Professional Documents
Culture Documents
Damages in General
Damages are generally awarded to compensate an injured person for the
harm caused by the defendants actions. There are a number of
different types of compensation for an injury, including compensation for
physical pain and suffering, physical impairment, mental anguish, loss
wages, and medical expenses.
(See Alllaw's section on Personal Injury Damages for more information.)
For example, suppose Tom was injured in a car accident where the other
driver (Mark) was at fault. Tom can recover damages for permanent lost
mobility in his arm, for missing two months of work, and for his medical
expenses. Toms damages would be awarded based on the money he lost
as a result of Marks actions, and based on the negative impact the
accident has had on his life.
should be awarded damages to compensate him for his injuries. Also, Tom
would have a good claim for punitive damages. Tom can argue that Mark
should be punished for intentionally causing his injuries and should be
punished to deter other people from acting in the same dangerous manner.
Limitations on Punitive Damages. Some states like Florida place
limitations or caps on punitive damages awards. Florida does not allow a
punitive damage award to exceed three times the amount of the award of
compensatory damages or $500,000, whichever is higher. Check the law in
your state or talk to an attorney to find out whether such caps are in place
where you live.
Sanctions for Lack of Reasonable Basis. There must be a reasonable
basis for an injured person to seek punitive damages in a personal injury
lawsuit. Where there is limited or no evidence of intentional misconduct,
gross negligence, or deceit, a court can levy monetary sanctions on the
injured person and his or her attorney for seeking punitive damages. By
requiring a reasonable basis for asking for these kinds of compensation,
courts are trying to discourage frivolous claims for punitive damages in
personal injury cases.
http://www.alllaw.com/articles/nolo/personal-injury/punitive-damages-grossnegligence.html
Loss of income;
Out-of-pocket expenses;
Disfigurement;
Alteration of lifestyle;
Psychological trauma;
Mental anguish;
Mental distress;
Apprehension;
Anxiety;
Emotional injury;
Psychological injury;
Depression;
Sexual dysfunction;
(Content adapted from Ralph King Anderson, Jr., South Carolina Requests
to Charge Civil, 13-3.)
Punitive Damages
In cases involving gross negligence, willful conduct or recklessness on the
part of the wrongdoer, the plaintiff may also seek punitive damages in
addition to actual damages. Punitive damages are imposed as punishment.
They are not intended to compensate, but are allowed in the interest of
society in the nature of punishment and as a warning and example to deter
the wrongdoer and others from committing like offenses in the future.
Moreover, they serve to vindicate a private right by requiring the wrongdoer
to pay money to the injured party. If punitive damages are sought, a jury
would receive a detailed explanation from the judge as to the what type of
circumstances would justify an award for punitive damages, as well as a list
of factors the jury must consider in determining whether punitive damages
should be awarded and in determining the amount of the award.
http://www.avvo.com/legal-guides/ugc/elements-of-actual-damages-innegligence-cases-1
The formulation and regular review of a written health and safety policy.
Clearly defined roles and responsibilities for safety matters from the board
down.
A process for monitoring the effectiveness of the health and safety system and
reviewing and amending it as appropriate.
http://www.fieldfisher.com/publications/2014/10/corporate-manslaughter-casesin-2014
Legal Remedies for Torts: Also known as damages, these are monetary
payments made by the defendant for the purpose of compensating the victim for their
injuries, losses, and pain/suffering. These are calculated according to the victims losses
rather than the tortfeasors gains. Punitive damages may be added in some types of tort
claims. Claimants that win a judgment in court are awarded pain and suffering damages.
Replevin: Replevin allows the victim to recover personal property that they
may have lost due to the tort. For example, they may recover property that was stolen.
Replevin can be coupled with legal damages in some cases.
Property Lien: If the defendant cannot afford to pay damages, a judge may
place a lien on their real property, sell the property, and forward the proceeds to the tort
victim.
Equitable Remedies: These are available where monetary damages will not
adequately restore the victim to wholeness. These can include:
Are All the Types of Tort Remedies Always Available for Every Tort?
