Around the same time as the conversation with the neurosurgeon described below, someone suggested I should write a blog about the ‘principle(s) of compensation’.
Not so long ago, I was in what was genuinely a light-hearted conversation with a neurosurgeon about how solicitors can sleep at night. The premise being that it must be difficult when they (the bad guys) often help people sue doctors and other clinicians (the good guys). Of course, there is no claim to make where everything has gone as it should. No right-minded person goes to work to make a mistake, but mistakes do happen. When the mistake has happened with catastrophic and life changing consequences for the individual, my colleagues and I use our skills and expertise to help the injured person and their family. The injured person, in so far as our specialist practice is concerned, will almost always have suffered a life changing spinal cord injury. It doesn’t matter to us how or where the injury arose; what matters is that we do all we can to make the injured person’s situation better.
The conversation touched on the general principle of the law by which compensatory damages place the Claimant, so far as money can do, in the position they would have been in had the tort (for present purposes ‘the negligent actions of another’) not been committed.
Compensation is the best the legal system can do – and of course no amount of money can turn back the clock or ever truly be enough*.
Now it would be wrong to assert that that is all there is to know. If that were so it would call in to question why on earth we study tort law as part of our law degrees; grapple with how to use it at law school; and then spend whole careers pre-occupied with it and with what a Judge may decide about the context we have presented it to them in.
I suspect the person suggesting the topic of this blog probably wanted a shorter overview about what could be claimed as compensation rather than a scholarly tome about the basis of why it can be claimed. I hope what follows suffices.
In very broad terms: a person injured by the negligent actions of someone else can claim compensatory damages for all the loss flowing from the negligence. That means provided the claimant can prove a duty was owed to them; that the duty was breached by something someone else did or did not do; and that breach then caused injury and associated losses; then the financial value of those losses can be claimed as compensation.
Of course, the opponent to the claim may well dispute that a duty was owed, and or that it was breached; and may argue that, even if there was a breach of duty, the breach did not cause all the loss asserted. There is always a lot for a Judge to judge. Whether compensation should be paid is for another article.
How much compensation should be paid will be determined by evidence submitted in support of a pleading put before the Court by the Claimant called a ‘Schedule of Loss’.
The Schedule of Loss is prepared by the Claimant setting out all of the losses incurred to the date of the Schedule, and all of the losses it is anticipated will be incurred in future. Lawyers divide the Schedule in two broad sections.
The first is general damages which are the compensation sums sought for things that are harder to ascribe a monetary value to. Compensation for ‘pain suffering and loss of amenity’ is usually a significant part of a compensation award. It will be informed by awards made in cases involving similar injuries weighed with the evidence for what the Claimant’s actual pain suffering and loss of amenity per the evidence is.
As an aside the worst combination of catastrophic injuries most of us could envisage would not usually attract an award for pain suffering and loss of amenity exceeding £350,000 or so. This is because the significant parts of compensation awards after life changing injuries are incurred in future for the remainder (and entirety) of the Claimant’s life. The more significant the injury combined with the younger age of the Claimant, the more likely the total compensation sum will be in seven or eight figures.
The second part of the Schedule covers Special Damages, and that is further divided into past losses and future losses. Special damages are more readily thought of (and are more easily able to be expressed and assessed) in monetary terms. Lost earnings or income; expenditure incurred and evidenced with wage slips, receipts, invoices and similar are fairly easy to ‘evidence’.
Future losses – and this is typically the part of the Schedule of Loss asserting most of the compensation being sought - will usually turn on what experts in for example rehabilitation, care and case management, therapies, equipment and technology and accommodation opine in their evidence. Those ‘expert witnesses’ will identify what the present need is and what it is likely to be in future (informed to a large extent by the lead medical evidence). An annual costing for what is reasonably needed to meet the ongoing need now and in later phases of the person’s life is arrived at. Note here: taps for a new bathroom would be ‘reasonably needed’; gold taps rarely would. A new vehicle able to accommodate a powered wheelchair would be reasonable; a high-end prestige sports car even if adapted would usually be seen as unreasonable.
The question of what the Claimant’s life expectancy is has to be navigated (this is essentially a question for medical experts, though in many spinal cord injury cases the reduction compared with pre-injury life expectancy is often not so significant provided the right rehabilitation, care, equipment, therapies and accommodation is provided for).
The Schedule shows how the future losses are calculated with reference to calculations and approaches designed to ensure that the opponent does not end up being ordered to over-compensate the Claimant. Imagine for example all the compensation was paid and immediately invested with an immediately positive return. The opponent would argue that the principle of compensation is to put the Claimant back in the position they would have been in but for their negligence and that by paying ‘more’ than is necessary to achieve that the opponent would be over-compensating the Claimant.
It is a good idea to keep a record of what is spent (or what income is lost) as a direct result of the injury. If it is income lost or expenditure that would have been lost or incurred in any event and irrespective of the injury it will not be recovered as a loss. The extent of the losses in a life changing injury case typically run to hundreds of thousands if not millions of pounds and will almost always be informed and evidenced by lay witness evidence, expert witness evidence, and documents such as wage slips, receipts and invoices that will need to be put together by the solicitor, often with input from the case manager if applicable and with your input for you to then approve.
In a nutshell then: compensation (or damages) should be recovered for all losses flowing (incurred) from the act (or omission to act) that caused the losses for which the compensation is sought because the principle of tort law is that the Claimant should be put in the position they would have been in (so far as money can achieve that) if the negligence hadn’t occurred.
*The neurosurgeon conceded that our system though not perfect is at least the best a civilised society can do – better he said than the (hopefully apocryphal) system recounted to him by a neurosurgeon in a far away country about another neurosurgeon in another far away country who had performed a difficult operation which had not achieved what it intended to and left the patient severely injured. The family of the injured patient seemingly arranged for the neurosurgeon to disappear. Justice in an uncivilised society? Sounds like one for the criminal lawyers.
To read more about Brethertons Spinal Cord Injuries Team - https://www.brethertons.co.uk/site/services/life-changing-injury-solicitors/spinal-injury-solicitors/
To follow us on Twitter - @neurolawyer
To contact us – telephone 01788 557617, or email jonrees@brethertons.co.uk or sianbuxton@brethertons.co.uk or allisonfitchett@brethertons.co.uk.
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