SPECIAL DAMAGES IN PERSONAL INJURY CLAIMS
Compensation in personal injury cases is made up of two different types of loss, being “general damages” and “specials damages”.
“General damages” relate to receiving monies for pain, suffering and loss of amenity (compensation) which has arisen from your physical and/or psychological suffering due to the accident. Since each accident and Claimant are unique, no precise value can be ascribed to such loss. In essence, this is a touchy-feely loss which is either agreed with a compensator in amount or decided by a judge taking into account all of the facts of the case.
“Special damages” refer to any financial losses you may have suffered due to the incident in question. By contrast, these are fixed in amount and have a precise financial value.
Special damages can be claimed for various types of financial losses, the most common being the following:
LOSS OF EARNINGS
Loss of earnings tends to be the highest value loss following an accident. If you are off work for any time at all, then the amount can escalate, causing financial pressure upon you.
You are entitled to this head of claim if you have had to take time off work due to your injury and lost out on earnings.
In some cases, you may receive sick pay from your employer in full and not have a personal claim for loss of earnings. However, depending on your contract of employment, you may be required to refund to your employer any sick pay that is paid to you due to an injury caused by any accident. It is also possible to make a claim for loss of any overtime or bonuses, especially if you worked these prior to your accident and no longer could.
Loss of earnings, loss of profits or loss of business can be claimed if you are self-employed.
As with proving any loss, you need paperwork to prove your claim. The documentation that would normally be required to prove a loss of earnings claim would be wage slips for a 13-week period prior to the accident (or as long a period as you have them for) and for the period of your absence from work. A letter from your employer will confirm your time off work.
If you are self-employed it is a little more complicated, but generally accounts and tax returns will show the taxable income you would have received but for the accident.
What if you will never return to work, or may need future medical treatment like an operation and therefore have a future loss? You can also make a claim for future losses but will need a medical expert to confirm how long you will be unable to work due to your injury as well as proof of your actual earnings.
In the UK there is an excellent National Health Service. Normally treatment for accidents and injuries in the Emergency Departments is world class. However, after you have been x-rayed, and given initial treatment, the follow through can sometimes by wanting. This is where a surprising legal issue arises. Just because there is an available free health service, this does not mean you have to use that to treat accident related injuries. The law says you can recover the costs of private treatment from the compensator notwithstanding the same treatment would be free on the NHS. Common treatments like physiotherapy, chiropractic treatment and the like can therefore be sought on a fee paying basis and the compensator should reimburse such costs.
Additionally, many claimants have to attend medical appointments, either at their GP or Hospital or even physiotherapy appointments and this can incur expenses in terms of mileage, parking expenses or even having to use public transport. Again, you can recover the costs of this.
Purchasing medication because of the injury you have suffered can also be claimed. This also includes any prescriptions given to you by your GP, over the counter medication or equipment for example a crutch or walking stick that you may have had to purchase.
Some of the most important special damages claims are to your vehicle. Though you can go through your own insurers most claimants do make a claim for any damage to their vehicle under special damages. An engineer’s report is obtained on your vehicle and forwarded to the compensator who will deal with any repairs or the value of your vehicle as a special damages claim.
Included in this will also be an insurance policy excess which you may have to pay to your own insurance company. Again, this is a financial loss which you can claim under special damages.
The law says you are to be placed in the same position but for the accident. Therefore, if you need to hire a replacement like for like vehicle whilst your own is off the road, you can claim the costs of this.
CARE AND ASSISTANCE
Care and assistance is another head that you can claim under special damages and is very common. If the care provided is needed, but friends and family are not able to do this for you, then you would have to employ somebody to do it for you at a cost. Courts can make an award to a Claimant for damages for the cost of care provided, be it either by professionals or by friends and family for no financial payments.
You can only claim for additional services which are provided as a result of the injuries sustained in the accident. So, if you are being looked after by your partner, and your partner normally carries out domestic tasks or provided personal care to you before the accident then you cannot claim for this. Only care needs arising directly out of the accident can be claimed.
If a family member had to take time off work to take care of you then they would not be able to recover the cost of both their loss of earnings and the cost of the care provided – this would effectively be recovering money for the same loss twice over.
When damages are paid for such ahead of claim, the money is held “on trust” for the carer to reimburse them after the event. In practical terms, this means that no claim for care can be brought where the care provider is also the defendant in the claim (e.g. where two partners are involved in a car accident, and the passenger brings a claim against the driver).
You are also able to claim for any damaged clothing, mobiles, iPad, etc, items that have been damaged in the incident.
Judges like paperwork. Without proper documents, you will be unable to recover your losses. You are under a duty to make sure that your claim is properly presented. Only then you will receive all the compensation to which you are entitled. Special damages claims can be difficult, and you may wish to speak to a lawyer if you have had an accident and as a result lost money.