No- a large part of any tort lawsuit is set side for deciding which type of remedy is
appropriate for the victim. Generally speaking, restitutionary and equitable remedies are
not available if legal damages will be claimed by the plaintiff. That is, if a monetary
payment will make the plaintiff whole, then there is no need for a court to issue
restitutionary or equitable remedies.
On the other hand, a judge may sometimes issue a combination of different remedies so
long as it is allowed by the laws of their jurisdiction. Or, they may combine remedies
while placing a cap or limit on one of the options. A common combination of remedies is
replevin coupled with legal damages.
For example in a conversion (theft) case, the judge may order replevin so that the
plaintiff can get their stolen property back. On top of this, the judge will typically order
the defendant to pay compensatory damages for the time that the plaintiff was not able
to use the property. This is especially common in cases where the stolen property is
equipment or machinery that the plaintiff uses to generate their income. The defendant
may then have to pay damages to compensate the plaintiff for lost wages.
http://www.legalmatch.com/law-library/article/remedies-in-tort-law.html
NSW v Ibbett [2005] NSWCA 445 (13 December 2005)
The primary issue for determination by the Court of Appeal was whether the award
of exemplary damages was precluded by the Civil Liability Act 2002 (NSW) and
whether, in any event, the award was justified in the circumstances.
DECISION:
(1) Appeal dismissed
(2) Allow the cross-appeal in part and vary the orders in the District Court so as to
(a) set aside orders 1 and 2
(b) in relation to the assault, add an additional amount of $10,000 on account
aggravated damages; and
(c) set aside the awards of exemplary damages and award in lieu thereof
(i) an amount of $25,000 with respect to the assault, and
(ii) an amount of $20,000 with respect to the trespass
(3) Direct that judgment be entered for the Plaintiff in the sum of $105,000
(4) Order the Appellant to pay the Respondents costs of the appeal and crossappeal
Non-Economic Damages
Non-economic damages cover certain type of injuries that are not out-of-pocket losses,
including pain and suffering, disability, disfigurement, humiliation, mental anguish, loss of
consortium (companionship) as well as emotional distress. Because these damages are
often difficult to calculate and, juries may overcompensate and non-economic damages
can exceed actual economic damages. There is no standard formula to calculate these
non-economic damages; therefore they vary on a case by case basis and are referred to
http://www.alllaw.com/articles/nolo/personal-injury/damages-compensationmental-aguish.html
Most people have heard the term "pain and suffering," but they may not necessarily know that it is a key component of many a personal
injury case. But what is pain and suffering from a legal perspective, and more importantly, how is it calculated for purposes of an injuryrelated insurance claim or lawsuit?
and a therapist. All of these problems are directly related to the accident, and the claimant is entitled to compensation for mental pain
and suffering due to the accident.
Mental pain and suffering can sometimes get so bad that it prevents the victim from returning to work even after the physical injuries
have healed. In this case, this victims depression due to the accident might linger long after his/her broken bones and concussion
healed. In such a case, the victim would still be able to claim any damages related to the mental pain and suffering, such as lost income.
Next, lets look at a less serious example of mental pain and suffering. Lets say that someone gets into a car accident and suffers back
strain. As a result of the back strain, the claimant is prevented from exercising for several weeks, and, during this time, is prevented from
running in a marathon that they had been training months for. As a result of missing the marathon, the claimant is angry, frustrated,
unhappy, and maybe even a little depressed. This claimant has no need for mental health assistance, but these effects, while
comparatively minor, still qualify as mental pain and suffering.
whether the plaintiff is exaggerating his or her claims of pain and suffering
whether the plaintiffs physicians support the plaintiffs claims of pain and suffering
whether the jury thinks that the plaintiff lied about anything, even something relatively minor (as a general
rule, if a plaintiff lies, the plaintiff loses)
whether the plaintiffs diagnosis, injuries, and claims make common sense to the jury
http://www.nolo.com/legal-encyclopedia/what-pain-suffering-personal-injurycase.html
Plaintiffs seek personal injury compensatory damages from defendants in tort actions because defendants have caused personal injury to the plaintiffs by
negligent or malicious action or omission. Personal injury can be mental, physical, psychological, emotional, or financial. Compensatory damages can be
sought for loss of earnings, medical expenses, and mental, physical pain, and suffering in personal injury actions. Compensation can also be sought for any
other damages that are a reasonable consequence of the negligent act or accident. The jury or judge exercises wide discretionary power in granting
compensatory damages in matters of personal injury.
