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 patient’s 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 jury’s 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 plaintiff’s 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 victim’s 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 victim’s 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 party’s 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] Kemp’s 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)