Download pdf - Punitive Damages for Gross Negligence in a Personal Injury Case

8/19/2019 Punitive Damages for Gross Negligence in a Personal Injury Case

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Punitive Damages for GrossNegligence in a Personal InjuryCasePunitive damages are rare in injury cases, and are meant to

punish the defendant. Here's how they work.

The general public is probably familiar with the term “punitive damages”

due to high-profile jury verdicts. However, where a case proceeds to trial,

punitive damages are awarded in a very small percentage of injury cases.

In order to be awarded punitive damages, the defendant’s behavior must be

especially reprehensible and deserving of punishment.

In this article we'll explain what punitive damages are and when they might

be awarded in a personal injury case.

Damages in General

Damages are generally awarded to compensate an injured person for the

harm caused by the defendant’s actions. There are a number of

different types of compensation for an injury, including compensation for

physical pain and suffering, physical impairment, mental anguish, loss

wages, and medical expenses.

(See Alllaw's section onPersonal Injury Damages for more information.)

For example, suppose Tom was injured in a car accident where the other

driver (Mark) was at fault. Tom can recover damages for permanent lost

mobility in his arm, for missing two months of work, and for his medical

expenses. Tom’s damages would be awarded based on the money he lost

as a result of Mark’s actions, and based on the negative impact the

accident has had on his life.

http://www.alllaw.com/resources/personal-injury/personal-injury-damages-and-compensationhttp://www.alllaw.com/resources/personal-injury/personal-injury-damages-and-compensation


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What are Punitive Damages?

Unlike regular damages, punitive damages are meant to punish and are not

directly tied to a tangible injury. They're not technically meant tocompensate the plaintiff for a specific loss, although the plaintiff is the one

who ends up receiving punitive damages from the defendant.

So, when will punitive damages be possible? In many states, a finding of

punitive damages requires intentional misconduct or gross negligence.

Other states require a defendant to act with recklessness, malice or deceit.

Punitive damages can be awarded in most cases, but are generally not

included in a breach of contract case.

Gross Negligence.Gross negligence is defined as conduct that is reckless

and constitutes a conscious disregard or indifference to other’s safety, life,

or rights. While ordinary negligence involves the violation of a general duty

to act with reasonable care, with gross negligence there is an added

element of recklessness. For example, a business may beliable for

negligence for failing to fix an old roof that later collapses and hurts

customers. However, let's say that a building inspector informed thebusiness that the roof must be fixed due to its dangerous condition, and the

business was ordered not to keep that part of the building open to the

public in the meantime. The business ignores this mandate, and the roof

collapses three months later, injuring customers. In that case, the business

may be liable for gross negligence. The business knew of the roof’s

condition and consciously disregarded its customer’s safety.

It's important to note that, where there is gross negligence, governmentalentities and employees may lose their otherwise generally applicable

immunity from liability for personal injury claims.

Rationale for Punitive Damages.Punitive damages are meant to punish

and to deter similar wrongful or repugnant conduct.

In the car accident example above, suppose that Mark intentionally

sideswiped Tom’s car after he thought that Tom cut him off on the highway.Mark engaged in intentional misconduct and purposely hit Tom’s car. Tom

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should be awarded damages to compensate him for his injuries. Also, Tom

would have a good claim for punitive damages. Tom can argue that Mark

should be punished for intentionally causing his injuries and should be

punished to deter other people from acting in the same dangerous manner.

Limitations on Punitive Damages. Some states like Florida place

limitations or “caps” on punitive damages awards. Florida does not allow a

punitive damage award to exceed three times the amount of the award of

compensatory damages or $500,000, whichever is higher. Check the law in

your state or talk to an attorney to find out whether such caps are in place

where you live.

