What Are Special Damages in Personal Injury Cases?
Special damages in personal injury cases are the element of an injury compensation settlement that enable you to recover financial expenses you have incurred which are directly attributable to a loss, an injury or the deterioration of an existing condition you have suffered due to somebody else´s negligence.
The intention of special damages in personal injury cases is to address any economic loss which has been caused by the loss or injury, and return that element of your financial position to that which it would have been had the loss or injury never occurred.
In order to include personal injury special damages in a claim for personal injury compensation, it is important that you keep receipts of expenses you have already incurred and produce credible estimates of costs you may encounter in the future which are directly attributable to your loss or injury.
At a time when you may be overwhelmed by your personal situation due to your injury, it may not always be possible to consider the financial implications of a loss or injury, and you are best advised to discuss personal injury special damages with an experienced solicitor at the first possible opportunity.
What Can I Claim Special Damages For?
Costs can be claimed for practically any quantifiable expense which can be attributed to your loss or injury. To make this easier to understand, it is sometimes more helpful to distinguish between “incidental” special damages and “consequential” special damages.
Incidental personal injury special damages relate to expenses incurred in remedying a situation. Therefore, if you have sustained a broken leg in a car crash accident while driving to the airport to catch a flight for your holiday, any expenses related to medical treatment (prescription charges and private treatment not available on the NHS) and costs incurred in repairing your car could be recovered in “incidental” special damages.
“Consequential” personal injury special damages relate to any expense incurred as a consequence of your situation, and are far more wide-ranging than the incidental damages. In the example of a car crash while driving to the airport above, you would be able to include among your consequential damages:-
- The cost of alternative transport while unable to drive
- The cost of a replacement holiday
- The cost of a home help or child carer if required
- Loss of income, regular overtime and pension contributions
- The cost of re-structuring your home if you were permanently confined to a wheelchair
Special damages in personal injury cases do not include compensation for the disappointment of missing your holiday, compensation to account for the deterioration in your quality of life due to being unable to work, drive, socialise and perform day-to-day activities independently, and compensation for any psychological trauma you may have experienced. These areas of a personal injury settlement are accounted for in personal injury general damages – an area which your solicitor will be able to explain in greater detail if required.
How Contributory Negligence affects the Recovery of Costs
In the same way as a percentage of the general damages you may be entitled to would be deducted from your final compensation settlement if it were found that you had contributed to your injuries, the value of costs you would be able to recover can also be reduced due to your contributory negligence
In the example given above, you would normally be entitled to all the personal injury special damages as listed; however, had you not been wearing a seatbelt at the time of your car crash accident, you would be considered to have shown a disregard for you own health and safety and penalised accordingly – even though there was no connection between the fact that you were not wearing a seatbelt and the injury you sustained.
The reduction in special damages in personal injury cases could be as high as 33 per cent for failing to wear a seat belt – a significant proportion of future loss of earnings if you are unable to work ever again!
Special Damages, Children and the Statute of Limitations
The Limitations Act of 1980 set a time limit of three years from the date on which you have knowledge of an injury in which to make a claim for personal injury compensation. Personal injury special damages can form a significant part of a personal injury compensation settlement and the same time limitation applies.
Exceptions to the Statute of Limitations can apply for a variety of reasons and, in the case of injury compensation claims for children, claims for compensation can be made up to three years after they reach their eighteenth birthdays.
However, if a young child sustains a catastrophic injury, a claim for personal injury compensation should not be delayed and a personal injury claim should be made on the child´s behalf by a parent or guardian acting as a “next friend ”. This will enable the release of special damages to cover the costs of medical and educational requirements, and ensure that members of the child´s family can afford to give up work to provide care at home if required.
Personal Injury Claims and Insurance Companies
In certain circumstances, you may be approached directly by the negligent party´s insurance company with an offer of compensation in return for a quick settlement of your claim – sometimes even before you have considered making a claim at all!
It is unlikely that the insurance company will have completed a full assessment of your injury and the consequences of your injury prior to offering you a potentially inadequate settlement of compensation, and the risk of being undercompensated can mean that you might receive insufficient special damages to meet medical costs or support your family while you are still unable to work.
If you do experience financial difficulties while waiting for a personal injury compensation claim to be settled, speak with your solicitor about the option of applying for interim payments of compensation until your claim is satisfactorily resolved.
Personal Injury Special Damages Summary
There is no guesswork attached to special damages in personal injury cases – they are simply the quantifiable expenses that you have already incurred, or may incur in the future, which can be attributed to an injury caused by a negligent third party.
If you are unsure what expenses qualify as special damages in a personal injury case, you should discuss the accident in which your injuries were sustained and the financial consequences you have experienced with a personal injury claims solicitor at the first possible moment.
All articles are written or edited by Eoin Campbell.