Personal Injury Damages
Posted by
Scott SmithApril 07, 2007 12:28 PMThe most significant issue to most people involved in a personal injury claim is the issue of damages. Obtaining fair and just compensation for injuries you have sustained should be a primary concern of your lawyer.
When a judge or jury finds the defendant (at fault party) liable for wrongful conduct in a personal injury case, the issue then becomes what types of damages are due to the plaintiff (injured party), and in what amount. As you know, if you suffer a personal injury you'll likely require medical attention and may need rehabilitation, all of which costs substantial amounts of money. You may lose income (and/or have to use up "sick time") because of the injury, and you may continue to lose income while treatment and recovery takes place. You may have sustained property damage to your car and other property. Since you can't drive your vehicle while it is being repaired, you may have to rennet one, and car repairs and rentals can cost money. You may also lose the ability to perform various activities of normal daily living, for a while or permanently. You may also endure significant pain and suffering, which may be ongoing as well.
The law permits you to seek recovery after an accident to "make you whole again." The central concept is that you should be compensated in a manner that, as best as the law can arrange, places you back in the same position as you were before the accident. In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages. For example, in negligence cases, we must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you. However, with some intentional torts (such as battery, assault or trespass) we may only have to show that the defendant engaged in the unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury).
Three basic kinds of damages are awarded in personal injury cases: compensatory damages, punitive damages and nominal damages.
Compensatory damages
Compensatory damages are derived from the word "compensate," meaning to "to make up for" or "to make whole". Generally, these damages can be broken up into two sub-categories - actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained. Actual damages typically include:
• Medical and hospitalization bills incurred to treat your injuries
• Wages lost due to work missed while you recuperate
• Costs of household or nursing help during recovery, including costs of wheelchair or crutches required
• Cost of rental car or substitute transportation
• Cost to replace or repair damaged property
As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can't be precisely documented in dollars spent, including:
Nature and extent of the injury
Ability or inability to perform usual activities
Pain and suffering endured due to injures and any subsequent mental anguish
Disfigurement resulting from injuries
Value of medical expenses you are likely to incur in the future
Value of wages you are likely to lose in the future
Permanency of injury and resulting pain and suffering
Loss of consortium (benefits of a relationship)
Loss of opportunity
Punitive damages
In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence - behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.
Example: If an amusement park fails to inspect and repair a broken track on one of its rides, knowing of the problem and associated dangers, and severe injury or death results, the plaintiff may ask for hefty punitive damages to penalize the park.
Nominal damages
Nominal damages are minimal damage awards acknowledging that the plaintiff was legally wronged, while at the same time recognizing a lack of evidence establishing that the plaintiff suffered actual damages. Nominal damages are normally very small awards, and are allowed only in cases where actual injury is not required to be shown, such as with intentional torts.
Example: If you are pushed by someone in such a manner so as to be offensive, thus constituting the tort of battery, but you suffer no actual physical injury, you may be entitled to a minimal award of nominal charges.
Attorneys' fees and court costs
In addition to damages, a prevailing plaintiff is also able to recover court costs incurred. Court costs include the cost of filing fees, process server fees, deposition, transcripts, court transcriptions and translators. Attorneys' fees are generally not included as part of a successful plaintiff's recovery, though there are limited circumstances where procedural rules allow for the successful plaintiff to recover attorneys' fees and expert witness fees.
These procedural rules require the understanding and skill of experienced personal injury attorneys.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law.