For those accident victims whose level of permanent impairment is determined by the TAC at less than 30%, a common law damages claim can still be brought, provided one of the four narrative definitions of “serious injury” contained in Section 93(17) of the Transport Accident Act 1986 is satisfied.
One of the narrative definitions of “serious injury” is as follows:
s. 93(17)(b) – “Permanent serious disfigurement.”
The assessment of whether a particular scar satisfies this definition involves the application of considerable experience and knowledge on the part of the lawyer. A myriad of factors must be taken into account, many of which are entirely subjective. It would be fair to say that an unsightly scar on the leg of a middle-aged man would be viewed differently from an identical scar on a young woman. However, every case is different and the individual circumstances of the particular claimant must be carefully considered.
Some people have a predisposition to scarring that is particularly noticeable. This type of scarring which is called “keloid” or “hypertrophic” scarring often gives rise to a serious injury. However, even individual accident victims who heal well from lacerations can still satisfy the serious injury definition.
If the serious injury definition is satisfied and someone else can be shown to have caused the accident, then common law damages can be recovered for the scarring.