Kristin Poling, senior claims executive at UK P&I Club writes for Splash today.

Operational environments on board a ship can be dangerous, with seafarers regularly navigating unpredictable and sometimes precarious conditions. Such incidents may result in lasting impacts that extend beyond physical injury and entail a psychological cost. It is this element that can be more challenging for ship owners and operators to manage if these claims end up contested. When it comes to these subjective injury claims, companies should be aware of the processes and practices that can help them evaluate allegations of ‘pain and suffering’.

While the burden of proof for these claims remains high, with claimants having to provide medical records and expert testimony to substantiate their case, the commonly assessed factors such as an injury’s impact on daily life and psychological consequences remain highly subjective.

The challenge with subjective injury claims

In recent years, courts have seen a surge in nuclear verdicts where claims exceed $10 million. Many of these relate to claims for pain and suffering. Plaintiff attorneys often employ emotional narratives, calculate “per‑minute suffering”, and use the “reptile theory” (focusing on public safety over logic) to sway jurors. These strategies underscore the need for shipowners to maintain not just rigorous safety systems, but robust processes, procedures, and above all documentation, that will help to reduce risk as well as strengthen their defence.

Of the various categories of injuries, traumatic brain injuries (TBIs) are among the most complex and unique claims to navigate in a courtroom. TBI claims often rely on a combination of subjective health complaints, such as headaches, mood changes, and memory loss, and neuropsychological testing that requires careful clinical interpretation.

Expert witnesses, who may legally be paid for their opinions, sometimes run the risk of overinterpreting these test results or present them without proper context. This does not diminish the reality of genuine TBI cases, but it does highlight the importance of scrutinising evidence to ensure claims are accurately assessed.

Reducing risk and improving outcomes

When it comes to limiting liability, the presentation of high quality documentation is vital. Comprehensive incident reports which contain specific details (e.g. the height of a fall or the speed and impact of a force), and the stringent upkeep of safety logs and maintenance records all help to accurately assess the validity of subjective claims, especially since minor falls or low‑impact events rarely cause severe neurological injuries.

Alternative dispute resolution can also offer a strategic advantage to both parties. Mediation offers discretion over proceedings, provides more cost-effective recourse, and gives both parties more control over the outcome than a full trial. Additionally, including forum selection and arbitration clauses in contracts provides shipowners with a greater level of control in terms of where these claims can be contested, thereby limiting exposure.

Conclusion

Subjective injury claims are inherently complex and require a balance of sensitivity and analytical rigour. While no system can eliminate the risk entirely, shipowners can significantly reduce their exposure by maintaining approachable safety cultures that are supported by documentation processes to ensure claims are evaluated with the benefit of objective, robust evidence.