Damages in a Personal Injury Case
When determining damages in a personal injury case, the court will consider various factors. Some factors include the severity of the injury, the permanence of the injury, the medical expenses incurred, the loss of earnings or future earnings and the person bringing the claim. There may be different damages available depending on the facts of the case, whether the injured party is alive or deceased and/or the jurisdiction in which the claim is filed. It is important to seek legal advice before initiating a personal injury lawsuit.
Persons Who May Bring a Personal Injury Claim
The most common plaintiff in a personal injury case is the individual who was injured. However, the injured party is not the only person who may bring a personal injury claim.
Other persons may bring a claim on behalf of the injured party. This may occur when the victim is an unborn child, a minor or an incompetent individual. Family members, spouses or domestic partners may also bring their own claims arising from the injury of a loved one. Some of these claims may include loss of companionship/loss of consortium, loss of earnings, loss of household services or negligent infliction of emotional distress. The latter may have a better chance of success if the family member/spouse/partner witnessed the event that injured the victim.
If the injured party dies as a result of his or her injuries, the decedent’s loved ones may have a claim for wrongful death. In addition, if the victim dies at some point during litigation, his or her estate may continue the case on behalf of the deceased victim; this type of action is often called a survivor action. It is important to note that once the injured party has passed, the survivor action may not recover all of the damages (such as damages for pain and suffering) that may have been awarded if the injured party were still living.
Types of Damages
There are various types of damages available in a personal injury case. The amount and type of damages actually awarded depend on the facts of the case. Generally, damages are compensatory or punitive. Compensatory damages may include compensation for medical expenses. The claimant (injured party, family member/spouse/partner, estate) may show medical expenses by giving the court medical bills, his or her doctor’s testimony, medical reports or any other medical information that will prove the amount of medical costs the victim incurred. Other types of compensatory damages include the injured person’s loss of income, proven by documentation of gross income or past profits earned by the injured party, loss of future earnings, pain and suffering, intentional infliction of emotional distress, shortened life expectancy, loss of enjoyment of life and other damages suffered by the victim.
Punitive damages are additional damages provided by statute that are intended to punish the defendant for wrongdoing. They are damages often awarded in addition to compensatory damages. The judge or jury may choose not to award punitive damages based on the facts of the case. Punitive damages may also not be available in all situations, or in all jurisdictions.
Furthermore, when the court is determining damages, if contributory negligence (action by the victim was a partial cause/or contributed to his or her injury) has been proven, the court will often reduce the amount of damages the victim, or victim’s family, may be awarded. The reduction will be determined by the amount of contributory negligence attributed to the injury sustained.