Quantum Made Simple 2017 - Dr Mark Burgin
25/07/17. Dr Mark Burgin BM BCh (oxon) MRCGP explains how McKenzie friends can assist Litigants in Person calculate the amount of damages claimed (quantum).
Quantum is made of two parts; Special Damages which can be quantified easily such as work and caring and General Damages for pain, suffering and loss of amenity (PSLA).
Lawyers use a complex system of comparison with previous cases to determine the likely range of values and then negotiate a final figure, this article suggests an alternative approach.
It may be surprise to some claimants that there is no payment for the injury itself and the compensation is for the pain and suffering and disability caused by the injury. (1)
Pain and suffering is not restricted to physical pain and includes emotional upset when arising from an injury so that a scar may not be painful but can still cause cosmetic distress.
The medical report provides a list of the medical diagnoses (injuries) that have resulted from the breach and on which the claimant can claim.
Pain and suffering
Some injuries do not cause physical pain but it is accepted that they cause psychological pain, examples are blindness, deafness, paralysis and amputation.
Other conditions that do not cause pain nevertheless can cause suffering even without the presence of a psychological condition such as tinnitus or nausea or numbness.
The severity of the claimant’s pain and suffering is assessed by the expert at the time of examination on a 5 point scale (1-5) based on experience, examination and the medical records.
The expert then will estimate as a precise figure in the prognosis section how long the pain will last either from the time of the accident or from the examination. (2)
The McKenzie friend can then multiple the length of time from the accident to prognosis in months with the severity to derive a single measure of the pain and suffering.
Loss of Amenity
For mild and temporary loss of amenity a simple list of daily activities with a description of the effects that the injury had on each is sufficient information.
In more severe cases loss of amenity LoA can be measured more accurately using a technique called disability analysis which looks at physical and mental functioning. (3)
The disability analysis expert will consider each of 16 possible functional restrictions and indicate the severity of the disability out of 10 where 1 is the worst.
The expert then considers the effect of provision of appropriate aids and adaptations and derives a figure indicating the adjusted severity. (A)
The expert must also provide an assessment of the claimant’s pre-existing function so the court can compensate for the loss of function due to the injury alone. (P)
The worsening due to the accident then can be determined by the following calculation. LoA = P-A and the LoA is multiplied by years until the age of 80.
Other issues
Pain typically improves in the first few weeks after an accident but the value for pain and suffering may be challenged if does not, unless a diagnosis of regional pain is made.
If there is more than one source of pain and suffering start by calculating the worst and then add 10% of the calculations for any subsequent sources of pain.
Life expectancy is assumed to be 80 but where the LoA figure is greater than 3 or the claimant is old or ill a life expectancy report will be needed.
Payments for aids and adaptations themselves are kept separate from LoA payment as this has already been considered in the LoA calculation.
Conclusions
The approximate value placed by courts on 1 month of mild pain varies between cases and over time so it is not possible to give a definitive value but a figure of £40-£80 has been suggested. (4) (5)
Special Damages will provide adequate compensation for most low value Loss of Amenity situations but where the disability is permanent this value may be significant.
The value of a year lived with a one point LoA is one five hundredth of the value for a claimant with tetraplegia with a life expectancy of 50 years (about £1000).
By paying for residual functional restrictions the defendant has the strongest possible motivation to ensure that the claimant receives both rehabilitation and the best aids and adaptations available.
Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.
Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk
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Rothwell V Chemical & Insulating Co Ltd 2007 UKHL 39
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Burgin 2016 Range of Opinion in PI Prognosis www.pibriefupdate.com
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Burgin 2015 Disability analysis in clinical negligence www.drmarkburgin.co.uk
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JSB 2017 Guidelines for the Assessment of General Damages in Personal Injury Cases. 14 edition.
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Kemp and Kemp Quantum of Damages published by Sweet and Maxwell edited by William Norris
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