How is it possible to place a value on part of your body, unique to you and not usually measured in monetary terms? This is a challenge faced by personal injury lawyers when advising clients on the value of their claim.
If an individual has suffered an injury or accident which was not their fault, they may be entitled to make a claim for compensation. One element of this claim is solatium, which attempts to take account of the pain and suffering experienced by the injured person.
To provide consistency in awards for solatium, the Judicial Studies Board prepare guidelines which assess the level of award for each type of injury, taking account of recent court decisions. Whilst not law, they provide a vital reference point for lawyers and the judiciary when considering the appropriate level of compensation.
The loss of one hand is valued at up to £87,410 This may initially seem like a significant sum, however, when faced with the practical and everyday realities of living with one hand for the rest of your life, is it enough? Loss of one foot is valued at a similar level to the loss of one hand, whilst loss of both feet or both hands is valued at up to £160,600. Would you consider your taste buds or your sense of smell to be more important to you? Loss of taste is valued at up to £19,920, whilst loss of smell is more valuable at up to £26,230. Loss of both these senses is valued at up to £31,220, highlighting that often where there are multiple injuries, the cumulative award is lower.
An award for a female rendered infertile due to injury or disease is valued at up to £135,030. An award to a male for total loss of his reproductive organs is £122,640. Deafness is valued at £87,410, whilst blindness in both eyes is valued up to £214,210. The 15th Edition of the Guidelines, published in the last few days, will increase these figures to take account of inflation.
A further complicating factor is that it is often the case that the injured person will have suffered a variety of injuries to various parts of their body. In these circumstances, multiple expert witnesses will be required to comment upon each aspect of the injuries, with consideration of the interplay between the various injuries and the long-term impact. There are not just physical injuries to take account of, but injuries which cannot be seen such as those which impact on mental health.
What personal injury lawyers seek to do is put the injured person back in the position they would have been in had the accident not occurred, to compensate for the loss. In my opinion, this is impossible for personal injury clients. Their life will often have been significantly changed and, for that reason, even the most successful outcome will be bittersweet.
Although the litigation process is often unavoidably stressful, time-consuming and lengthy, it often facilitates positive changes. Further examination of injuries by medical experts may lead to additional treatment recommendations not explored by previous consultants or perhaps unavailable on the NHS. The cost of these investigations can be included as part of the claim.
The litigation process allows for a thorough analysis of all losses resulting from the accident. In addition to solatium, these may include: past and future loss of earnings; services to cover the cost of assistance provided by family; out-of-pocket expenses such as travel, treatment adaptations to property or mobility aids; and future costs such as nursing care or special equipment, for example, prosthetic limbs which may require to be regularly replaced.
It is crucial all losses are included in the claim as once an award is made, it is imossible to make additional claims later. It is also vital to protect these funds by seeking the advice of a financial adviser. A discount is applied to awards which include future costs on the assumption that the funds will be invested and generate an income, so this must be done to generate the correct level of compensation over time.
When an individual is deciding whether to pursue a personal injury claim, the first step is to consider the value of the claim. Morton Fraser has recently launched an online Compensation Calculator which allows an individual to check the potential value of their claim for solatium. Whilst some clients are uncomfortable with pursuing a personal injury claim and raising court action, the reality often is that due to the nature of the injury and the financial implications for them and their family, there is no alternative.
Nicola Edgar is a senior associate at Morton Fraser