John, a reader of this column, recently had to deal with a situation where damages for injuries received in a motor vehicle accident were assessed by the court. According to John, he did not get what he expected and asked for some explanation as to what are some of the things that a court considers in determining the award to be given for personal injury cases.

Generally, the object of an award of damages is to give the claimant adequate compensation for the damage, loss or injury suffered. As a general rule, the damages are divided into two main groups, that is to say, general damages and special damages. In a claim to recover damages for injury arising from a motor vehicle accident, general damages include pain and suffering while special damages include all medical expenses, transportation and loss of income, among other things. It might be useful to conclude that damages are compensation for a wrong. It is generally a lump-sum award agreed to by the parties, arrived at through mediation or awarded by the court.

The measure of damages is often said to be: "The sum of money which will put the party who has been injured in the same position as he would have been had he not sustained the wrong for which he is now getting the compensation or reparation." Even when no loss occurred, the court is generally minded to offer what is called nominal damages.

Issues to consider

The first principle that John must bear in mind is that there must be a wrong committed. This preliminary issue must be resolved at an early stage. Thereafter, the next critical issue is that of liability, that is to say, who is responsible for the wrong committed. Sometimes, the extent of the liability must also be considered to determine if the claimant has contributed to this wrong.

Since John did not get what he was expecting, it is of fundamental importance for him to note that the loss for which the claimant is compensated is reduced by many factors, some of which are that he would be unable to recover damages for that part of the loss due to contributory negligence, loss which the defendant did not cause, loss which is not within the scope of the contract or tort, loss which should be avoided or uncertain, among other things. For the court to arrive at what sum is reasonable for general damages, in John's case, the court would have looked at the medical report to determine the extent of the injuries sustained by John and make a comparison with similar cases where an award was given and then use the most recent (available) consumer price index to update the award. When the up-dated sum is arrived at, in can be discounted or increased depending on several factors.

On the other hand, with respect to special damages, generally you are required to provide receipts in support of your claim. For instance, you must provide the receipts from the doctor, the pharmacy, out-of-pocket expenses, loss of earnings and for other items claimed. It is well established in law that special damages must be specially pleaded and proved.

In John's case, it is very likely that he did not prove some items in the special damages and/or with respect to general damages, the court did not believe that this deserves, when assessed, the amount John had in mind.

Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at

knb@bishopfullerton.com.