Personal injury compensation for joint and limb injuries is far more than just the cost of treatment. Scottish personal injury solicitors at firms like Watermans tackle these claims on several heads of loss, each representing a different type of impact that a serious injury claim should include to demonstrate the true value of the injury.
Solatium: Compensation for Pain and Suffering
Solatium is the part of a Scottish personal injury compensation claim which relates to the pain, suffering and loss of amenity resulting from the injury itself. It is based on the Judicial College Guidelines, which provide indicative ranges for various types and severities of injury and Scottish case law for similar injuries. Where within the range a solatium award will fall will depend on the severity of the injury, the length of time the symptoms have existed, the prospects for recovery and the extent to which the injury has impaired the claimant’s ability to enjoy ordinary life.
Loss of Earnings: Past and Future
If an injury has resulted in an absence from work, a decrease in working capacity or a forced change in employment, then the financial effects are recoverable as a separate head of loss. Past wage loss is from the date of the incident to the date of settlement or proof. If future loss of earnings is involved, the assessment is more complicated, involving an analysis of the claimant’s earning potential before the injury, the medical prognosis for their earning capacity, and actuarial multipliers that account for the likely duration of the loss. Future earnings loss can be the largest single component of a claim for younger claimants with many years of working life remaining.
Care and Assistance Needs
A significant injury to a joint or limb often requires practical support that the injured individual was previously able to provide for themselves. Even when a family member or friend provides that care and is unpaid, Scottish personal injury law still considers it a recoverable loss. Simply because a family member or friend provided it, it is valued at the notional cost of equivalent professional care rather than at zero cost. Future care needs are determined where the prognosis indicates that assistance will be needed, by reference to evidence of care costs, and are projected over the relevant period using appropriate multipliers.
Loss of Employability and the Disadvantage Award
Scottish courts may award a sum for loss of employability where an injury has not rendered a claimant incapable of earning, but has put him/her at a disadvantage in the labour market compared to that which existed before the incident. This is because if the claimant loses their job in the future, it will be harder for them to find a similar job than if they were not injured. It is a head of loss separate and distinct from continuing earnings loss.
Necessary Expenses and Adaptations
Special damages can be recovered for prescription costs, physiotherapy, specialist consultations, travelling to medical appointments and any changes to a home or vehicle needed because of the injury, provided it was reasonably incurred as a result of the injury. Future medical costs, such as any additional surgeries recommended by medical evidence or continued therapy the claimant needs to maintain their function, are evaluated based on medical opinion and cost relative to current or projected treatment costs.
The Role of Medical Evidence in Valuing the Claim
The only way to value a personal injury claim is through a thorough medical assessment by properly qualified specialists. In the case of joint and limb injuries, it usually involves an orthopaedic surgeon describing the nature and severity of the injury, the treatment received, the patient’s current status, and the prognosis for improvement or deterioration. If the injury affects employment, occupational health, or vocational expert evidence may be necessary. The strength of the valuation and the defendant or insurer’s willingness to pay a realistic amount without going to proof are directly related to the quality and completeness of the medical evidence.
