Financial Losses From Accidents
Special damages reimburse you for your financial losses and any expenses you have had to incur stemming from the accident. General damages compensate you for your injuries to include pain, suffering and loss of amenity.
There are two sides to any personal injury case. It is for you (or us) to prove who was at fault and to assess the amount of loss (damage) incurred as a result. Damages are usually assessed on a full basis and then reduced to account for any compromise on fault (i.e. if the accident was the fault of both parties equally then each recovers 50% of the value of their claim).
There are 3 simple rules that apply to being able to claim for financial loss as follows:
- The loss must arise as a result of the accident for which you are claiming;
- You must be able to prove the loss. Written evidence is best, although witness evidence can be used, and ideally you should keep all paperwork including bank statements, payslips, a damages diary and taxi receipts;
- The loss must be reasonable and reasonably foreseeable. If you could spend £10, avoiding a £1,000 loss, then do not be surprised if you only recover £10.
Practical examples of how these apply in practice, although it must be remembered that nothing is ever clear cut, are as follows.
Most insurers expect the damaged vehicle to be repaired usually within 42 days. During that time they expect to pay out for either loss of use or hire vehicles, but will not pay if you had another vehicle that you could have used (as they may argue you have suffered no loss). They will normally arrange an inspection of your vehicle before it is repaired. They will probably expect you to move your vehicle to a place of free storage and if you do not get the repairs done promptly they will try to refuse to pay for any ongoing losses caused by the fact you do not have a vehicle.
If you are off work as a result of the accident or lose your employment and are not paid you can claim for the loss, (which is paid net of tax and national insurance). It is automatically deemed reasonably foreseeable that if you are injured you may not be able to work and may lose money as a result. However, if your employer pays you in full, then while they may be able to claim this back (and would ask you to do this for them) you have no loss to claim. If you lose money but then go back to work and work extra to catch up any loss then again you have no loss to claim for (but could claim for loss of leisure time).
This includes wages that you have already lost and, if appropriate, income that you might have received in the future, but will not now do so because of the accident. We calculate your losses by obtaining details from your employer of all money paid to you for a 13 week period prior to the accident and since the accident.
If your employer has paid you anything while you were off work, eg contractual sick pay (but not Statutory Sick Pay) and your employment contract requires you to reimburse this, we will claim it on your behalf so you can reimburse your employer from your compensation.
Calculating your anticipated future loss of earnings can be more difficult, but is usually only necessary if your injuries are very severe. In such cases we might need to assess the level of any pay increases, promotion prospects and other benefits (eg pension) that you would likely have enjoyed if the accident had not happened.
If you are self-employed we will need disclosure of your accounts and will have to calculate your financial losses to include loss of profit and/or ongoing loss of profit and any future loss of profit
You have an absolute entitlement to obtain private treatment and ask the other side to pay for this. This is an exception to the reasonableness test. However, they will often try and control this by refusing to let you have money in advance to pay for any treatment you need and will often try to argue that because your treatment is available on the NHS you should then you should use that service. You have a right to obtain private treatment under Section 2 (4) of the Law Reform (Personal Injuries) Act 1948.
If you are injured and there is a real risk that because you have no income and you may lose your home, you must tell the other side as soon as possible as it is regarded as not reasonably foreseeable. By telling the other side of this risk you make it foreseeable.
You can claim either the fare paid (eg for bus, train or taxi) or at the rate of 45p per mile and any parking fee, for journeys taken because of the accident, for example:-
- Visits to your GP, hospital or other medical practitioner providing treatment.
- Attending the appointment with the medical expert
- Other journeys, but you will need to state why each one was necessary
- Journeys by close relatives to visit you in hospital.
Hospital charges for emergency treatment.
Prescription charges and the cost of non-prescription items, eg pain killers. Surgical supports, bandages, tubigrip.
Treatment provided by physiotherapists, or other practitioners on a private basis.
The cost of treatment in a private hospital might also be recovered if the NHS waiting list is too long.
Care provided by Social Services or a private agency.
Care provided by family or friends, claimed at an hourly rate (eg helping you with cooking, cleaning, personal hygiene, etc).
Other expenses or items of specific loss
These items can include:-
(a) Repair or replacement costs for damaged clothing, jewellery or other belongings. (b) Items bought because of the injuries, for example:- larger clothes or shoes while in plaster. (c) Additional utilities costs because you had to spend more time at home than normal. (d) Additional telephone and postal costs in contacting people involved in the claim. (e) Vehicle repair or storage costs and any policy excess, following a car accident.
These items can include:-
(a) Costs incurred in employing others to undertake domestic cleaning, decorating, general DIY, gardening, etc that you would have dealt with yourself but were unable to because of your injuries. (b) Sums lost in having to cancel activities or holidays. (c) Costs incurred in obtaining specialised equipment or in adapting your home or car if your injuries were particularly severe.
Interest can be claimed on the items included in the Schedule of Special Damages. It is not always possible to recover every item that you claim, but the more evidence provided in support of each specific item, the more chance you have of recovering it.