How is the value of a personal injury claim assessed?

By Eoin P. Campbell, LL.B., Solicitor

The amount of compensation to which a plaintiff is entitled depends entirely on the individual factors in each case. It is important to remember that no two cases are identical and neither are the injuries sustained or personal circumstances of the people involved. In the early stage of the preparation of your personal injury litigation case, it is often futile to attempt to place a valuation on a claim.

Obviously, your solicitor is not a medical professiona. Your solicitor is not qualified to, and therefore will not, offer a diagnosis of your injury or a prognosis for the recovery period from same. The role of your solicitor is to ensure that the settlement figure or award accurately reflects the personal loss, injury, and damage that you have sustained as a result of your accident.  In order to do so, he or she will take the greatest care to construct the strongest possible case on your behalf.

Your solicitor will rely on medical evidence from your own doctor including medical records (showing any attendances at hospital or with your general practitioner in relation to your accident), and perhaps commissioned reports from specialist consultants. It is therefore extremely important that your medical records are comprehensive.

Which Court?

After taking your initial instructions, your solicitor will request reports from any medical practitioners whom you may have attended. These early reports are normally of a preliminary nature, and will be used to decide in which court proceedings should be issued. The District Court has jurisdiction to make awards of up to approximately €6,000, the Circuit Court has jurisdiction up to approximately €40,000, and the High Court has an unlimited jurisdiction.

Liability

There are a number of factors that will normally influence the value of your claim, the first of which relates to any dispute over liability for the accident that may arise between the parties. 
The cause of an accident is not always obvious. In many situations, one party may be completely to blame. However, it is also true that more than one, or several, factors contributed to the accident that has occurred. Moreover, one of the causal factors may have in fact been the negligence of the injured party himself. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own injury?

Contributory negligence is the legal principle that an injured party i.e. the plaintiff may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded.

Trauma Suffered

The value of the claim does not necessarily increase with a bigger, more dramatic crashes or accidents. It is important to remember that compensation is paid for the injuries that someone has actually sustained. Unless a psychological injury or trauma can be proven to have occurred, the nature of the accident is of very much secondary importance to the injuries that have in fact occurred to the plaintiff. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the accident in negotiations or at trial as same will, of course, present your claim in a more sympathetic light and may contribute favourably to the case. For example, an insurance company would be vary wary of going to to court if the defendant was drunk driving at the time of an accident.

Medical Special Damages

Generally speaking, the costs of any specialist medical treatment that you have required or will require due to the injuries that you have sustained in the accident can be compensated for in full.

Type of Injury

Notwithstanding which injury may cause the individual more pain, it is very often the case that injuries are valued according to their level of seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed (e.g. a broken bone or a visible scar versus soft tissue strain). The permanency and persistence of the injury are, of course, also important factor.

Prognosis

Is the injury sustained likely to be permanent or have long-term consequences? Obviously the longer that symptoms are expected to be present the larger the compensation. What is also very significant is the age of the victim. If an injury is expected to have permanent effects, very often  a similar injury may be ‘worth’ more to a younger plaintiff than an older person. This is due to the simple logic that a younger person can be expected to have to cope with the consequences for a longer time. On a basic level, for example, if a 20 year old person loses a limb the principle is that he or she may have to live with that injury for potentially 60 years or more. If a person of 70 years old who suffers the same genre of injury, it will be assumed will not have to cope with that disability for the same length of time. Your claim value may also rise further if the doctors consulted specify that you will require future specialist medical care.

Medical History

Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries and of treatment of the same area of the body this may affect your claim significantly. Perhaps the key question is whether the accident was the primary cause of the injury or only an aggravating factor?

Impairment of Quality of Life

Our work or careers are not the only important things in life and as such any claim for personal injury compensation will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each plaintiff as every persons passions and interests will be different. A significant injury to the index finger, for example, may be viewed more seriously if it can be proven that the plaintiff was a keen amateur pianist prior to the accident.

Severity and Persistence of Pain Suffered

The very principle behind personal injury compensation is indeed to compensate you for your injury and related suffering. Therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.

Loss of Earnings

Strictly speaking, this is a separate aspect to the personal injury claim but it often causes confusion for clients and frustration for both solicitors and barristers. Clients may often compare their settlement or award to that of a friend or acquaintance who received “€30,000 more than me!” for a similar injury. This may well be due to a significant loss of earnings which a plaintiff has been awarded due to a lengthy absence (or predicted absence from work). The amount awarded, of course, corresponds to that person’s earning power or potential earning power. With respect to the loss of earnings (be it past or future) aspect of the claim, the gravity of the injury itself is only relevant insofar as it restricts that person from working. Personal circumstances are a factor, a different type of injury may have entirely different consequences for the plaintiff depending on their respective professions e.g. a knee injury to a professional footballer or a facial scar to a model.

Summary

  • The value of a claim for personal injury compensation is determined by a number of different factors.
  • The most important item when having a claim value assessed is the report from your doctor.
  • Any negligent actions on your part will also affect the assessment of your claim value.
  • Special damages for out of pocket expenses can also be included when having a claim value assessed.
  • Potential loss of earnings is another factor which may distinguish your claim value from somebody with similar injuries.
  • If you would like your claim value assessed, contact our free advice service.

it is important to note that each case is unique. If you feel that you have a potential personal injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.

Copyright © 2009 Eoin P. Campbell

Eoin P. Campbell About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.