Compensatory damages can be given in two forms. Special damages that compensate victims for monetary losses and general damages that compensate
victims for non-monetary losses.
Compensatory damages for personal injury include:
Cost of medical expenses and treatment: Damages for medical expenses include the costs of both past and future medical care and rehabilitation.
Future costs are calculated by estimating the patients medical needs for the rest of his/her life expectancy. Medical bills are considered substantial
evidence of the seriousness of an injury. When there is a chance that treatment will extend for a lifetime, the compensation amount will also substantially
increase.
Cost of living with a disability: An injury resulting in a disability that requires a victim to basically alter his/her lifestyle. Compensatory damages
can cover the costs associated with this change. When an injured person suffers severe disability which results in living in a wheel chair or only with the
help of a third person compensation under the head cost of living with disability can be increased.
Loss of wages and earning capacity: A victim can recover any wages lost while recovering from an injury. A victim can lose wages or days of work
because of treatment for the injury suffered[i]. The victim can also recover for any lost earning capacity suffered as a result of an injury. When the nature
of the injury is serious and results in a disability for a long period, the victim can claim compensation under loss of future earnings. If the victim was
employed at the time of the injury, his/her earnings prior to the injury or average income over recent years can be taken as evidence of the value of his/her
lost earnings[ii]. In a personal injury action, an injured person who is living can recover for damages for lost future earnings. However, if the victim has
died, damages for lost future earnings are recoverable only through a wrongful death action[iii].
Cost of replacement or repair of property: A victim can also recover the costs of property damage suffered in an accident. Property is typically
valued at its fair market value at the time of the injury. Compensation for any damage in property can be recovered along with compensation for physical
injuries. Property damage can be considered if the property has been completely destroyed so that it is of no further use and has no salvage value. The
measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of
the property prior to the accident and not replacement value. If the property can be repaired, the amount of damages can be set at the amount it costs to
repair the property plus the loss of its use by the owner. However, if the cost to repair the property exceeds the fair market value of the property before
loss, the damages can be limited to the fair market value.
Funeral expenses: Family of a personal injury victim can recover costs of any funeral expenses incurred as a result of the injury.
Pain and suffering: an injured can claim damages for pain and suffering that result from the injury. Damages include compensation for actual
physical pain and emotional distress. Emotional distress is defined as the frustration, fear, anger and loss of enjoyment of life associated with suffering
from a debilitating injury[iv]. Any plaintiff is entitled to get compensated for the pain and sufferings endured by him/her as a result of the wrongful act or
omission of a defendant. The pain and suffering also includes the suffering that the person endured during any surgery or medical treatment that the
person went through that was reasonably required by the accident. However, damages under the element pain and suffering can not be awarded if there is
no proof of severe injury and if there is sufficient proof that the pain is just imaginary[v]. In a state of unconsciousness, pain cannot be experienced and
there can be no recovery for pain and suffering[vi]. However, infants can recover for pain and suffering caused by a negligent accident because they are too
young to explain their pain[vii]. The use of sedatives and drugs to relieve the injured of the pain is also prominent evidence to show the gravity of the pain
and suffering.
Loss of consortium: Spouses of personal injury victims can receive damages for the loss of the emotional and intangible elements of marriage,
such as loss of affection, solace, comfort, companionship, society, assistance, and sexual relations[viii]. Generally, in a tort action, the person injured is
awarded the damages. In loss of consortium actions, the family of the tort victim who suffered loss should be compensated. When a spouse is
incapacitated or is dead as a result of an accident caused by a third party, the other spouse goes through a pain and loneliness that is also severe. Loss of
consortium can be demanded when normal romantic and recreational lives of the spouses are affected by an accident caused by the negligence of a
tortfeasor. Children of an injured or dead person can also move an action for loss of consortium. They can recover the damages for the past and future
losses of their lost parent[ix].
