How do you quantify the unquantifiable in personal injury cases? - Kim Leslie

But make no mistake, its impact can be profound, particularly when life takes an unexpected turn.

In our daily lives, we often wear a cloak of invincibility, blissfully unaware of the risks that lurk around the corner, or at least not overly focused on them.

Yet, for those who suffer serious injuries, that cloak can sadly be torn away, forcefully, suddenly and without warning – sometimes with life-changing consequences.

The truth is, anyone can find themselves or a loved one facing the unexpected devastation of a serious injury. Unfortunately, no one can prepare for it, and only when it becomes relevant to you do you hope that the methodology for calculating future losses in a personal injury context is as accurate and as up-to-date as possible.

Let’s be clear: no personal injury claimant is seeking a windfall. Financial redress is only awarded where there is an organisation or individual found to be clearly responsible for causing the injury.

The award or settlement is meant, as far as can be done in financial terms, to put the injured person back into the position they would have been if the injury had not happened.

But how do we quantify the unquantifiable? How do we put a price on good health, mobility and cognitive function? The reality is that if full recovery isn’t an option, the goal becomes ensuring a quality of life that most closely mirrors what should have been.

Consider this scenario: you’re suddenly unable to work, with no prospect of returning to the workforce to supplement your income. This is the stark reality for many left with limited capacity after an accident or assault. In such cases, individuals often find themselves negotiating for a lump sum payment intended to cover all past and future losses, including future earnings, pension and care costs.

The calculation of these future losses depends on three components. Historically, it would have been a broad-brush approach. Now, it’s done with reference to actuarial tables, meticulously designed for compensation purposes. Take, for example, a £1000 physiotherapy need for the next 20 years. Most people would assume they are getting £20,000. The actual compensation will vary to take into consideration factors like accelerated receipt and investment returns.

Scotland is about to undertake a review of the rate, aiming for accuracy and fairness. The last review took place in September 2019. But now proposed changes, such as extending the investment period from 30 to 43 years are being utilised.

The adjustment for investment expenses, while increased to 1.25 per cent, may still fall short of the mark. As a specialist in complex personal injury, it is imperative to be aware of any change to advise clients who may be impacted by any rate change.

In the end, there’s no perfect system. We strive for fairness amid complexity. Most claimants already discount their compensation, weighing the certainty of settlement against the risks of litigation.

But for the seriously injured, the fear of financial insecurity looms large. Our duty is clear: to ensure the factors guiding these calculations are evidence-based and sound, safeguarding against the spectre of financial shortfall in their time of need.

For the seriously injured, we must ensure the factors impacting the calculation are as evidence- based as possible so that we can get it right and guard against serious shortfall.

Kim Leslie is a Partner, Irwin Mitchell Scotland