages are often significantly higher. Damages in the United States are punitive, meaning they not only compensate a claimant but are also intended to punish the defendant and discourage them for committing that act of negligence again.

Whilst damages in this country are not generous, the compensation is intended to bring claimants some satisfaction and, in cases where the injuries will have a significant ongoing impact, provide financial security for the claimant and peace of mind for their family.

Oliver Chapman is a Solicitor in Clinical Negligence. If you would like to ask Oliver a question about a potential case or you have a general query about medical negligence contact Oliver on 01892 701234 in confidence.