Sanctions for Lack of Reasonable Basis. There must be a reasonable

basis for an injured person to seek punitive damages in a personal injury

lawsuit. Where there is limited or no evidence of intentional misconduct,

gross negligence, or deceit, a court can levy monetary sanctions on the

injured person and his or her attorney for seeking punitive damages. By

requiring a reasonable basis for asking for these kinds of compensation,

courts are trying to discourage frivolous claims for punitive damages in

personal injury cases.

http://www.alllaw.com/articles/nolo/personal-injury/punitive-damages-gross-

negligence.html

Elements of Actual Damages in Negligence

Cases.Posted on Oct 9, 2010 by attorney Dan Denton

Filed under: Lawsuits and disputes

When one person is injured by the nelient acts o! another, the injured

person is entitled to be !ully co"pensated !or all injuries directly or

pro#i"ately resultin !ro" any nelient acts or o"issions by the

de!endant$

http://www.avvo.com/attorneys/29902-sc-dan-denton-1759510.htmlhttp://www.avvo.com/topics/lawsuits-and-disputeshttp://www.avvo.com/attorneys/29902-sc-dan-denton-1759510.htmlhttp://www.avvo.com/topics/lawsuits-and-disputes


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%n deter"inin the a"ount o! co"pensation !or injuries su!!ered by the

plainti!! as a result o! the de!endant&s nelience, the jude in a jury trial will

instruct the jury that it is proper !or it to consider and award past, present,

and !uture da"aes !or the !ollowin ele"ents o! da"aes, or that these!actors should be considered and included, when appropriate and

supported by the e'idence, in the jury(s award:

• Loss o! inco"e)

• Loss or i"pair"ent o! earnin capacity)

•Out*o!*poc+et e#penses)

• edical e#penses, includin physicians, hospital, "edicines, physical

therapy e#penses, rehabilitation e#penses, and transportation

e#penses connected with "edical treat"ent)

• -ny !uture da"aes resultin !ro" per"anent injuries)

•

Dis!iure"ent)

• Loss o! !a"ily ser'ices)

• depri'ation o! nor"al li!e e#pectancy)

• -lteration o! li!estyle)

• Psycholoical trau"a)

• ental anuish)

• ental distress)

• -pprehension)

• -n#iety)

• ."otional injury)


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• Psycholoical injury)

• Depression)

• /e#ual dys!unction)

• Pain and su!!erin)

• Loss o! enjoy"ent o! li!e$

ontent adapted !ro" alph 3in -nderson, 4r$, /outh arolina e5uests

to hare 6 i'il, 718*8$

Puniti'e Da"aes

%n cases in'ol'in ross nelience, will!ul conduct or rec+lessness on the

part o! the wrondoer, the plainti!! "ay also see+ puniti'e da"aes in

addition to actual da"aes$ Puniti'e da"aes are i"posed as punish"ent$

hey are not intended to co"pensate, but are allowed in the interest o!

society in the nature o! punish"ent and as a warnin and e#a"ple to deter

the wrondoer and others !ro" co""ittin li+e o!!enses in the !uture$

oreo'er, they ser'e to 'indicate a pri'ate riht by re5uirin the wrondoer

to pay "oney to the injured party$ %! puniti'e da"aes are souht, a jury

would recei'e a detailed e#planation !ro" the jude as to the what type o!

circu"stances would justi!y an award !or puniti'e da"aes, as well as a list

o! !actors the jury "ust consider in deter"inin whether puniti'e da"aes

should be awarded and in deter"inin the a"ount o! the award$

http://www.avvo.com/legal-guides/ugc/elements-of-actual-damages-in-

negligence-cases-1

Corporate manslaughter cases in 2014 to date

To date 2014 has seen two convictions and two acquittals under the Act, details of

which are set out below.


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PS and JE Ward Ltd – Not guilty

Tractor driver Grzegorz Krystian Pieton was electrocuted when the hydraulic lift

trailer he was towing hit an overhead power cable in Norfolk in July 2010. He

subsequently died.

Mr Pieton's employer, PS and JE Ward Ltd, was acquitted of the charge of corporate

manslaughter in April 2014. This was the first case of an organisation being

acquitted of such a charge. During the hearing it emerged that Mr Pieton had

attended a training course for forklift truck drivers that covered working under live

cables and it appeared that Mr Pieton was acting under his own initiative in carrying

out the task in hand rather than following instructions from a director, both factors

which are believed to have contributed to the outcome of the case.

