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This is made up of two elements:
1) Compensation for your pain suffering and loss of amenity, called General Damages
One of the most important factors in deciding the level of your compensation is the duration of your injuries. As a rule of thumb if the injury lasts more than 12 weeks (even if the symptoms become intermittent towards the end), it is usually well worth claiming compensation. The longer the effects continue, the greater will be the amount of the final compensation award.
Other factors which effect the level of award are: whether you had to take any time off work, whether had to get any treatment, whether and to what extent the injuries prevented you from undertaking normal daily tasks, sports and passtimes etc.
In fact with a typical Whiplash strain to the back or neck there is often an acute period when the pain (which can take 24-48 hours to come-on) is constant and at its worst. During this period, which can last anything from a few days to several weeks or even longer, you might have to take time off work. There after the victim usually makes a gradual recovery as the intensity of the symptoms lessens and sometimes become intermittent eg effecting the victim at the end of the day or in the mornings, after lifting or other exertion etc. It is not unusual for it to take 6-12 months or even longer for a full recovery to take place.
If the victim had pre-exisiting problems such as arthritis in the joints, or a history of previous accidents, it is not unusual for the individual to be vulnerable to a more severe and protracted injury than would otherwise be the case. An RTA will often aggravate or accelerate natural "degenerative" changes caused by arthritis. The insurance company must fully compensate such a victim, "frailty" is no defence for the insurer!
We will obtain a medical report from a specialist who will prepare a full report regarding your injuries. The examination usually takes place about 3 or 4 months after the accident. We will then normally be able to negotiate a final settlement based on the doctor's prognosis. In a minority of more serious cases, further tests, medical re-examination, scans, and/or referral to other experts etc may be required before a full picture of the injuries can be built up.
The amount of compensation is based on previous Court cases which are regularly summarised by an official body called the Judicial Studies Board. Typical level of awards for neck & back injuries are:
Less than 12 weeks. Often just a few hundred pounds
6 months £1200 - £1500
12 months £1800 - £2400
2 years £3700-£4000
[NB overseas clients *CLICK HERE* for our free currency converter]
Permanent scarring/ cosmetic injury will often merit an award in its own right so please provide us with a good photograph of any scars even if quite small. (For more information about scars try the web site of the American Society of Plastic Surgeons.)
You may find it useful to keep a diary recording on a daily or weekly basis how your injuries effect you.
2) Specific losses and expenses incurred because of the accident, called Special Damages
Please keep a careful note of these and retain any proof such as receipts etc. The sorts of things that you can claim include:
Insurance excess/ Repairs/ total loss claim/No claims bonus (split liability cases)/Damaged clothing /helmet/ other damaged property/towing/ recovery charges/Storage/Wasted petrol in tank/Wasted car tax/Loss of earnings/Car hire charges/"Loss of use" if without a car as a result of the RTA/Road side or temporary repairs/Taxis/travel expenses eg to medical appointments/Prescriptions /medicines/Private treatment eg physiotherapy
In serious injury cases you might also need to claim for things like nursing care and future treatment costs, home adaptations, special transport costs, care provided free by relatives etc. Fortunately this does NOT apply in the vast majority of RTA cases!
We may be able to apply for an interim payment to help you with your immediate expenses eg vehicle damage, loss of earnings, and treatment costs.
IMPORTANT NOTE ABOUT MITIGATING YOUR LOSS
You have a duty to mitigate (ie keep to a minimum) your loss and damage. For example if you are injured in an accident, you should return to work as soon as you are fit enough and not incur unnecessary loss of earnings. Similarly any storage charges for your vehicle or replacement hire charges should be kept to a minimum. Do not hire a replacement car if your damaged vehicle is still driveable or if you can get a courtesy car from your own insurers, the repairing garage or the other driver’s insurers. Stop hiring any replacement car (at the latest) as soon as your vehicle has been repaired or when you receive your total loss settlement
MEDICAL TREATMENT COSTS
You can claim for the cost of any private medical treatment for injuries sustained in the accident provided that the cost is reasonable and that you obtained the treatment on the advice of a duly qualified medical practioner. You do not need to use the NHS if you prefer to have private treatment. Unless the treatment is urgently required we normally advise our clients to provide to us an estimate for any proposed private treatment so that we can ask the third party insurers for their approval and for an interim payment to cover the cost of the treatment. Sometimes the third party insurers will offer to arrange treatment for you.
A WORD ABOUT LOSS OF EARNINGS
If you are making a claim for loss of earnings or loss of profit this will normally be based upon the figures net of tax and national insurance. This is because personal injury compensation is normally exempt from tax and national insurance. A deduction is also made for any sick pay paid. Some employment contracts give the employer the right to claim a refund of sick pay if the employee makes a compensation claim; you should let our panel solicitor know if this applies to you so that they can make a claim for this against the other side. If you are a partner in a partnership business and have had to take time off work then please ask us for advice.
You can also claim for partial loss of earnings eg if you have to reduce your hours. In appropriate cases, where there is long term injury, you may be able to claim for future "handicap in the labour market" eg if your injuries might hold you back in the future or if they could make it difficult for you to find a new job if you had to.
SPLIT LIABILITY
If the accident was partly your fault and partly the other driver's fault, or you did something which made your injuries worse (eg did not wear a motor bike helmet and suffered a head injury whilst riding a motor cycle) your compensation (or part of it) may be reduced by a percentage to reflect the degree of your fault.You will still be entitled to some compensation!
REPAYMENT OF STATE BENEFITS
All accident claims are automatically reported to the Department of Work & Pensions ("DWP"). The reason for this is that under the DWP "CRU" Regulations, the DWP may be entitled to deduct an amount equal to certain benefits paid to you as a result of the accident from certain parts of your compensation. For this reason you will need to provide your National Insurance Number. The DWP will issue to you a certificate stating the amount of any such benefits paid to you.
Example: if you are paid £1000 incapacity benefit because you cannot work due to your injuries and you are awarded £9000 for your loss of earnings, you will get £8000 compensation and £1000 would be paid directly back to the DWP. However, the good news is that there is never any deduction from the compensation awarded to you for your actual pain and suffering (general damages).
If you receive a very large injury award (eg if you suffered a really serious injury) this could effect your future entitlement to benefits. If so we may be able to shield the compensation by putting it into a Special Needs Trust. Money held in a Special Needs trust is disregarded when assessing your eligibility for welfare benefits and local authority care.
MORE INFORMATION ABOUT THE JUDICIAL STUDIES BOARD GUIDELINES FOR DAMAGES FOR PAIN AND SUFFERING.
The Guidelines are published by the Oxford University Press. Because of copyright and database right laws, we cannot reproduce the Guideline figures for you, however you can purchase your own copy using this external link: Buy JSB
