Damages is legalese for compensation. One of the dictionary definitions of damage is: “loss or detriment caused by hurt or injury affecting estate, condition, or circumstance”. Although this is a very old use of words, it is still close to the mark.

In the real world, of course, damages, or compensation, means money, because money is the way our legal system hands out some measure of justice to people who have suffered injury and loss caused by the fault of another.

Clients often ask: how do you put a value on physical injury? The same clients will often say they would prefer to have the full use of their limbs returned to them, rather than be given a sack of gold bars. Unfortunately, we are stuck with what we have got, insufficient and full of contradictions that it no doubt is.

The legal principles of what damages should be paid fall loosely into two parts. Damages for injury called General Damages, and damages which are to reimburse specific identified financial loss, which are called Special Damages.

What you are entitled to be paid as General Damages is codified in The Judicial Studies Board: Guidelines for the Assessment of General Damages in Personal Injury Cases. This book is the bible that is used by solicitors, barristers and Judges. It provides brackets for all kinds of injuries. It therefore provides a way for all lawyers to try to be consistent – although there are always disputes.

In serious cases, Special Damages are usually far more difficult to assess. How long would you have worked for in a particular job before getting a promotion? How much would a taxi driver have earned if he had been able to work over the Christmas period? How can you assess the amount of time spent by friends and family who helped you when you were incapacitated?

The test for all losses is the but for test – but for the accident would you have had to pay the expense? This sounds simple but often isn’t. There are rules and there have been important cases that try to give guidance on what can be claimed and what falls outside the but for test.

What is always key is evidence. If you cannot prove a loss, why should the other side pay? The golden rule is KEEP RECEIPTS FOR EVERYTHING.

A second golden rule, is that if you think that you have suffered a loss but are not sure whether you are legally entitled to be reimbursed, tell us about it. If you don’t tell us about the loss we cannot either claim it back for you or advise you why it may not be something you are entitled to be reimbursed for.

Whatever you are awarded, or whatever the negotiated settlement amounts to, it will almost certainly be modest. Damages in England and Wales are not comparable with jury awards in USA.

Article posted on Wednesday, February, 9th, 2011 at 3:26 pm

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