The company was however convicted and fined under section 2(1) of theHealth and

Safety at Work Act 1974 which states that "It shall be the duty of every employer to

ensure, so far as is reasonably practicable, the health, safety and welfare at work of

all his employees". The company was fined £50,000 and ordered to pay costs of

£47,932.

Cavendish Masonry Limited – Guilty

In May this year Cavendish Masonry was found guilty of corporate manslaughter

following the death of its employee David Evans during the refurbishment of a largeOxfordshire estate in February 2010. A two-tonne limestone block fell off a concrete

lintel and crushed the 23 year old. The company had previously pleaded guilty to an

offence under section 2(1) of theHealth and Safety at Work Act 1974.

Cavendish Masonry were found to have committed a gross breach of their duty of

care in their management and organisation of work on the estate, by failing to take

reasonable care in the planning and execution of those activities. As at the time of

writing, details of the sentence were not available.

MNS Mining Limited – Not guilty

In June 2014 MNS Mining Limited was acquitted of four counts of corporate

manslaughter following the drowning of four individuals trapped in the Gleision drift

mine in 2011 when 650,000 gallons of water flooded the Swansea Valley mine

following a controlled explosion.

The prosecution claimed the mine manager, charged with four counts of gross

negligence manslaughter, had not carried out adequate inspections the day before

the incident, but evidence from an expert geologist confirmed that the water couldhave gathered following the explosion. The mine manager was also acquitted.

http://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_ohttp://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_ohttp://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_ohttp://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_ohttp://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_ohttp://cedrec.com/index.php?page=environmental&category=summary&subcategory=act&doctype=uk&doc=3815&title=index_o


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Mobile Sweepers (Reading) Limited – Guilty

This case involved the death of Malcolm Hinton, who was crushed to death whilst he

carried out repairs to a road sweeper. The company pleaded guilty to corporate

manslaughter and was fined £8,000 and ordered to pay £4,000 in costs. Thecompany was also ordered to publicise its wrongdoing. The company's sole director,

Mervyn Owens, was fined £183,000 after he admitted breaches of health and safety

legislation and was disqualified from being a company director for 5 years.

Practical steps

There are a number of practical steps which organisations can take to minimise the

risk of prosecution under the Act and under general health and safety legislation. In

particular, ensuring the following:

• The formulation and regular review of a written health and safety policy.

• Regular risk assessments to identify and manage the source of risks to

employees and members of the public.

• Clearly defined roles and responsibilities for safety matters – from the board

down.

• Proper and adequate training.

• The appointment of a member of the board with overall responsibility for

health and safety.

• Regular reports to the board on matters concerning health and safety.

• A process for monitoring the effectiveness of the health and safety system and

reviewing and amending it as appropriate.

http://www.eldsher.com/publications/2014/10/corporate-manslaughter-cases-

in-2014

hat "re #ome $ossible %emedies in &ort 'aw(

" victim of a tort may have several possible remedies available under tort laws. &here

are three basic types of remedies in tort law: 'egal %emedies )*damages+,

%estitutionary %emedies and uitable %emedies. ach of these is discussed brieybelow:


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Legal Remedies for Torts: "lso nown as *damages+ these are monetary

payments made by the defendant for the purpose of compensating the victim for their

injuries losses and pain/suering. &hese are calculated according to the victim3s losses

rather than the tortfeasor3s gains. $unitive damages may be added in some types of tort

claims. laimants that win a judgment in court are awarded pain and suering damages.

Restitutionary Remedies: &hese are also meant to restore the plainti to a

position of *wholeness+ as close as possible to their state before the tort occurred. &hese

can include:

%estitutionary damages: &hese are similar to damages e5cept that they

are calculated based on the tortfeasor3s gain rather than the plainti3s losses.

