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Compensation: A Guide to Damages

February 02, 2017

In every clinical negligence claim there are two elements of damage. The first, of course, is the injury to the person that has occurred as a result of someone else’s negligence. This is commonly known as “personal injury”. The second element is the financial losses incurred as a result of that injury. These are often called “special damages”. There must always be an element of personal injury in every claim, but injury can occur without any financial losses being sustained.

Proving personal injuries in clinical negligence can be complicated because you may have already been receiving medical treatment before the negligence has occurred or would have required the same treatment anyway. We therefore have to separate the injury you have suffered as a result of the negligence from the injury or illness for which you were or would have been suffering.  

To give an example, in a case where there has been a failure or delay to diagnose Cancer you will not be compensated for having Cancer.    If there had been no negligence you would still have had Cancer and required treatment. You are entitled to be compensated for any additional problems that the delay has caused.  If, at the time of diagnosis the Cancer was Stage 3 or 4 but would have only been at Stage 1 or 2 if diagnosed promptly, then you may have suffered more pain and/or more symptoms as a result of the delay. The treatment you are offered could well be different and less invasive if the disease was caught early. Generally your chances of recovery are better when diagnosed early.    If, however, the delay would have made no difference to your symptoms or the treatment you would have received, or your prognosis for the future then you will not be entitled to any compensation as there has been no additional suffering caused by the negligent delay.      

Putting a monetary value on the personal injuries suffered is done very much on a case by case basis because no two people are the same. It is dependent upon what you personally have suffered and what you can no longer do, though there is some consistency and comparison between cases involving similar types of injury. This is why a report from a medical expert is essential, to provide an independent review of your injuries. The Courts and lawyers handling your case decide the appropriate figure you should receive by looking at similar cases where awards have already been made and by taking into account your personal circumstances. To help with this, there are published Guidelines which are based on previous cases and which give a rough starting guide as to the likely level of damages that should be awarded. The figure is then honed based on the facts of your case.

Turning to the financial losses (or special damages) these are awarded in addition to any money awarded for personal injuries. It is important to keep a careful note of what you have had to spend or have lost as a result of your injury as any losses must be documented in some form or another, by way of receipts, invoices, etc. If you have been unable to work and have lost earnings as a result of the negligence then this can be recovered and proof can be provided by way of payslips, tax documentation or a letter from your employers. Other types of losses for example can be paying for medication, travelling to hospital appointments and having to pay to park. You may also require some form of personal care from a loved one and this can be documented by obtaining a witness statement from that person, which is signed with a Statement of Truth.

One thing to remember is that if you have received any Social Security benefits as a result of the negligence the law requires those benefits to be repaid. You may receive a disability allowance or some form of income support or sick pay because you cannot work. If, as part of your claim, you also seek recompense for the lost earnings you would otherwise have received, then you must repay those benefits out of any monies you are awarded for that part of the claim. The idea of compensation is to put you back in the position you would have been if the negligence had not occurred. If you recover all of your lost earnings and have also received benefits then you would have received more as a result of the negligence than you would have otherwise. This is called double-recovery.

At Metcalfes, our team of experienced medical negligence solicitors are here to sensitively help guide you through any potential claims you may have. We deal with all areas of medical negligence. If you think that you or a loved one has suffered as a result of medical negligence, we may be able to help. Please contact us on 0117 239 8012.  Alternatively, you can email us by using our online contact form and we will be happy to discuss your potential claim with you.

Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Compensation: A Guide to Damages

Gillian Clark

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