Personal injury claims can be complicated to value, and unfortunately lawyers sometimes get it wrong, meaning that some claimants receive less than they are entitled to, as their claims are under-settled.
The compensation payable in personal injury claims is typically made up of ‘special’ and ‘general’ damages. Special damages cover losses that can be measured, and general damages relate to losses that are calculated on the facts of each case.
Calculating special damages is a matter of working out the losses suffered by the victim up to the date of the trial or the date the claim is settled. They typically include lost earnings, medical expenses, care costs, and any other expenses relating to the cost of living with disabilities arising out of the injury. They can also include compensation for special medical equipment costs, as well as DIY, gardening, and adaptations to the home or workplace.
General damages are more difficult to value as they are losses that are expected to arise in the future. They also include a sum of money to compensate the victim for the ‘pain, suffering and loss of amenity’ suffered as a result of the injury. This figure is calculated with reference to previous cases, and a sliding scale system that runs from the very minor, through to life-long conditions.
Problems can arise if claims settle without the parties going to court because agreements as to compensation are typically settled on a ‘full and final’ basis. This means they cannot usually be overturned in the future, even if the claimant proves they should have received more compensation.
Settlements are reached on the basis of evidence, including medical reports, which set out a prognosis for the claimant’s future health, and which the claimant’s solicitor relies upon to value the claim. Of course, whilst the solicitor can produce a realistic valuation of the claim, there is no guarantee of future accuracy. In essence, the solicitor will have done their job properly if they have obtained all relevant evidence, included claims for all relevant areas of loss and produced a figure based upon the recognised sliding scale for pain, suffering and loss of amenity, and similar cases.
Under-settlement typically happens when the lawyer dealing with the case does not have the expertise or skill to handle the matter properly. Alternatively they may have too many cases, and lack the time to give each one the care and attention required.
Although settlement agreements cannot usually be over-turned, you may be able to bring a professional negligence claim against your former solicitor if you have suffered financial loss.
If you believe that your personal injury claim may have been under-settled, please do not hesitate to contact a member of our specialist personal injury team for a no-obligation, free of charge conversation to assess your circumstances on 0845 287 0939. Alternatively, please complete the online application form.