Mental anguish and emotional distress: in a personal injury action, damages can also be sought for mental anguish. Mental agony can be
inferred from physical pain and suffering[x]. A jury can award damages under their discretionary power to an emotionally distressed person if it is evident
from the proofs that the mental distress was caused as a result of the accident. The amount that can be awarded is also under the jurys discretionary
powers. Damages can also be awarded for traumatic neurosis and mental depression that relates to physical injuries[xi]. Loss of ability to do work or
permanent disability renders a victim mentally depressed with grief and all these factors are considered by the jury while determining damages. Damages
can be given to victims for their experience of terror from impending death[xii].
Loss of enjoyment of life: Damages for loss of enjoyment of life arise from physical disability that include a cosmetic deformity[xiii]. The
plaintiffs capacity to live a normal life should be affected by such deformity. A person can claim damages for loss of enjoyment of life if the physical
impairment resulting from an accident limits the capacity to share in the amenities of life. The jury can award reasonable amount as damages if substantial
evidence shows that the injured person had enjoyed certain amenities in life and only because of the accident is not able to enjoy them.
Permanent disability and disfigurement: If due to an accident, a person is left with a disfigurement or permanent disability the person can seek
additional compensation. For example, there have been some medical malpractice cases where the medical staff amputated the wrong limb of a patient
which left the patient permanently disfigured and disabled. This provides the patient additional compensation under the category of permanent disability
and disfigurement.
A jury takes into consideration certain factors before awarding compensation in personal injury cases. The victims age, earning capacity prior to the
accident, mental and physical health, habits, nature and extent of the injuries, suffering of the victim and the period of suffering, loss of income, impact of the
injury on victims life style are all considered by the decision makers before calculating the compensation for personal injuries in economical terms[xiv]. The
jury relies on the substantial evidence provided by a plaintiff on the loss suffered by the plaintiff because of the injury caused by a third partys
negligence[xv]. The severity of the injury and length of the illness will also be taken into consideration by the jury before awarding the damages[xvi]. While
determining compensation for an injured minor, the jury should take into consideration the ability to produce future earnings because the minor has not
acquired an earning capacity[xvii]. However, there should be substantial evidence to prove that the injury will have an effect on the future earning capacity of
a minor.
[i] New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 395 (Miss. 1866)
[ii] Kemps Garage, Inc. v. Poole Truck Lines, Inc., 606 So. 2d 144 (Ala. Civ. App. 1992)
[iii] Jones v. Flood, 118 Md. App. 217 (Md. Ct. Spec. App. 1997)
[iv] Ciarrocca v. Campbell, 282 Pa. Super. 60 (Pa. Super. Ct. 1980)
[v] Durosky v. United States, 2008 U.S. Dist. LEXIS 97383 (M.D. Pa. Dec. 1, 2008)
[vi] Gregory v. Carey, 246 Kan. 504 (Kan. 1990)
[vii] Friel v. Vineland Obstetrical & Gynecological Professional Asso., 166 N.J. Super. 579 (Law Div. 1979)
[viii] Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So. 2d 1183 (Fla. Dist. Ct. App. 5th Dist. 2009)
[ix] Haley v. Pan American World Airways, Inc., 746 F.2d 311 (5th Cir. La. 1984)
[x] Kaufman v. Miller, 414 S.W.2d 164 (Tex. 1967)
[xi] Jackson v. International Paper Co., 163 So. 2d 362 (La.App. 3 Cir. 1964)
[xii] Kuczynski v. Weimann, 1990 Conn. Super. LEXIS 1885 (Conn. Super. Ct. Oct. 17, 1990)
[xiii] Orr v. Mukasey, 631 F. Supp. 2d 138 (D.P.R. 2009)
[xiv] Garfoot v. Avila, 213 Cal. App. 3d 1205 (Cal. App. 5th Dist. 1989)
[xv] Sebastian v. Kluttz, 6 N.C. App. 201 (N.C. Ct. App. 1969)
[xvi] Fischer v. Mahlke, 18 Wis. 2d 429 (Wis. 1963)
[xvii] Allen v. Bonnar, 22 Wis. 2d 221 (Wis. 1964)
http://damages.uslegal.com/compensatory-damages-in-personal-injury-cases/