Part of our service at Risksmart is to help ensure our clients obtain the best possible outcome in the event a personal injury claim is made against them. When a claim is lodged with us, we investigate to assess liability and the total amount (quantum) of the claim. If we conclude there is liability exposure, we progress the claim to assess compensation. If the claimant is represented, we request a schedule of damages from the claimant’s solicitor to start the negotiation and settlement process. This article outlines how we read and interpret a schedule of damages and what you can expect from the process.
WHAT IS A SCHEDULE OF DAMAGES?
This is the claimant’s position or a breakdown of items they are claiming for the injury sustained which is designed to prompt a settlement between both sides. This helps to narrow down the issues, gives an indication of what the claimant expects to receive, and gives the defendant with an opportunity to request outstanding evidence that supports the quantum sought by the claimant. The claimant’s schedule is not a final position in a negotiation, and usually, the schedule indicates the highest possible amount claimed in a negotiation.
In general, a schedule of damages outlines the amount that the claimant is seeking for the injury sustained, including:
- Pain and suffering
- The money spent obtaining treatment for the injury
- Time off work and the amount of loss suffered
- Whether the claimant requires further time off and if so, how much
- If the claimant requires domestic assistance during recovery
- The legal costs incurred to date by the claimant
Worked example of a schedule of damages
Below is an example of a schedule of damages and an explanation for each category.
Non-Economic Loss
Non-economic loss relates to the pain and suffering costs associated with the injuries of a claim. The thresholds and amounts differ from state to state. In NSW, the claimant must pass the Civil Liability Act (NSW) 2002 s16 threshold of the top 15% of a most extreme case of injuries to entitle them to general damages. There is a specific guide to the monetary value for each percentage over 15%. In this example, $167,000 has been claimed. We use the legislature and legal precedent to identify the damages awarded for comparable injuries in the past. If the injury is less severe, we will negotiate a lower percentage and reduce the quantum for non-economic loss.
Past Out of Pocket expenses
The tangible amount of money the claimant has spent on the treatment of their injuries. The total amount Risksmart considers is exactly what the claimant has provided receipts for, and what is within the scope of the category. For example, surgery, physiotherapy, pain medication, and specialist appointment costs would be considered, but transport to the hospital and coffee in the waiting room would not. We use an exact figure without rounding. This eliminates a buffer for this category of damages.
Future Out of Pocket expenses
This is an intangible amount the claimant predicts they will spend in the future as a result of their injury. If surgery is scheduled, or physiotherapy or ongoing medication is required, a claimant will claim for future out of pocket expenses. Because this is an intangible amount, it is a matter of negotiation, and often allows for a buffer. Risksmart considers referrals or specialist reports as a guide to how long future out of pocket expenses will continue. We also examine the past out of pocket expenses to estimate future out of pockets.
Past Domestic Assistance
This is a tangible amount that the claimant has spent hiring someone to assist them with domestic duties during their recovery. The amount should only equal what they can provide invoicing for and compensation for a spouse taking on more duties does not qualify for past domestic assistance.
Future Domestic Assistance
This is another intangible amount. It relates to the amount of money the claimant predicts they will need to hire someone to assist with domestic duties in the future. In defending the schedule, we look at the length of time since the incident. If a claimant has not claimed past domestic assistance and significant time has passed since the incident, it is less likely they will require assistance into the future. We use Life Expectancy calculators to estimate how long future domestic assistance is required and other factors such as normal degeneration are considered in evaluating future domestic assistance.
Past and Future Economic Loss
This relates to the amount of money the claimant has not earned due to being injured. For past economic loss, Risksmart only considers the evidence that has been provided.
For future economic loss, medical expert examination is used as a guide. We consider the average retirement age of 65 in determining loss of future earnings. Risksmart requests previous payslips, multiplied by the amount of time the claimant is unable to work, or the number of years until the claimant is 65 (if they have no capacity to return to work) as a guide. This is discretionary and, in some circumstances, allows for extended working periods.
Costs
A claimant’s costs can quickly add up due to solicitor fees, and medical and expert advice. Different states have different regulations in relation to costs. In NSW, claims settled under $100,000 are capped at 10,000 for costs plus disbursements (costs not related to legal fees). A defending party can always query costs incurred by the claimant if they seem unreasonable. Risksmart uses costs as a negotiation tool because solicitors can alter what they charge the claimant to help settle a claim, and may overclaim for a higher settlement amount.
NEXT STEPS
Here are some key considerations we use when reviewing a schedule of damages:
- We always request a schedule of damages from the claimant’s solicitor if the matter is heading toward a settlement
- We read through the schedule of damages carefully and ensure that the relevant questions are asked of the claimant’s solicitor if the assessment is unclear
- Every category must be supported with evidence
- A schedule of damages is a starting point from which we negotiate a settlement.
Claims Executive – Risksmart