Under-settlement of damages: securing the right compensation for personal injury and clinical negligence claims

Posted: 31/03/2023

In claims for personal injury, including those arising from clinical negligence, the full extent of a person’s injuries may not be immediately apparent. There is often a range of risks and complications that lies hidden. This needs careful consideration before a claim can be resolved. Any legal advice on damages must take into account not only damage that has already occurred, but also risks of future deterioration or of future risks materialising as a result of the negligent cause, which would potentially give rise to a further substantial claim.

In a claim for personal injury, the ‘damages’ – meaning the compensation that can be claimed – fall into two broad types: general damages and special damages:

• General damages are claimed for the physical and psychological effects of an injury, to compensate for the pain and suffering caused to the injured person, as well as the ‘loss of amenity’, which includes the impact on the person’s career, activities and lifestyle.
• Special damages provide compensation for the financial effects of the injuries. They cover out-of-pocket expenses and financial losses that have already been incurred, as well as ongoing or anticipated future losses. Common examples include loss of income; aids and equipment; and care and assistance. Special damages can be very substantial, for example, where there is a need for high levels of care, or if more suitable accommodation needs to be paid for.

The legal principle is that an injured person is entitled to claim for damages that as far as possible put them back in the position they would have been had the injury never happened – no more and no less.

In many cases, a lump sum in full and final settlement of the claim is appropriate, and this may be the solution that both parties prefer, but it is not always the best option. Where a negligent injury creates a risk of future deterioration or a further injury might develop that would lead to a far more substantial claim, then a single lump sum may be inadequate. A lump sum alone may under-compensate the claimant if the future risk or deterioration were to occur. In appropriate cases, the courts can therefore make an award that includes ‘provisional damages’. The claimant then has the right to resurrect the claim and to seek further damages in future if specific deterioration or injury occurs, alongside receiving damages now for those aspects of the claim that can be quantified.

The importance of provisional damages is well illustrated by a recent Court of Appeal decision. In Witcomb v J Keith Park Solicitors the claimant had been seriously injured in a road accident at the age of 17. He suffered multiple fractures and injuries to his right leg and foot. The driver who caused the accident admitted negligence and a settlement agreement was reached. The claimant was advised by his solicitor that there was a risk his injuries might be worse than was thought, so the settlement figure might be too low, but that this would not be known until after future surgery to remove the metalwork used to fix the fractures in position. The claimant understood and accepted that risk. He was not told that there was a risk he might need his right lower leg amputating and relevant expert evidence had not been obtained.

Lower limb amputation has a profound impact physically and emotionally, and gives rise to a wide range of additional – and expensive – needs. Some years later, the risk sadly materialised and amputation became unavoidable. The original settlement turned out to be woefully inadequate to meet the claimant’s post-amputation needs. He claimed his former solicitors were negligent for not advising him of the settlement options.

Preliminary issues in that claim were recently heard by the Court of Appeal. The hearing concerned whether or not the claim against the solicitors was out of time but is understood to be the first occasion that failing to advise on provisional damages has arisen in the context of professional negligence by legal advisers. Whether or not the solicitors are liable in this case will now be determined by a court trial.

Andrew Clayton, a managing associate in the personal injury and clinical negligence team at Penningtons Manches Cooper, advises on a range of catastrophic injury cases, including those involving amputation. He has recently secured a High Court judgment comprising provisional damages for a claimant with incomplete spinal cord injury who is at future risk of deterioration. Andrew comments: “This recent Court of Appeal decision underscores the need for solicitors to consider and advise on the range of appropriate settlement options and their relative merits. While the trial of liability issues in the above case is still pending, the Court of Appeal judgment is clear that clients are entitled to expect to be able to rely on the advice of experienced solicitors, who need to understand and obtain appropriate evidence and inform clients of the full range of settlement options.”

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