Tort law covers personal injury laws. This means that the case is heard in civil, rather than criminal court. The purpose is to ensure victims are able to be financially compensated for losses they have sustained as a result of the negligence of a third party.
Personal injury rules can apply in a range of situations, including:
- Accidents – If someone’s negligence leads to someone else sustaining an injury. These include slips and falls, car accidents and medical malpractice.
- Intentional acts – If someone intentionally behaves in a way to cause harm to someone else. This includes assault and battery, for instance.
- Defective products – If a manufacturer of a product causes injury to the user of a product due to product problems.
- Defamation – Where someone causes harm to someone else by defamatory statements.
Personal injury laws mainly stem from common law rules. These laws have been made by judges, rather than by statutes or bills. However, each state has its own common law, so there are some notable differences. At the same time, the Restatement of Torts offers national guidelines.
At the same time, some statutory laws also exist for personal injury cases. A good example of this is the workers’ compensation law. Furthermore, all states have a statute of limitations in place, which decides how long after an injury someone can make a claim.
Every accident is different, which is also why it is hard to put firm guidelines in place in terms of personal injury damages. However, there are a few standard steps that will be involved. These are:
- An injury has been caused.
- A plaintiff states that a defendant was in breach of his or her legal duty of care.
- Talks on a possible settlement take place.
- An agreement is reached, or the case goes to court.
Types of Damages
Plaintiffs may seek compensation for the damages they have sustained as a result of an injury. There are two categories of damages that can be awarded:
- Compensatory damages, which are either general or special. These aim to compensate for the harm that was suffered as a result of an accident.
- Punitive damages, which are not always awarded. These are designed to punish the wrongdoer, although the plaintiff will receive the financial award.
Looking at this in slightly more details, there are:
- Special Compensatory Damages – These include all the expenses that were suffered as a result of the injury, as well as losses. There are no limits on the amount of damages. They usually include loss of (future) earnings, current and future medical bills, household expenses, costs incurred due to cancelling or altering plans.
- General Compensatory Damages – These include non-monetary damages that are sustained due to the injury. They usually include loss of companionship or consortium, mental anguish and pain and suffering.
- Wrongful Death Damages – This is awarded to the surviving family and includes such things as cost of medical care before death, burial and funeral expenses, loss of financial contribution, emotional distress, loss of companionship and consortium and loss of support and services.
- Punitive Damages – These are only awarded if the defendant’s behavior was reprehensible or despicable, such as a malicious or wanton act or fraud. These include sexual assault, aggravated battery or financial fraud, for instance.
As soon as a settlement is reached or, if it goes to court, a judge had awarded damages, the plaintiff is entitled to them. However, actually collecting them can take a long time. This is often due to the fact that defendant may not have the money to pay for the damages owed. Generally speaking, interest will accrue until it is fully paid. In cases where liability insurance exists, the insurance company will be responsible for the payout.
How Much Can You Get?
The most important thing in terms of valuing the damages you may be awarded is how bad the injuries were. You will almost always be awarded the special compensatory damages to cover you for actual financial losses as a result of the accident. The valuation bar, however, is generally set based on the type of accident.
It is very difficult to put a set amount for an injury, not in the least because most people will sue for pain and suffering. Most insurance companies have now created algorithms that relate individual injuries to reasonable pain and suffering.
Unfortunately, there is no scientific method to determine this. Hence, different categories have been created. It is hoped that this will make the awards process fairer overall. Hence, there are:
- Soft tissue injuries, where the patient can only describe the pain and suffering. These include sprains, for instance, and are classed as less painful or serious than others.
- Hard injuries, which are detectable through medical technology. These injuries are more serious and bigger damages are paid out. The value depends on the exact type of injury. Common injuries include broken bones, head injuries, cartilage or ligament tears, dislocations and separations, wounds, injuries to the spine or vertebrae.
Calculating the exact amount you will receive following a personal injury claim can be very complicated as so many factors come into consideration. The “special damages” are usually easiest to work out, as they can be underpinned by receipts and wage slips. Other damages, however, are more complex. This also demonstrates why it is so important to seek good legal advice if you have sustained an injury.