%eplevin: %eplevin allows the victim to recover personal property that they

may have lost due to the tort. 6or e5ample they may recover property that was stolen.

%eplevin can be coupled with legal damages in some cases.

jectment: &his is where the court ejects a person who is wrongfully

staying on real property owned by the plainti. &his is common in instances of continuing

trespass.

$roperty 'ien: 7f the defendant cannot aord to pay damages a judge may

place a lien on their real property sell the property and forward the proceeds to the tort

victim.

Equitable Remedies: &hese are available where monetary damages will not

adeuately restore the victim to wholeness. &hese can include:

&emporary %estraining 8rder: 9ictims of physical harm or harassment may

obtain a restraining order which prevents the defendant from maing contact with or

coming near to the plainti.

&emporary or $ermanent 7njunction: "n injunction may either prohibit

unlawful activity by the defendant or it may order them to tae armative steps.

7njunctions are common in trespassing and nuisance tort claims.

"s in any lawsuit the defendant may raise any available defenses to these types of

remedies.

"re "ll the &ypes of &ort %emedies "lways "vailable for very &ort(

;o- a large part of any tort lawsuit is set side for deciding which type of remedy is

appropriate for the victim.


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while placing a cap or limit on one of the options. " common combination of remedies is

replevin coupled with legal damages.

6or e5ample in a conversion )theft, case the judge may order replevin so that the

plainti can get their stolen property bac. 8n top of this the judge will typically order

the defendant to pay compensatory damages for the time that the plainti was not able

to use the property. &his is especially common in cases where the stolen property is

euipment or machinery that the plainti uses to generate their income. &he defendant

may then have to pay damages to compensate the plainti for lost wages.

=o 7 need a 'awyer for &ort %emedies(

&ort remedies should be chosen in a way that ma5imi>es compensation for the victim. "

lawyer can help determine which type of remedy would best compensate a tort victim for

their losses or injuries. 7f you suered losses from a tort you may wish to hire a lawyer to

advise you on the various types of remedies available in your jurisdiction.

onsult a 'awyer - $resent ?our ase ;ow@

'ast Aodied: 0B-1B-201C 0D:02 "A $=&

http://www.legalmatch.com/law-library/article/remedies-in-tort-law.html

;# v 7bbett E200CF ;#" 44C )1G =ecember 200C,

STATE OF NEW SOUTH WALES v DOROTHY ISABEL IBBETT

This is an appeal from a decision of the District Court awarding aggravated andexemplary damages against the State of NSW and in favour of Mrs Ibbett in

relation to the unlawful conduct of police officers

!t about "am in the morning# the son of Mrs Ibbett was being pursued by two

police officers who suspected the son of having committed a traffic offence The

son drove into Mrs Ibbett$s garage and closed the garage door %ne of the police

officers dived under the closing door and drew his revolver# pointed it in the

direction of the son and sought to arrest him Mrs Ibbett heard the commotion and

entered the garage through a side door and told the officer to leave The police

officer pointed the revolver at Mrs Ibbett briefly# demanding that the door be

opened for his fellow officer# before turning the gun bac& on the son The police

officers arrested the son and conducted a strip search on him in the vicinity of Mrs

Ibbett

Mrs Ibbett was successful in her action for trespass and assault The trial 'udge

awarded ()*#+++ in general damages for the assault and ()+#+++ in exemplary

damages In relation to the trespass# the trial 'udge awarded ("+#+++ in aggravatedand ("+#+++ in exemplary damages

http://www.legalmatch.com/link.php?ai=27&ar=/home/modify.do&supCatIds%5B%5D=291http://www.legalmatch.com/link.php?ai=27&ar=/home/modify.do&supCatIds%5B%5D=291


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The primary issue for determination by the Court of !ppeal was whether the award

of exemplary damages was precluded by the Civil Liability Act "++" ,NSW- and

whether# in any event# the award was 'ustified in the circumstances

D.CISI%N/

,)- !ppeal dismissed

,"- !llow the cross0appeal in part and vary the orders in the District Court so as to

