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September 10th 2019

What’s it worth? How Road Traffic Accident Compensation is Calculated

What’s it worth? How Road Traffic Accident Compensation is Calculated

Nobody wants to be involved in a crash, whether it be a minor knock or a major ‘off’. But as motorcyclists, it is a risk we face every day and, let’s be fair, we accept that risk as part of the lifestyle and our love of bikes.

Nobody wants to be involved in a crash, whether it be a minor knock or a major ‘off’. But as motorcyclists, it is a risk we face every day and, let’s be fair, we accept that risk as part of the lifestyle and our love of bikes.

In a previous article, I gave advice on things that you can do to make life easier for you and your legal team wherever possible immediately after the crash. But once the dust settles, the next question that crops up on a regular basis is: “how much is my claim likely to be worth?”

One of the important things to bear in mind is that in personal injury claims, there is what’s called the ‘limitation’.  This means that there is a specific timeframe in which court proceedings must be issued against a defendant, otherwise, your claim becomes time-barred and is prevented from continuing.  Limitation in personal injury cases is generally 3 years from the date of the accident or injury. However, there are cases where you may not realise that you have suffered a significant injury or that you may have a claim until later; in such cases, limitation may run from what is known as your ‘date of knowledge’ (the date on which you knew or ought to have known that you had suffered a significant injury due to the negligence of the defendant).

An exception to this rule is in the case of children where the 3-year period does not start to run until their 18th birthday, i.e. when they become and adult. A further exception is for people who do not have the capacity to conduct their own affairs, e.g. people who have suffered a severe brain injury; in such cases, there is, effectively, no limitation period.  Having said that, it is also fair to say that the majority of cases are settled without the need to issue court proceedings, or to ever see the inside of a courtroom.

One very important point to make at the outset is that the system of compensation in this country is designed to put the person in the position that they would have been in had they not had the accident, i.e. to compensate for losses arising from it. Compensation is not awarded to provide any bonus or windfall for the injured party nor, generally, speaking, to punish the wrongdoer.

When it comes to compensation (or ‘damages’) in a personal injury claim, there are two elements to consider:

General Damages

The first part is called ‘general damages’: this is the part of the claim that deals with the injuries sustained and includes payment for the actual pain and suffering, as well as any inability to lead your normal life as a result of the injuries.

When I speak to groups and clubs, one of the questions I always ask is how much they think a catastrophic injury such as a severe brain injury is worth.  The answers range from half a million pounds to several million; the truth might be more surprising.

If you read any motorcycle forum, a common question asked is “I received such and such an injury, how much is it worth?”  Everyone and his mate will offer a value, and if you speak to 10 riders who all sustained the same or similar injuries and claimed compensation, the figures awarded will often vary.  This is because every case has to be judged on its own individual merits and the way a similar injury affects people will also vary, as will the time it takes for them to recover. There may also be a situation where a degree of contributory negligence has to be taken into account (which is a separate subject) and so it is impossible to put an exact figure on a specific injury; this is where your solicitors’ knowledge and skills come to the fore.

Additionally, no two people have the same personal circumstances, e.g. one person may have lost a lot of pay as a result of the accident compared with another, and this also has a bearing, so nobody can provide specific figures without having all the facts of the individual case.

Special Damages & Future Losses

The second element of the claim is called ‘special damages’: this is where the high values in the serious cases that you often hear about come into play.

Broadly, special damages cover all the quantifiable, financial losses that the injured person has suffered, or is likely to suffer, as a result of the crash and the injuries that were sustained.

The list of what can be claimed for is not restricted, providing it is justified and can be substantiated and results from the defendant’s negligence.  In minor cases, the most obvious elements of the special damages claim are things like out-of-pocket expenses, so for example, travelling costs, if you have to make visits to the hospital or to see your doctor; car parking costs; prescription costs; and the cost of replacing damaged, personal items, such as clothing, crash helmets and the like.

Then there are less obvious things: for example if you cannot keep your garden in order and you need to pay for someone to come in and look after it for you during your incapacity, or maybe you just need someone to go and do your weekly groceries shop for you; this can all be claimed back.

What I always advise people is, wherever possible, keep a diary and use it to keep a record of your costs, and also try to keep any relevant receipts, invoices, etc. you have.  The defendant insurers will often try and question or ask you to mitigate these expenses, but if you have it all in a diary with what you paid for and why, together with any receipts you have managed to keep, then it makes it much more difficult for the defendant to contest that element of the claim.

In the very serious cases, such as a severe brain injury or tetraplegia, the financial losses can be extremely high.  For example, the person might need 24-hour, around-the-clock medical care; they may need to have their home adapted; or they may need to have a specially-adapted vehicle, which in turn will need to be replaced every few years.

Then there is the loss of earnings.  Someone badly injured in, say, their early 30’s in a high-paid job, who was expected to progress in their career, is going to suffer severe financial losses and so this loss is carefully calculated by the experts and lawyers. This may also take into account any resulting pension loss.

So, the list really is not definitive as to what can be claimed but, in the same vein, these losses have to be mitigated where possible.

How long will my claim take to settle?

This is another question that is difficult to answer as again, no two cases are ever the same.  Many of the high-volume non-specialist law and claims-management firms will make promises of a fast settlement which can lead to a number of issues.

Firstly, if the claim is settled before you have fully recovered and you sign a full-and-final settlement, and then you find that your problems persist, then you will not be able to re-open the case, leaving only one option which is to sue your legal representative for professional negligence.

But in any case, if your case is settled too quickly, then there is a fair chance that your claim will have been undervalued for a quick settlement which could leave you well out of pocket.

As a general rule, the approximate settlement times can be broken into three time periods:

Minor Injuries – 12 – 18 months

Moderate Injuries – 18 – 36 months

Serious and/or Catastrophic Injuries – 3 years +

In the case of a brain injury, you are looking at a potential claim period of 5 years or more, as it takes a number of years before the doctors can determine the true severity of the injury and its long-term effects.  Once the injury has stabilised and the likely capability of the individual can be established, then an accurate value can start to be calculated for the appropriate amount of compensation.

Who decides how serious the injury is?

From a practical point of view, most of us will know whether an injury is minor or serious, but from a legal point of view, in order to claim compensation, it needs a properly-qualified, independent, medical expert to make that determination.

In most cases, the claimant at some stage during the claims process (often once they have made a recovery or are well on the road to recovery) will be asked to attend an examination with a qualified medical expert who will discuss the crash and the injuries, as well as any on-going issues. The expert will then submit a written report on their findings and it is this report that helps your solicitor value the case.

In the case of a severe or catastrophic injury, the medical assessments will be on-going from an early stage in the claims process, and may well involve a number of specialist medical experts from a range of fields. This is because you have to have an expert from the correct medical field to assess each type of injury, e.g. if you have broken your leg, you will need an orthopaedic expert, but if you have suffered a brain injury you will need a neurologist, amongst others.

The bottom line is that the only person who can reliably provide you with a figure as to the value is your solicitor or legal representative. If your claim is handled properly, then there is no quick settlement solution, but if you have the right people looking after you, then in the long-term your case should realise its full and proper value.

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