This article addresses the legal methods and means of how to value a personal injury claim with a view to informing you about the legal processes involved and the processes involved and ultimately, how to assess what your claim is worth. No doubt every Solicitor uses a different method, but this Solicitor’s method may be of assistance to laypeople in getting an insight into how the process works. This article should not be confused with legal advice – every case is different so every case has to be assessed individually.
One of the most frequent questions that is asked by any client who has suffered a personal injuries is the question “what is my claim worth”. Before attempting to answer “what is my claim worth?”, you or your Solicitor will need to have a clear picture as to how long the injury in question is going to take to recover – the recovery time is a very good indicator of the seriousness of the injury. Obviously some injuries are permanent but usually this needs to be confirmed by medical evidence.
According to the Book of Quantum (2004 version applicable when article written) which is published by a State Agency, a person who sustains whiplash induced soft tissue injuries to the neck can usually expect general damages of up to €14,400. In relation to soft tissue injuries to the back, this is €16,300. These figures increase depending on the likely recovery time. The Book of Quantum is available online here: http://www.injuriesboard.ie/eng/How-to-make-a-claim/Estimate-your-claim/
The Book of Quantum states that person with a broken bone in their leg can expect to receive somewhere in the region of €19,600.00 to €35,000.00 if they have substantially recovered. However these figures are extremely general and cannot and do not take into account how the injury has affected a particular person, any loss of earnings, medical expenses or other long term implications of the injury.
The starting point for a solicitor when valuing a claim is clearly a description of the injuries from the client directly and a full description of how the injury affects the client on a daily basis and how the client believes the injury will affect them in the future. It is helpful if a client is able to write this out for themselves rather than suffer in silence. For example, a mother of young children who is unable to pick up her infant due to a bad back needs to make this known and to make known the impact this has on her. An avid sportsman who has had to give up his much loved sport will not be compensated for that additional impact if he suffers in silence.
Once the Solicitor has full details of the impact of the injury from the client’s point of view, the solicitor then needs to obtain a comprehensive medical report from a relevant medical practitioner. Where the injury complained of is soft tissue injury, a report from the client’s G.P. will normally suffice. Where there is a broken bone or other bony injury then a report from an orthopaedic consultant will normally be required. Where there is ongoing pain or nerve issues a report from a pain specialist or neurologist will normally be required. Where there is a psychological injury, a report from a psychiatrist will be required. Where there are burns or other disfiguration then a report from a plastic surgeon will normally be required. There are as many areas of medicine as there are types of injury.
It is normal practice in personal injuries claims to obtain a report from the treating medical expert. In some areas specialists medical reports need to be obtained from specialist consultants particularly in the area of psychological damage and medical negligence. On occasion the treating medical expert is considered by the solicitor to be unsuitable or on occasion simply refuses to provide reports or expert testimony when matters appear in Court. This happens most often in the area of medical negligence. In those circumstances the solicitor will have to make the necessary arrangements to obtain a specialist medico legal report, often from outside Ireland – all this is necessary to establish what a claim is worth.
Once the solicitor has the full background from the client together with a comprehensive medical report, the solicitor will normally be in a better position to put a value on a claim. Better position, but there are still gaps. This is still not the entire picture. The defendants will have medical reports which may not yet be available to the solicitor. They may be at complete odds with the medical reports from the client’s treating medical experts. The solicitor may also not have the defendant’s Defence and may not be aware of what they are saying as regards liability. The defendant may intend to strenuously resist the case on any one of a number of possible grounds. It might be the case that they have evidence that the accident was the claimant’s own fault. It may be that the claimant was speeding and caused the accident. It may be that they will argue that the claimant was partly to blame such as by not wearing a seatbelt or perhaps having had the accident he failed to follow medical advice such as undergoing physiotherapy. To an extent then, the valuation of a personal injuries claim is difficult without seeing the defence of the other side and their medical reports. Until these are available, the Solicitor looking at the claim may be looking at only half the picture. Nonetheless, experience does serve to fill the gap or paint the rest of the picture in many cases.
Valuing a personal injuries claim is therefore an art rather than a science. Another variable (where the case goes to Court) is what judge is likely to hear the case. Judges have varying views on the impact of different injuries. Solicitors’ advice on valuation therefore tend to vary once it is known what judge has been drawn. This variation can be surprisingly significant.
The best way to value a claim is therefore to provide a range for clients and to assess the probability of different ranges becoming reality. The first thing a solicitor should say is the typical range as per the Book of Quantum for an injury of the type sustained. The second aid is similar cases and what awards those comparative cases have received. Loss of earnings, medical expenses and other out of pocket expenses should hopefully be a fixed sum and can be accurately calculated. The final aid to valuing a case is the chance of success. Only occasional cases have close to a 100% likelihood of success. There is normally some factor that the Defence can throw up to try to cast some blame on a plaintiff or doubt on his case or the cause or severity of his injury. When this occurs the client should seek advice from his Solicitor of his chances of success. The concepts of the Best Case Scenario, Worst Case Scenario and Most Likely Case Scenario are all helpful in analysing and valuing possible outcomes and answering the question – what is my claim worth?.
Finally I would add that when valuing a personal injuries claim your solicitor is acting as your advisor. Your Solicitor can give you the benefit of his or her experience and research. It is up to each individual client whether they wish to accept that advice. I would suggest however that if they do intend rejecting that advice that you have a very clear reason for doing so. Carrying out this exercise in advance of any negotiation will assist both the client and their solicitor in approaching the negotiation and setting the parameters of what they will and will not accept in any settlement discussions.
It is not permitted in Ireland to charge fees based on a percentage of any award.