,a- set aside orders ) and "

,b- in relation to the assault# add an additional amount of ()+#+++ on account

aggravated damages1 and

,c- set aside the awards of exemplary damages and award in lieu thereof

,i- an amount of ("*#+++ with respect to the assault# and

,ii- an amount of ("+#+++ with respect to the trespass

,2- Direct that 'udgment be entered for the 3laintiff in the sum of ()+*#+++

,4- %rder the !ppellant to pay the 5espondent$s costs of the appeal and cross0

appeal

Mental anguish is an element of non-economic damages usually sought inpersonal

injury cases,medical malpractice and sometimesdefamation cases. Generally, "mental

anguish" translates to certain types of suffering that may include distress, anxiety, fright,

depression, grief, or trauma. In many jurisdictions, plaintiffs may recover for mental

anguish; however, some states set compensation caps on non-economic damages.

Non-Economic Damages

Non-economic damages cover certain type of injuries that are not out-of-pocket losses,

including pain and suffering, disability, disfigurement, humiliation, mental anguish, loss of

consortium (companionship) as well as emotional distress. Because these damages are

often difficult to calculate and, juries may overcompensate and non-economic damages

can exceed actual economic damages. There is no standard formula to calculate thesenon-economic damages; therefore they vary on a case by case basis and are referred to

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/http://www.alllaw.com/topics/personal_injuryhttp://www.alllaw.com/topics/personal_injuryhttp://www.alllaw.com/topics/medical-malpracticehttp://www.alllaw.com/articles/nolo/personal-injury/calculating-damages-defamation-case.htmlhttp://www.alllaw.com/articles/nolo/personal-injury/calculating-damages-defamation-case.htmlhttp://www.alllaw.com/articles/nolo/personal-injury/emotional-distress-damages.htmlhttp://www.alllaw.com/articles/nolo/personal-injury/emotional-distress-damages.htmlhttp://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/http://www.alllaw.com/topics/personal_injuryhttp://www.alllaw.com/topics/personal_injuryhttp://www.alllaw.com/topics/medical-malpracticehttp://www.alllaw.com/articles/nolo/personal-injury/calculating-damages-defamation-case.htmlhttp://www.alllaw.com/articles/nolo/personal-injury/emotional-distress-damages.html


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as subjective damages because they differ according to a plaintiff's personal or

subjective experience.

In most cases, to recover non-economic damages, the plaintiff must show by a

preponderance of the evidence (which means "more likely than not") that they sufferthese injuries. If they cannotmeet this burden of proof, they will not recover.

History of Damages for Mental Anguish

Damages for pain and suffering, including mental anguish, date back to Roman delicts,

which is equivalent to today's tort system. The basic Roman delicts wereiniuria (injury to

person) anddamnum iniuria datum (damage to property, including slaves). Underiniuria,

the wronged party had to show that the tortfeasor acted willfully and intentionally to

recover damages. The action was based on the plaintiff's "sense of outrage" and not onactual economic loss. Therefore the plaintiff could be compensated for "pain or distress

of mind or body" in addition to any pecuniary damages. Whereasiniuria required a

showing of ill will,damnum iniuria datum only required a showing of negligence.

Eventually, Roman law evolved into only compensating for pain and suffering where the

tort was intentional and only providing pecuniary damages in the sole case of

negligence.

Under early English law compensation was afforded for slander and libel, and much

later, shame, because shame "was keenly felt."

Compensation Caps on Non-Economic Damages

Several states have sought to control increasing non-economic awards by

implementingcompensation caps for these types of damages. Most of these

compensation caps directly address medical malpractice issues where malpractice

premiums rose to a level to become disincentives for physicians to practice. The tort

reform of non-economic damages was intended to ameliorate this situation and protect

doctors and health facilities from exorbitant damages. However, advocates against caps

argue that caps unduly penalize those victims who may require a level of damages to

compensate for lifelong losses that can never be regained.

