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Originally Posted by: A Kurdziel  There are two parts to this: firstly, how much you may get as compensation before the case goes to court. Insurance companies have their own tariffs for that and then, secondly, there is the guidance mentioned which is used once the case has gone to court. That guidance is made up by someone analysing all of the personal injury cases in the past few years and producing a set of tariffs based on that. I have heard of it, and it is update every year but retails at something like £2000 a copy! The judge does not have to follow the guidance, but they are expected to make compensation consistent across all cases. One thing that is not made clear in most H&S training is that there are different types of compensation. The two types of compensation in personal injury cases are: special compensation, which is for actual financial loses eg loss of earnings, cost of medical treatment and rehabilitation etc. So this just covers those costs, while general compensation looks are things that can’t really be costed: pain and suffering, lost of amenity, mental anguish etc. That is where the guidance comes in. One key thing to understand about the way the civil law works is that the defendant is either is liable, which means they have to pay out the full amount or not liable when they do not pay anything. In civil law there is no degree of liability (unlike criminal law). There is some thing called exemplary compensation which can pay paid depending on how egregious the defendants actions have been but, in the UK, it is only paid out in exceptional circumstances, usually when the government has messed something up. In the US it is part and parcel of normal civil action and explains why the amounts of compensation offered can be so eye wateringly large. In the UK, there is , contributory negligence but that depends on how much the claimant contributed to their own injury.
The above isn't quite an accurate picture of what happens in civil claims for damages. I currently work for a firm specialising in pursuing claims on behalf seriously injured claimants and I have been active in this field for many years both on behalf of claimants and defendants (for the avoidance of doubt, we are not a pernicious accident management company).
There are not two separate tariffs here - insurance company and court. Everyone works to the same system and that is what might be awarded by a court in any specific instance. If the insurance companies paid less in damages than what a claimant might reasonably achieve in court, then far more cases would end up in court than actually do. The vast majority of personal injury claims are negotiated to settlement well before they end up in court.
General damages for pain, suffering and loss of amenity (both past and future) are assessed by reference to the Judicial Council guidance referred to in earlier posts together with amounts actually awarded in court cases as reported in such journals as Current Law and the All England Reports. Bailii is also another good source for court awarded damages. No two cases are ever the same so its very often a case of finding the reported cases that are as close as possible to the injuries concerned, where the injuries are perhaps slightly worse or slightly lesser in severity than those being quantified and adjusting the final figure from there. Don't assume either that in the case of multiple injuries its a case of simply adding the figures for say a broken leg and a broken arm together. In some respects that would amount to a double recovery so the total figure would be reduced accordingly. There are a couple of instances when this method of determining general damages is not followed: when a claim is pursued under the Motor Insurers Bureau Untraced Drivers Agreement, for whiplash injuries as mentioned above and where a claim is pursued against the Criminal Injuries Compensation Authority.
Special damages basically include quantifiable losses and expenses such as loss of earnings net of tax, prescription and other medical charges, travelling expenses, policy excesses etc. They not only cover losses and expenses up to settlement or trial, should the need arise, but also future losses and this is where claims often get very expensive. Claims for future loss can far outweigh whatever is awarded by way of general damages, even where an award under that heading runs well into six figures, especially where future loss of earnings are concerned and more particularly claims for future care. In the case of lost earnings, if someone is so disabled they will never work again and are at a relatively young age, their projected net annual earnings (the multiplicand) is timesed up using a multiplier to represent the number of years lost, less an allowance to take into account the investment of the lump sum after settlement. A similar approach applies to care costs. For a tetraplegic requiring round the clock care, for example, five carers may need to be employed which can come in at around £200,000 per annum. Add in other medical treatments, alterations to living accommodation to accommodate specialist equipment, a modified vehicle, management fees etc. and the final cost soon escalates into the ten million plus bracket.
Where a claimant has received certain State benefits, these have to be repaid to the Dept. for Work & Pensions by the compensator, usually the defendant, so that the claimant does not recover twice.
Contrary to A Kurdziel's post, contributory negligence is very much a feature of civil damages claims. If the claimant's own conduct has somehow contributed towards his misfortune, then his or her damages will be reduced in proportion. This is often why cases are contested. If a defendant can reduce a sizeable award by only 10%, that can amount to a very significiant saving in monetary terms. Unlike in a criminal case where the prosecution only has to prove that a certain driver involved in a road traffic accident breached the standard of an ordinary competent motorist, in a civil case, everything is up for grabs and the matter has to be considered in its entirety and that might include the contribution of other drivers, their employers and the highway authority.
Exemplary damages, however, are an exception to the above as they are intended to punish the defendant for a wrongful act and consequently an award will 'overcompensate' the claimant. Aggravated damages compensate the claimant for injury to feelings when his or her distress was exacerbated by the circumstances in which the injury was caused or by the conduct of the defendant after the wrongful act was committed. Both types of damages are very rarely awarded in personal injury claims and, as A Kurdziel says, tend to be restricted to where public authorities have significiantly overstepped the mark in some way.
I hope the above helps to explain in a nutshell the situation for England and Wales. The situation in Scotland is slightly different and I leave those matters to someone more versed in the legalities of compensation north of the border.
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