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Friday, 24 March, 2000, 10:09 GMT
Personal injuries: How they pay
If you are injured by somebody else's negligence, when can you claim compensation? How much can you get? And why are civil settlements so much greater than criminal ones?
In the UK, financial compensation is offered to make up for damage suffered physically, as with a leg injury, or psychologically, as with stress and depression.
Claims can be made through either the civil courts or, in the case of a criminal act, through the Criminal Injuries Compensation Board.
Heads you win...
Personal injury claims in the civil courts are divided into two "heads" - pecuniary losses, and non-pecuniary losses.
The former includes things like loss of potential earnings, and medical expenses.
The latter covers things like distress or frustration caused by the injury, and is described legally as "pain, suffering and loss of amenity" (PSLA).
How are they calculated?
The levels of compensation are decided by a judge, who also decides who is to blame for the injury, and therefore who must pay.
Pecuniary losses are fairly easy for the judges to calculate. They are uncapped, and always form the bulk of any multi-million pound payouts.
Nine-year-old Luke Warren, for example, was awarded almost £3m after suffering severe brain damage at birth, only £135,000 of which was for PSLA (the Court of Appeal has now raised the latter sum to £175,000).
Non-pecuniary losses are trickier to calculate, as judges must make a direct correlation between suffering, and hard cash.
However, most judges make their decisions against guidelines drawn up by the Judicial Studies Board, which are capped at a comparatively low level.
The lowest bracket, for example, is up to £2,000 for minor injuries. The upper bracket is £120,000 to £150,000 for the most serious injuries such as quadriplegia (paralysis of all four limbs).
The amount of damages which can be claimed through bereavement - if a parent loses a child, for example - has been set at £7,500 since 1991.
The defendant - that is the individual or organisation which takes the blame during the court case - pays the damages awarded.
In the UK, that broadly means either the insurance industry or the NHS.
For example, a claim against a company over asbestos poisoning would be paid by that company's insurance firm, under employers' liability insurance.
The NHS pays for all medical negligence cases except those in the private sector, which would be paid for by insurers.
How much does it cost the country?
A recent study by the right-wing think tank the Centre for Policy Studies (CPS) said compensation claims cost Britain £6.8bn a year in pay-outs and legal fees.
Actual figures are hard to come by, as the majority of payouts are settled before they go to court - up to 98%, according to the CPS.
The NHS currently has 15,000 outstanding claims, which a recent Committee of Public Accounts inquiry said could cost £2.8 billion.
In the last year the number of claims against the NHS has risen sharply.
This follows a landmark ruling over the Kent and Canterbury Hospital smear test scandal, which changed the benchmark against which negligence is tested from "reasonable care" to "best practice".
What if they're not insured?
There would be no point in pursuing a claim against an individual or organisation who could not pay.
But a recent Court of Appeal said insurance is "almost universal" when it comes to personal injury claims.
Many individuals, for example, have public liability cover in their basic household content policies.
Until 1996, payouts for injuries resulting from criminal behaviour were linked to similar cases in the civil courts - the major difference being they were paid for by public money.
But the system was slow, and a huge backlog had built up, so the then Home Secretary Michael Howard brought in a strict system of tariffs.
Compensation for pecuniary losses - that is loss of earnings and medical expenses - are now capped at £250,000.
The payouts for pain and suffering are measured on a scale of about 180 different injuries, also capped at £250,000.
They range from £1,000 for a chipped tooth, to £250,000 for the most severe physical and psychological damage.
The CICB pays out about £200m a year. It is frequently accused of making "derisory" payouts.
Cherie Booth QC recently offered free legal help to seven-year-old machete attack victim Francesca Quintyne, who suffered severe facial injuries but was offered only £8,100.
Lawyers said that if she had suffered similar injuries in a road accident, she could expect £100,000 from a civil action.
And the system leads to other anomalies. Fourteen South Yorkshire policemen were awarded £1.2m in the civil courts against their employer, for psychiatric damage suffered in the Hillsborough disaster. Yet some of the bereaved were refused compensation by the CICB.
And two policewomen who claim they suffered psychological trauma after the Dunblane massacre are suing their force for £400,000 each.
This vastly outstrips compensation paid to some of the victims, such as the £4,500 paid to Aimie Adam, who suffered a damaged sciatic nerve and a shattered foot.
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