California is one state where the compensation cap on non-economic damages in

medical malpractice caseshas been codified. Under California's Medical Injury

Compensation Reform Act of 1975 (MICRA), a patient's non-economic damages may

not exceed $250,000.

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Consult an Attorney for Legal Advice

If you suffer mental anguish arising from a case of personal injury or medical

malpractice, you may recover non-economic damages. However, in some jurisdictions,

you may only be allowed to recover a specified maximum. Also, you will have to proveyour injuries by a preponderance of the evidence. Talk with an experienced attorney to

discuss the details of your case.

http://www.alllaw.com/articles/nolo/personal-injury/damages-compensation-

mental-aguish.html

Most people have heard the term "pain and suffering," but they may not necessarily know that it is a key component of many a personal

injury case. But what is pain and suffering from a legal perspective, and more importantly, how is it calculated for purposes of an injury-

related insurance claim or lawsuit?

What is "Pain and Suffering"?

There are two types of pain and suffering: physical pain and suffering and mental pain and suffering.

Physical pain and suffering is the pain of the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the

claimant has endured to date, but also the detrimental effects that he or she is likely suffer in the future as a result of the defendant’s

negligence.

Mental pain and sufferingresults from the claimant's being physically injured, but it is more a by-product of those bodily injuries.

Mental pain and suffering includes things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation,

anxiety, and shock. Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of

having to endure the physical pain and trauma of the accident.

Very significant mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, moodswings, and/or sleep disturbances. Even more severe mental pain and suffering can even constitute post-traumatic stress disorder

(PTSD).

Mental pain and suffering, like physical pain and suffering, includes not just the effects that the victim has endured to date, but also the

mental pain and suffering that he/she will more than likely suffer into the future.

Eam!les of Pain and Suffering

Let’s look at a couple of examples of how car accident victims might experience pain and suffering.

First, let’s take a more severe case. Let’s say that someone got into a car accident that caused multiple broken bones along with a

severe concussion. That is a pretty serious accident. As a result of these injuries, the claimant became depressed and angry, had

difficulty sleeping, and experienced significant loss of appetite. As a result of these problems, the claimant was referred to a psychologist

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and a therapist. All of these problems are directly related to the accident, and the claimant is entitled to compensation for mental pain

and suffering due to the accident.

Mental pain and suffering can sometimes get so bad that it prevents the victim from returning to work even after the physical injuries

have healed. In this case, this victim’s depression due to the accident might linger long after his/her broken bones and concussion

healed. In such a case, the victim would still be able to claim any damages related to the mental pain and suffering, such as lost income.

Next, let’s look at a less serious example of mental pain and suffering. Let’s say that someone gets into a car accident and suffers back

strain. As a result of the back strain, the claimant is prevented from exercising for several weeks, and, during this time, is prevented from

running in a marathon that they had been training months for. As a result of missing the marathon, the claimant is angry, frustrated,

unhappy, and maybe even a little depressed. This claimant has no need for mental health assistance, but these effects, while

comparatively minor, still qualify as mental pain and suffering.

o# to Calculate Pain $nd Suffering

Judges do not give juries much in the way of guidelines for determining the value of pain and suffering in a personal injury lawsuit.

There are no charts for juries to look at in order to figure out how much to award. In most states, judges simply instruct juries to use their

good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain

and suffering.

You may have heard about a "multiplier" being used in personal injury cases, where pain and suffering is calculated as being worth

some multiple of the injured person’s total medical bills and lost earnings (which are called the claimant's “special damages”).

Often, the "multiplier" is considered to be somewhere between 1.5 and 4, meaning that the pain and suffering is 1.5 to 4 times the value

of the claimant's special damages. However, the "multiplier" concept is only a very rough estimate and does not apply in all personal

injury cases. It is most useful in minor injury cases, where the total damages are less than $50,000. But even in small cases, you should

be very careful about applying the "multiplier."

