Chap 9 Valuing And Investigating 3rd P Claims

Question 0

Special damages concern the financial loss.

Heads of damages

Answer 0

Prescription costs
Aids and appliances costs
Cost of care - past and future
Accommodation costs - past and future
Rehab costs
Out of pocket expenses

Question 1

General damages - compensate for actual injuries - not exact finanical calculation
Heads of damages;

Answer 1

Pain suffering and loss of amenity - based on expert med evidence, injury, current and future disability, pre ex. Injuries will be reviewed in line with the judicial guidelines.
Separate head of claim
Handicap in the labour market- long term future potential of handicap in labour market
Future loss of earnings, loss of congenial employment eg their injuries have forced them to give up their pre ax job
Future cost of care- special equipment
Loss of pension
Loss of use of motor vehicle

Question 2

General damages, more indepth

Answer 2

Subjective test,what is the pain and suffering for a particular claimant, scar might be worse for young woman than old man.
Compensation can be received even if claimant unconscious
Loss of amenity takes into account claimants former lifestyle

Question 3

General damages quantification

Answer 3

No precise way of quantifying, based on case precedents
To assist judges the judicial guidelines published guidelines for thr assessment of damages in personal injury cases, sets broad parameters. Other notable sources for personal injuries
Kemp and kemp - quantum of damages
Current law (make an allowance for inflation
Personal injuries and quantum reports
Butterworth personal injury service

Question 4

Gen damages - reviewing med report

Pre ex disability, acceleration cases

Answer 4

Med report - time between ax and report, severity, age and sex of claimant.
Pre ex - expert will have to identify the true extent of the suffering caused by injury
Acceleration case -egg shell skill syndrome where we have to take the claimant as we find them, this relates to where the accident has brought forward the symptoms of pre ex, common in back and neck

Question 5

Handicap in the labour market - smith and manchester claim:claim difficult to quantify, court must do so on own merits;

Answer 5

Claimant damaged by ac but still in same job, earnings at present unaffected but if they go for a new job they would have difficulty competing in labour market for same pay., claimant must prove this.
Must be real speculative risk of losing job at some time before the end of working life
Can apply to minors - child 5 with one eye award
Calculation is based on a multiplyer of the earnings

Question 6

Future loss of earnings, in order to assess for future losses courts have developed a calculation based on multiplcands and multiplyers. This provides a lump sum taking into,account

Answer 6

The contingencies of life

The accelerated receipt of a sum which the claimant then has available for investment

Question 7

Multiplicand

Multiplyer

Answer 7

Multiplicand- difference between annual neg income and pre ax net income. May take into account potential future wage rises etc
Multiplier- background on job, overtime etc to be established, dependent on age, occupation, agree the multiplyer by using the ogden tables

Question 8

Loss of congenial emoloyment

Some cases a seperate award is made under this head

Answer 8

Award more likely if job vocational eg nurse, doc, priest

Question 9

Special damages - quantifiable and arise between ax and date of trial (most common head is loss of earnings up to date of trial

Answer 9

Main heads of claim
Items specific to loss, eg clothing - only paid for once
Loss of earnings up to date of trial
Med expenses prior to,trial
Value of services provided by a 3rd party prior to trial
Expenses relating to cost of living

Question 10

Special damages - ( most common head of damage in personal injury claim) value of services provided by a 3rd party prior to trial

Answer 10

Necessity -based on med evidence
Period of care - how long restricted
No of hours - what extent will be required

Question 11

Loss of earnings up to date of trial (most common head under special damages) how is it calculated¿ñ

Multiply the pre ax average net weekly wage by thr number of weeks the claimant has sufferred a loss following the ax

Answer 11

Calculating the average weekly wage loss

1. Obtain the earnings for the 13 wk period prior to ax
2. Ensure reflect true earnings, eg overtime, bonus, seasonal fluctuations
3. Make any adjustments
4. Calculate net. Average weekly wage after tax

Might be useful to calculate earnings of a colleage if role is new or no established pattern of. Earnings yet

Question 12

Payments by employers

Treatment depends of the contract and tortfeasor

Answer 12

1 emploYer pays in line with contract(employee doesnt have to repay) - have to be deducted when calculating loss of earnings
2 same as above but employee has to repay out of any damages- payments should not be deducted
3 employer is not a tortfeasor makes a payment exgratia -charitable payment not to be deducted
4 same as abive but employer IS the tortfeasor - sum to be deducted
5 claimant receives stat sick pay - shouldnt be deducted unless provision in contract for this to be repaid

Question 13

Other payments that can or cant be deducted from loss of earnings

Answer 13

Redundancy payments can be deducted from damaged, pensions can not be

Question 14

Fatal claims
2 acts govern such claims (LRA)
(FAA)

Answer 14

Law reform act -provides the estate of the deceased with a right of action for damages, out of pain and suffering, loss of amenities, loss of income, special damaged or loss of property. No award if person dies immediately. Must be evidence of suffering before death, if aware of impending death it is awarded.

Fatal accident act- dependency claims
Dependency claim for financial losses suffered by defendents
Award for bereavemenr of damages
Claim for funeral expenses if paid by defendents (adopted children treated as natural children), bereavement award is 11,800¡ calculating dependency has to be proved and be physical not just emotional. Any loss attributable to a business is void

Question 15

Fatal accident law - dependency claims

Answer 15

Takes into account any expected promotion, redundancy etc has to be evidenced tho
Heads of claim to be included in the multiplicand
Household maintenance, housekeeping or looking after children, caring for a sick relative, perks of employment (what the family has to pay for)
Life ins and pensions not to be taken into account
Con neg would reduce the amount payable

Question 16

Provisional damages - assumption of future deteriation

Answer 16

Claim must be pleaded
Future of claimant must be that a serious disease or deterioration will occur
Claimant must apply for additional damages within the period specified by the court
Arthiritis not appropriate for provisional damage

Question 17

Rehab early intervention a must 3 options

Answer 17

Medical -dealing with the injury / disease
Vocational - finding alternative employment
Qualitative - making most of claimants impaired abilities

Question 18

Investigating thr claim, provision must be made for

Answer 18

Defense costs, claimants costs, coverage costs

Compensation recovery unit - benefits paid by dwp can be recouped. By being offset against future loss of earnings. Costs incurred by ambulance, nhs, claimant should not be compensasted twice.

Financial advisors will tell claimant to opt for ppo than lump sum

Question 19

The reserve

Answer 19

To be reviewed when evidence is received from
Neurosurgeon
Psychiatrist
Rehab specialist
Care specialist