Nicola Edgar

This is a challenge faced by personal injury lawyers when advising clients on the value of their claim. If an individual has suffered an injury or accident which was not their fault, they may be entitled to make a claim for compensation. One element of this claim is ‘solatium’, which attempts to take account of the pain and suffering experienced by the injured person. In order to provide consistency in awards for solatium, the Judicial Studies Board prepare guidelines which provide an assessment of the level of award for each type of injury, taking account of recent court decisions. The 15th Edition of these guidelines was published at the end of November providing practitioners with updated figures.

Whilst not law, they provide a vital reference point for lawyers and the judiciary when considering the appropriate level of compensation. The loss of one hand is valued at up to £93,540. This may initially seem like a significant sum, however, when faced with the practical and everyday realities of living with one hand for the rest of your life, is it enough? Loss of one foot is valued at a similar level to the loss of one hand, whilst loss of both feet or both hands is valued at up to £171,920. Would you consider your taste buds or your sense of smell to be more important to you? It may surprise you that loss of taste is valued at up to £21,320, whilst loss of smell is more valuable at up to £28,070. Loss of both these senses is valued at up to £33,430, highlighting that often where there are multiple injuries the cumulative award is lower. An award for a female rendered infertile due to injury or disease is valued at up to £144,520. An award to a male for total loss of his reproductive organs is £131,290. Deafness is valued at £93,540, whilst blindness in both eyes is valued at the significantly higher figure of up to £229,260.

These figures disguise the complexity of personal injury litigation as they are simply guidelines and fail to take account of the individual’s circumstances. Ultimately, an award for solatium should take account of the injured person’s experience and the effect it has had, and will continue to have, on their day to day life.

A further complicating factor is that it is often the case that the injured person will have suffered a variety of injuries to various parts of their body. In these circumstances, multiple expert witnesses will be required to comment upon each aspect of the injuries, with consideration of the interplay between the various injuries and the long term impact. There are not just physical injuries to take account of, but injuries which cannot be seen such as those which impact on mental health.

What personal injury lawyers seek to do is, as much as is possible, put the injured person back in the position they would have been in had the accident not occurred, to compensate for the loss. In my opinion, this is impossible for personal injury clients. Their life will often have been significantly changed and, for that reason, even the most successful outcome in a case will be bittersweet for those involved.

Nevertheless, although the litigation process is often unavoidably stressful, time-consuming and lengthy for the person, it often facilitates positive changes to their life. Further examination of injuries by medical experts may lead to additional treatment recommendations not explored by previous consultants or perhaps unavailable on the NHS. The cost of these investigations can be included as part of the claim.

The litigation process allows for a thorough analysis of all losses resulting from the accident. In addition to solatium, these may include: (1) past and future loss of earnings; (2) services to cover the cost of assistance provided by family; (3) out of pocket expenses such as travel costs, treatment costs, adaptions to property or mobility aids; and (4) future costs such as nursing care or special equipment, for example, prosthetic limbs which may require to be regularly replaced.

It is crucial that all losses are included in the claim as once an award is made, it will not be possible to make additional claims at a later date. It is also vital to protect these funds by seeking the advice of a financial adviser. A discount is applied to awards which include future costs on the assumption that the funds will be invested and generate an income, so this must be done to generate the correct level of compensation over time.

When an individual is deciding whether to pursue a personal injury claim, the first step is to consider the value of the claim. Morton Fraser has recently launched an online Compensation Calculator which allows an individual to check the potential value of their claim for solatium. Whilst some clients are uncomfortable with pursuing a personal injury claim and raising court action, the reality often is that due to the nature of the injury and the financial implications for them and their family, there is no alternative.

Nicola Edgar is a senior associate at Morton Fraser LLP. This article was originally published in The Scotsman on 2 December.