There are many other factors that affect the value of the pain and suffering component of a personal injury case. These include:

• whether the plainti is or will be a good or bad witness

• whether the plainti is lieable

• whether the plainti is credible

• whether the plainti3s testimony regarding his or her injuries is consistent

• whether the plainti is e5aggerating his or her claims of pain and suering

• whether the plainti3s physicians support the plainti3s claims of pain and suering

• whether the jury thins that the plainti lied about anything even something relatively minor )as a general

rule if a plainti lies the plainti loses,

• whether the plainti3s diagnosis injuries and claims mae common sense to the jury

• whether the plainti has a criminal record

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Plaintiffs see% !ersonal injury com!ensatory damages from defendants in tort actions &ecause defendants have caused !ersonal injury to the !laintiffs &y

negligent or malicious action or omission' Personal injury can &e mental( !hysical( !sychological( emotional( or financial' Com!ensatory damages can &e

sought for loss of earnings( medical e!enses( and mental( !hysical !ain( and suffering in !ersonal injury actions' Com!ensation can also &e sought for any

other damages that are a reasona&le conse)uence of the negligent act or accident' *he jury or judge eercises #ide discretionary !o#er in granting

com!ensatory damages in matters of !ersonal injury'

Com!ensatory damages can &e given in t#o forms' S!ecial damages that com!ensate victims for monetary losses and general damages that com!ensate

victims for non+monetary losses'

Com!ensatory damages for !ersonal injury include,

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Cost of medical e!enses and treatment, Damages for medical e!enses include the costs of &oth !ast and future medical care and reha&ilitation'

-uture costs are calculated &y estimating the !atient.s medical needs for the rest of his/her life e!ectancy' 0edical &ills are considered su&stantial

evidence of the seriousness of an injury' When there is a chance that treatment #ill etend for a lifetime( the com!ensation amount #ill also su&stantially

increase'

Cost of living #ith a disa&ility, $n injury resulting in a disa&ility that re)uires a vic tim to &asically alter his/her lifestyle' Com!ensatory damages

can cover the costs associated #ith this change' When an injured !erson suffers severe disa&ility #hich results in living in a #heel chair or only #ith the

hel! of a third !erson com!ensation under the head cost of living #ith disa&ility can &e increased'

1oss of #ages and earning ca!acity, $ victim can recover any #ages lost #hile recovering from an injury' $ victim can lose #ages or days of #or%

&ecause of treatment for the injury suffered2i3' *he victim can also recover for any lost earning ca!acity suffered as a result of an injury' When the nature

of the injury is serious and results in a disa&ility for a long !eriod( the victim can claim com!ensation under loss of future earnings' If the victim #as

em!loyed at the time of the injury( his/her earnings !rior to the injury or average income over recent years can &e ta%en as evidence of the value of his/her

lost earnings2ii3' In a !ersonal injury action( an injured !erson #ho is living can recover for damages for lost future earnings' o#ever( if the victim has

died( damages for lost future earnings are recovera&le only through a #rongful death action2iii3'

Cost of re!lacement or re!air of !ro!erty, $ victim can also recover the costs of !ro!erty damage suffered in an accident' Pro!erty is ty!ically

valued at its fair mar%et value at the time of the injury' Com!ensation for any damage in !ro!erty can &e recovered along #ith com!ensation for !hysical

injuries' Pro!erty damage can &e considered if the !ro!erty has &een com!letely destroyed so that it is of no further use and has no salvage value' *he

measure of damages can &e set at the fair mar%et value of the !ro!erty immediately &efore its loss' Pro!erty damage is calculated &ased u!on the value of

the !ro!erty !rior to the accident and not re!lacement value' If the !ro!erty can &e re!aired( the amount of damages can &e set at the amount it costs to

re!air the !ro!erty !lus the loss of its use &y the o#ner' o#ever( if the cost to re!air the !ro!erty eceeds the fair mar%et value of the !ro!erty &efore

loss( the damages can &e limited to the fair mar%et value'

-uneral e!enses, -amily of a !ersonal injury victim can recover costs of any funeral e!enses incurred as a result of the injury'

