Understanding personal injury awards

Personal injury is an area of law that allows an injured person to claim damages against a third party for his or her negligence. The aim of the law in relation to this area is to allow the injured person to be compensated financially or made whole after he or she has suffered harm. In order to put a party in their pre-accident position, the court awards general damages, special damages and costs.

What I have observed over the years is that many persons, who unfortunately find themselves in an accident automatically believe that they will be millionaires and that's really not the case. Today, we will examine how the court determines or arrives at an appropriate award for an injured party.

Let's first examine the concept of general damages. This is the award made specifically for pain, suffering, and loss of amenities or enjoyment of your ordinary way of life. General damages awards are based on the medical evidence presented as the court will examine the type and severity of the injury, nature and extent of the injuries sustained, the nature and gravity of the resulting physical disability, pain and suffering, loss of amenities, and the extent to which one's earning capacity is affected.

It is a settled legal position that in determining the amount for compensation for pain and suffering and loss of amenities, the court must bear in mind that the injured party is to be placed in the position he/she would have been in had the accident not occurred.

It is difficult to quantify and calculate general damages, as it involves assigning an exact dollar amount to a subjective injury. In arriving at an award, the court grounds its decision using previously decided cases (precedents) with injuries similar, or of the same nature. For Instance, if over the years the court has always awarded an injured party $500,000 for whiplash injury, then it is highly unlikely that for the said injury the court will award you $1,000,000.

Let's now consider special damages. These are out-of-pocket expenses that can be determined by adding together all your quantifiable financial losses. So, for instance, you claimed that you paid to see the doctor. The court will need to see the receipt confirming this or else you will not be reimbursed. The same can be said about the purchase of medication, physiotherapy and any other out-of-pocket expenses.

It is well-established principle that special damages, which are generally capable of exact calculation, must be specially pleaded and proved and, therefore, in any personal injury matter, the injured party has a duty to prove his/her loss strictly.

Simply put, unlike general damages, where the court determines the award based on precedents, special damages can be quantified and as such, putting your receipts in a safe place is very important.

Along with being awarded general and special damages, the court usually awards 'costs' to the winning party. The term 'costs' usually refer to the expenses that a party incurs during the course of conducting a claim. These expenses mainly include, but are not limited to, the court fees and attorney's fees.

Attorney's fees usually cover the charges for interviewing clients and witnesses, conducting correspondence, preparing documents and appearing in court. There may also be charges incurred for having documents served.

Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. He may be contacted via email Odanemarston@gmail.com or star@gleanerjm.com

This article is for general information purposes only and does not constitute legal advice.