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11 February 2015

“Compensation Culture” - behind the Daily Mail headlines

6 mins

We’ve all read the Daily Mail headlines about so called “crazy” personal injury claims. We’ve all heard MP’s publically denounce whiplash claims as fake.

Heck, we’ve probably all received the unsolicited texts, calls and emails from Claims Management Companies asking if we’ve had an accident in the past 3 years… as a personal injury solicitor, these unwelcome texts, calls and emails evoke a kind of rage in me akin to the phrase “all trains out of London Liverpool Street have now been cancelled”. But, have we all taken the time to look behind these headlines and ask why these awards are being made?

Contrary to common opinion, there are strict guidelines about the levels of compensation that people can be awarded. A good personal injury solicitor’s mantra and the aim of these claims is to “put the claimant back in the position as if the accident had never happened”. In reality this is of course impossible because we can’t magic away injuries. But the rules do mean that Claimant’s can’t claim whatever they want. Every penny has to be accounted for and has to be reasonable. Compensation is made up of general damages; an award for pain and suffering and also special damages; an award for losses that are very specific to you and the losses you have suffered.

Let’s take look at the strict guidelines relating to “general damages” element. The latest edition sets the highest possible award for a “very severe brain damage”. The absolute highest payment you can be awarded here is £297,500. This sounds like a huge amount of money, and it is but it will only ever be awarded in the most serious of cases. Imagine a 39 year old cyclist, hit head-on by a car who was driving on the wrong side of the road. As a result, the cyclist develops a very serious head injury and can’t ever return to work. He loses most of the vision in both eyes, can’t use his right arm and suffers psychiatric injuries. He has to live in an adapted house and needs 24 hour care everyday. His life expectancy is assessed to be reduced by 5 years and his injuries are deemed permanent. This man was awarded £235,000 for all of his “pain and suffering”. On top of this he was also awarded his very specific losses which would take into account his personal background, whether he was working and the type of care he needed. These specific losses can include things like medical expenses, loss of earnings and costs for care and assistance but to be claimed they need to be backed up by receipts, payslips, tax assessments and medical evidence.

Or imagine a 27 year old man who breaks his neck and is left paralysed in all four limbs after a car crash. He was a back seat passenger and subsequently confined to a wheelchair for the rest of his life. He will never be able to work and requires care and assistance with everything from eating to going to the toilet. He got £137,000 for his pain and suffering. Not really worth it?

Let’s use the court guidelines to analyse some of the less catastrophic cases that the Daily Mail love writing about.

£15,168 was given to somebody who had their elbow trapped in a Tube train” (April 2013)

In order to be awarded £15,000 for the “pain and suffering” of an elbow injury, it needs to be sufficiently serious. It probably involved surgery of some kind. The Claimant’s function will have been impaired permanently. The person might never be able to stretch his elbow out fully again or he might have been left with permanent numbness in his arm and elbow.

One case resulted in “£21,000 pay out and £5,200 in costs, after a visitor slipped on a ramp at Eltham Palace, breaking a hip” (April 2013)

This woman would have required hip replacement surgery. She would have needed physiotherapy after the surgery and probably quite a bit of care from family and friends before she got back on her feet again. There would have to be significant injury to the hip for a pain and suffering award of £21,000. If she was young enough, she might need further hip replacement surgery. If she was old enough, this might have exacerbated her osteoporosis.

Pupil awarded £6,000 for custard splash as playground compensation culture costs taxpayers £2million” (July 2011)

This student probably sustained scarring which will remain visible at conversational distances. For life.

A blind person was given £34,030 after being caught in an automatic door”  (April 2013)

Any number of injuries might have been caused here. The types of injuries that will attract an award of around £34,000 include; a fracture of the pelvis leading to permanent degenerative changes with the need for surgery, complete loss of sight in one eye, damage to the chest and lungs causing permanent continuing disability, impotence which is likely to be permanent or a severe abdominal injury causing an impairment of function and requiring a temporary colostomy and/or permanent restriction on employment and diet.

Now I’m not for a minute suggesting that this man became impotent after being trapped in an automatic door, but my point is that his injury must have been pretty serious for him to be awarded that much.

All of the examples that the Daily Mail and others so gleefully provide are about cases that have settled out of court. Out of court settlements are the norm now and ensure that cases remain proportionate and solicitors costs are low. The cases provided are therefore unreported and we can’t get all the juicy details. However, it’s not too difficult to breakdown their compensation using the guidelines set out above to assess compensation.

Yes, I am biased but this doesn’t mean that we should blindly read and listen to Claimant-bashing headlines about “compensation culture gone mad” without thinking about their injuries. Criticism is often levelled at the people who bring these claims. It is rarely levelled at the huge organisations like TFL or Local Authorities who fail to keep their customers reasonably safe. The bold statement that I am willing to make is that every single client of mine would forgo any and all compensation in a heartbeat if it meant not having the accident in the first place. We should remember that without a negligent act, there would not be a claim to bring in the first place.

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