Personal Injury Claims

Overview of Compensatory Damages

Compensatory damages refer to money awarded to someone after successfully taking out a personal injury claim. They are awarded to the claimant to compensate for things such as injury, financial loss, or damages incurred by the other party at fault.

Compensatory damages differ from punitive damages, which are damages that are awarded solely to punish someone and to deter others from committing similar wrongdoings.

Compensatory damages generally fall into one of two categories: actual compensatory damages, and general compensatory damages.

What are Actual Compensatory Damages?

Actual compensatory damages are damages that are awarded to cover the cost of anything with a tangible monetary value, such as expenses, damage to items and property, and loss of earnings.

For instance, any of the following may have a fixed monetary value assigned to them and therefore could be covered by actual compensatory damages:

• Medical bills
• Physical therapy bills
• Hospice or nursing home care costs
• Damage to belongings or property
• Wage loss or employment income loss (both past and future)
• Increased living expenses

What are General Compensatory Damages?

General compensatory damages, meanwhile, are damages that cover things that do not have a fixed monetary value. These damages are intended to compensate for the pain and suffering inflicted on the claimant as a result of the personal injury claim, rather than tangible expenses or financial costs.

For example, any of the following may be covered by general compensatory damages:

• Mental distress
• Long-term physical pain and suffering
• Inconvenience
• Loss of consortium
• Loss of enjoyment of life
• Loss of opportunity

The value of general compensatory damages can be difficult to determine, as you can’t easily assign a monetary value to someone’s experience of pain and suffering. However, there are a couple of ways in which courts may determine general compensatory damages.

One way is the ‘multiplier method’, which multiplies the sum total of someone’s actual damages by an assigned number that represents the seriousness of the injury.

Meanwhile, the ‘per diem’ method attaches a monetary value to each day that the claimant suffers, and adds the total value of those days together.

Courts may use a combination of both of these methods to calculate the value of general compensatory damages in a personal injury claim.

1. The Solicitor Determines Who’s Responsible

The first step in any personal injury claim is determining who’s at fault for the injury.

This is an important step for two reasons. Firstly, the personal injury solicitor needs to know exactly who they’re claiming against in the personal injury claim, as the person, people or organisation at fault may not always be obvious or clear from the outset.

Secondly, they also ensure that you have a valid personal injury claim that can be brought against someone. For example, it’s important to determine that the accident really was someone else’s fault, as there would be no grounds for a personal injury claim if that wasn’t the case.

In many cases, it’s not the actual person or organisation that ends up having to pay damages, but their insurers. In cases where it’s not clear or obvious as to who was at fault, such as in an anonymous hit-and-run road traffic accident, the solicitors will also be able to figure out who they can claim against in order to successfully award you the compensatory damages you deserve.

2. You and the Solicitor Gather Evidence

This is an important step that helps to establish the what, how, and why of the accident, and helps to confirm that there absolutely is a valid personal injury claim to be taken out against someone.

Solicitors will often request that you give details about the following:

• When and where the accident occurred
• What you were doing before the accident, and how it happened
• Who else witnessed the accident
• What happened immediately after the accident
• Who you think is responsible

Solicitors will often ask you to provide the names and contact details of people who also witnessed the accident and take statements from them in order to corroborate your sequence of events and support your claim.

They will also ask for additional pieces of evidence such as photographs, videos, CCTV footage, dashcam footage and police reports to help build a stronger case for your injury claim. They may also collect formal reports such as accident reports from health and safety executives, if possible.

3. The Solicitor Assesses Your Injuries, Illnesses and Recovery Process

The next step involves the personal injury lawyer gathering evidence and making a clear case around what your injuries are and how they’ve affected or impacted your life.

As part of this, you will normally need to give them permission to access your hospital or GP records for specific details about your injuries. The solicitor may also:

• Ask for any photographic evidence of injuries such as bruises, scars or disfigurements
• Arrange an independent medical assessment for your injuries
• Consult specialists to determine how long you might take to recover
• Determine what the long-term impacts might be for your injuries

During your medical assessment, a medical professional will personally examine your injuries and ask you questions about any pain you’re experiencing, how it’s affected your day-to-day life, and if it’s affected your mental health at all. This information will be used to better support your case when the claim is brought forward against whoever’s at fault.

As part of this step, the solicitor will also review your recovery process and consider the long-term implications of your injury before moving on in the claims process. If necessary, they may arrange a second medical assessment some time after the first to ensure that their evidence is as accurate and up-to-date as possible.

4. The Solicitor Determines the Amount of Personal Injury Compensation Awarded

After collecting all the necessary evidence to build the basis of the personal injury claim, the solicitor will then work out how much compensation and damages from the personal injury you deserve to be paid.

There are a few things that will be taken into consideration when working out the sum total, including:

• The nature of your injuries and how much you’ve suffered
• Medical costs and expenses
• Any loss of income from not being able to work
• Costs of damages to items, property and belongings

The total value of damages may also take into consideration losses you might face in the future as a result of the accident, as well as losses already faced.

During this stage, you may also be asked to provide evidence of losses in the form of photographs of any damaged items, receipts or pay slips.

5. A Settlement is Reached

After determining how much you deserve to be compensated, the personal injury solicitor will start to negotiate a settlement with the people or organisations being claimed against.

This may involve a process of both sides making multiple offers in order to reach a mutually agreeable sum of money.

If an offer can’t be agreed between the two sides, or if the defendant denies liability for the accident, the claim will be taken to court. This can be a lengthy process that involves a judge considering all the evidence for the case, listening to witness accounts and carefully reaching a decision about how much damages the defendant would have to pay, if they’re found to be liable.

There may still be the possibility of reaching an out-of-court settlement once the claim goes to court.

6. The Personal Injury Compensation is Paid

Once an offer is accepted or the court has made a decision in your favour, you will be paid your personal injury compensation.

This may be in the form of a single lump sum that is paid out into your account. In some other cases, however, the court may order that compensation be paid in monthly or yearly instalments instead, such as when long-term health costs need to be covered.

In cases where your injuries are so severe that you have been left with limited mental capacity to handle your own finances, compensation may be paid into a special account at court. The money here will be intended to be used by specially appointed people who will use the money for your care and other costs.

If you had a no-win, no-fee guarantee with your solicitor, this is also the point where they will receive their fee for representing you and handling your case.