Why is it important to have a detailed Assessment of Damages?
If you were injured in an accident and required the assistance of a solicitor to bring a claim, one of the first questions you would ask is “how much is my claim worth?” This is a natural question, but the answer isn’t always straight forward.
In the early stages of a claim it is usually not possible to provide specific advice on the value of the case, at least until such time as the client’s injury has ‘stabilised’. Stabilisation is the point at which the injury is able to be assessed by medical professionals and they are able to predict with some degree of reliability any deterioration or improvement that is likely to happen in the future.
Once your injury has stabilised we prepare what is known as an assessment or schedule of damages. The purpose of this document is to outline the categories of compensation you are claiming as a result of your injuries and the amount that you are claiming for each category. Often, a defendant will request a copy of this document in order to get an idea of your position and to potentially explore informal settlement options.
Each compensation claim is unique and your solicitor will always advise you on your entitlements. However, a typical assessment of damages will include a claim for the following heads of damage:
- Non-economic loss: this head of damage relates to losses that are not capable of precise mathematical calculation. Traditionally, this has included pain and suffering, loss of amenities, disfiguration, loss of life expectancy and loss of enjoyment of life. The statutory threshold you must meet and the maximum you can claim are governed legislation. In the case of motor vehicle accidents by Section 131 of the Motor Accidents Compensation Act 1999 (NSW), and for most other personal injury claims by Section 16 of the Civil Liability Act 2002 (NSW).
- Care and domestic assistance: this head of damage encompasses any personal care (such as assistance with dressing and showering) and domestic assistance (help with the gardening, cooking, washing etc) that you have needed in the past and will need in the future due to the injuries you sustained in your accident.
- Past and future gratuitous care: in order to claim for ‘gratuitous’ (or unpaid care often provided by family members), you must satisfy the statutory threshold provided by Section 141B of the Motor Accidents Compensation Act 1999 (NSW) for motor vehicle accidents or Section 15 of the Civil Liability Act 2002 (NSW) for most other personal injury claims. The care must be provided for at least 6 hours per week for at least 6 consecutive months. Evidence is required to support the notion that the need for care is caused by your injuries and that the care provided is reasonable in terms of frequency and duration.
- Commercial care: A claim may be paid for both past commercial care (this is care such as cleaning and nursing that you have been required to pay for) and for future commercial care. The care must be reasonable and necessary and usually requires support in the form of evidence from medical practitioners.
- Past and future out-of-pocket expenses: Past out-of-pocket expenses include any reasonable expenses you have incurred for treatment, medication and travel due to your injuries. These expenses should be evidenced by receipts and medical evidence. Future out-of-pocket expenses relate to the treatment you will require into the future such as physiotherapy, further surgery, medication etc. Again, claims for future treatment must be supported by medical evidence.
- Past and future economic loss: if you were employed at the time of the accident and could not work at the same capacity as before your accident or at all, you are entitled to claim for past economic loss. This includes any lost wages, bonuses, over-time and superannuation that you forwent due to your injuries. Future economic loss takes into account the ongoing effects of your injuries on your ability to perform your pre-accident duties, future employment prospects and any loss of earning potential you suffer due to your accident.
In order to give the evidence in your claim context and for your claim to be understood by the defendant, your lawyer will put forward complex and accurate arguments that communicate your losses effectively in the assessment of damages. Detail is essential in this respect which includes accurately identifying your injuries, detailing your ongoing disabilities and restrictions and providing a full picture of your pre-accident state as compared to your post-accident state.
If the defendant denies liability for your accident, the assessment of damages will often include an argument about how the defendant was negligent and how this negligence led to a breach of duty of care owed to you. Your solicitor will spend time formulating a detailed argument to rebut the defendant’s denial and ensure that your strongest case is put forward. This is a legalistic argument which requires a strong understanding of the relevant legal principles and case law.
To summarise, the assessment of damages should contain as much detail as possible to support your claim and bolster the evidence that has been gathered. However, there must be a balance between detail and conciseness which your lawyer will maintain as to avoid overloading the defendant with irrelevant information and convoluting your position.
The team at Stacks Goudkamp are experts in running and maximising compensation claims. If you or somebody you care about has been involved in an accident, you may be entitled to compensation. For more information, and to arrange a free, no obligation assessment of your claim, please call Stacks Goudkamp on 1800 46 8362 or alternatively make an online enquiry.
Written by Megan Sault
Megan Sault is a Paralegal in Victoria Roy’s Travel Law Practice Group at Stacks Goudkamp. The Travel Law Practice Group specialises in bringing compensation claims for injured air passengers and cruise passengers, as well as tourists who have been injured overseas.