This is obviously a very important question and we will assess and advise you on the level of damages in your case, on a continuing basis, throughout the course of your claim.
In medical negligence cases, there are three types of damages available:- special damages (for financial losses), general damages (for the injury itself) and provisional damages (which assume that a particular condition or deterioration will not arise on account of the negligence in the future but allow you to return to Court if it does).
Special damages cover your financial losses.
In broad terms, the Court, in awarding such damages, is looking to put you in as close to the position you would have been, but for the negligence/injury, as it is possible for money to do.
Any reasonably foreseeable losses and expenses are recoverable under this heading.
So, for example, if your injury has prevented you working and you (or your employer) have suffered a loss of earnings accordingly, then these will be recoverable.
This can be a significant head of damage if people have been left unable to work on a long term or permanent basis.
It may be that the negligently caused injury means that you need further medical treatment. If so, you are usually entitled to have that undertaken on a private basis – ranging from further admissions and surgery through to outpatient care and physiotherapy or other treatment in the community.
Often, you may have been left with an injury that means that you require care and assistance with day to day activities.
In less serious cases, this may be provided by your partner, other family members or a friend.
If so, the reasonable time spent by that person looking after you can be recovered, at an hourly rate, on their behalf.
In more serious cases, you may need professional assistance provided through a nursing or care agency and have people attending your home to assist you, initially, or on a longer term basis.
These costs too, are fully recoverable from the Defendant.
In cases of severe injury the cost of purchasing and/or adapting a home to cater for someone with disabilities may be necessary.
In cases of adults or children rendered severely disabled by medical negligence, it may be that live in carers are needed 24 hours a day.
You may need to make many journeys to hospital and other appointments on account of your injury and travel expenses are, of course, recoverable.
So are any other reasonably foreseeable outgoings such as extra heating, electricity, laundry, postage, adaptations.
Remember, if a loss, expenses or outlay has arisen, which would not have done, but for the negligence and your injury, then provided it is a reasonably foreseeable financial loss it is recoverable, together with interest.
At our first meeting we will discuss what special damages are likely to be recoverable in your case and may well ask you to start keeping receipts and a log of journeys and expenses.
General damages compensate you for non financial losses – ie pain, suffering, loss of amenity (inability to get out and about and enjoy yourself and do all the things that you would normally do) caused by the injury.
Contrary to popular belief, English Courts are not the most generous when it comes to awarding these damages.
For example, a young person rendered paraplegic (without any bodily function from the neck downwards) on account of negligence, whilst retaining full consciousness, would only recover general damages running to a few hundred thousand pounds.
When one hears of large awards in the media they are generally made up of special damages – the costs of looking after such a person for life, their lost earnings over a life time etc.
The amount that you will receive in general damages is based on the level, nature, extent and severity of your injuries.
These are gauged using 2 primary sources:-
Firstly, we look at a publication called ‘The Judicial Studies Board Guidelines’.
This is a source put together by the Judicial Studies Board, periodically, whereby, awards made by Judges in cases up and down the country, as regards different types of injuries, bracketed together for similarity, are recorded within the guide.
This guide is increasingly influential and will be the ‘first port of call’ for the Court or lawyers on either side assessing your general damages.
Secondly, beyond this, we have recourse to case law precedents – decisions made by Judges in cases similar to yours as to the level of damages that should be awarded for a particular injury.
Of course, on the one hand, no two injuries are identical.
On the other hand, they can be looked at in analogous terms and awards calculated accordingly.
This is still a contentious area, however, with Defendants wanting to ‘play down’ injuries and so it is important that we support your case with expert evidence from appropriate specialists who will probably need to see and examine you and then produce a report covering the history of your injury, how you are at the time they see you and what your future prognosis is.
Provisional damages are awarded rarely. There are available, however, to cover the situation where, due to negligence and injury, a patient has been left with a small but appreciable risk of developing a serious condition or deterioration in the future because of the negligence.
A classic example might be someone who has suffered a head injury but has not suffered epilepsy, since the injury, a few years on from it.
In those circumstances, the chances of any epilepsy are small – perhaps 1-2%.
If it does arise in the future, however, then it would, of course, be devastating for the individual.
In these, or similar circumstances, the Court has the power to award provisional damages – ie a sum of money, based on the assumption that the person will not suffer epilepsy – whilst allowing them to return to Court for further damages if they do end up being unlucky enough to have epilepsy befall them in the future.
It is important that provisional damages are not overlooked in handling your case if they arise.