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As solicitors who help clients after spinal cord injury, we frequently find ourselves confronting the stark reality that as litigators all we can ever achieve is the recovery of an amount of money that the law deems to be commensurate with the ‘losses’ associated with the injury. The sum awarded by a Court or agreed between the parties to a dispute is compensation. Compensation then is the remedy our area of the law is primarily concerned with.
In spinal cord injury cases the loss incurred is vast. Every aspect of the injured person’s life post injury has to be considered as against what it might have been but for the injury. That consideration demands specialist expertise and experience and will typically justify compensation sums running to several million pounds.
However, before the amount of compensation payable is grappled with, the injured person must first establish whether compensation is payable. Not every injury is inflicted by something someone else did or did not do – and given the vast sums of money at stake insurers and representatives of those alleged to have caused the spinal cord injury are robust in their efforts to defeat claims pursued against their clients. Of course, defending a claim allows the opponent some leverage later and closer to Trial where the person bringing the claim may want to accept a sum lower than they might be awarded at Trial to avoid the risk of losing at Trial and thus receiving a lower sum or nothing at all.
Clients are often curious about how the sum claimed as compensation is arrived at. The global sum claimed is made of a range of different components. Broadly speaking they can be broken down in to three distinct parts: PSLA, past losses and future losses
Firstly, the sum will include an amount assessed as being appropriate for the ‘pain suffering and loss of amenity’ the injury caused. Also known as general damages, this aspect of the compensation sum is assessed by reference to judgments in past cases involving similar injuries. There are very few cases that will merit awards for this aspect of the total loss as claims involving tetraplegia or very severe brain damage. A sum more than £380,000 would be unusual. Special difficulty arises in cases involving multiple injuries, but it is rare for the Courts to simply add up the sum of each individual injury per the amounts in cases reported on that specific injury.
It can seem at first that the pain suffering and loss of amenity must be the biggest part of the award, but in fact in a spinal cord injury case that is rarely so. How the total compensation sum climbs into the millions of pounds is explained by how two other parts of that sum are assessed – together those parts are known as special damages and reflect actual expenditure incurred (or to be incurred) as a direct result of the injury.
Past losses are often significant in a spinal cord injury claim that will almost inevitably take some time to get to the point where compensation is paid. Evidence of expenditure incurred, and income lost as a result of spinal cord injury up to the date of settlement will need to be gathered and submitted as ‘past losses’. That will include everything likely to be reasonably incurred from lost income and pension contributions to expenditure on care (including gratuitous care provided by friends and family), therapies, equipment, assistive technology, accommodation, and miscellaneous sums incurred on things such as travel costs. The extent of the past losses element of the compensation sum claimed will be a function of the length of the period over which the losses were incurred, and of course the extent of what was spent or what income was lost over that period.
In a spinal cord injury claim, the biggest element making up the total compensation sum is almost always the future losses sum. That involves presenting expert evidence opining on what the future expenditure or income loss is likely to be considering the injury. The costs of medical reviews, care, equipment, therapies, accommodation as well as lost income and earnings in comparison with what might have been the situation but for the injury are assessed alongside the likely duration over which those losses will be incurred. Life expectancy is clearly an important factor for most future losses, the more extensive the loss and the longer the life expectancy the more significant the sum of compensation will be.
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