Pain and suffering, an injured can claim damages for !ain and suffering that result from the injury' Damages include com!ensation for actual

!hysical !ain and emotional distress' Emotional distress is defined as the frustration( fear( anger and loss of enjoyment of life associated #ith suffering

from a de&ilitating injury2iv3' $ny !laintiff is entitled to get com!ensated for the !ain and sufferings endured &y him/her as a result of the #rongful act or

omission of a defendant' *he !ain and suffering also includes the suffering that the !erson endured during any surgery or medical treatment that the

!erson #ent through that #as reasona&ly re)uired &y the accident' o#ever( damages under the element !ain and suffering can not &e a#arded if there is

no !roof of severe injury and if there is sufficient !roof that the !ain is just imaginary2v3' In a state of unconsciousness( !ain cannot &e e!erienced and

there can &e no recovery for !ain and suffering2vi3' o#ever( infants can recover for !ain and suffering caused &y a negligent accident &ecause they are too

young to e!lain their !ain2vii3' *he use of sedatives and drugs to relieve the injured of the !ain is also !rominent evidence to sho# the gravity of the !ain

and suffering'

1oss of consortium, S!ouses of !ersonal injury victims can receive damages for the loss of the emotional and intangi&le elements of marriage(

such as loss of affection( solace( comfort( com!anionshi!( society( assistance( and seual relations2viii3' Generally( in a tort action( the !erson injured is

a#arded the damages' In loss of consortium actions( the family of the tort victim #ho suffered loss should &e com!ensated' When a s!ouse is

inca!acitated or is dead as a result of an accident caused &y a third !arty( the other s!ouse goes through a !ain and loneliness that is also severe' 1oss of

consortium can &e demanded #hen normal romantic and recreational lives of the s!ouses are affected &y an accident caused &y the negligence of a


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tortfeasor' Children of an injured or dead !erson can also move an action for loss of consortium' *hey can recover the damages for the !ast and future

losses of their lost !arent2i3'

0ental anguish and emotional distress, in a !ersonal injury action( damages can also &e sought for mental anguish' 0ental agony can &e

inferred from !hysical !ain and suffering23' $ jury can a#ard damages under their discretionary !o#er to an emotionally distressed !erson if it is evident

from the !roofs that the mental distress #as caused as a result of the accident' *he amount that can &e a#arded is also under the jury.s discretionary

!o#ers' Damages can also &e a#arded for traumatic neurosis and mental de!ression that relates to !hysical injuries2i3' 1oss of a&ility to do #or% or

!ermanent disa&ility renders a victim mentally de!ressed #ith grief and all these factors are considered &y the jury #hile determining damages' Damages

can &e given to victims for their e!erience of terror from im!ending death2ii3'

1oss of enjoyment of life, Damages for loss of enjoyment of life arise from !hysical disa&ility that include a cosmetic deformity2iii3' *he

!laintiff.s ca!acity to live a normal life should &e affected &y such deformity' $ !erson can claim damages for loss of enjoyment of life if the !hysical

im!airment resulting from an accident limits the ca!acity to share in the amenities of life' *he jury can a#ard reasona&le amount as damages if su&stantial

evidence sho#s that the injured !erson had enjoyed certain amenities in life and only &ecause of the accident is not a&le to enjoy them'

Permanent disa&ility and disfigurement, If due to an accident( a !erson is left #ith a disfigurement or !ermanent disa&ility the !erson can see%

additional com!ensation' -or eam!le( there have &een some medical mal!ractice cases #here the medical staff am!utated the #rong lim& of a !atient

#hich left the !atient !ermanently disfigured and disa&led' *his !rovides the !atient additional com!ensation under the category of !ermanent disa&ility

and disfigurement'

$ jury ta%es into consideration certain factors &efore a#arding com!ensation in !ersonal injury cases' *he victim.s age( earning ca!acity !rior to the

accident( mental and !hysical health( ha&its( nature and etent of the injuries( suffering of the victim and the !eriod of suffering( loss of income( im!act of the

injury on victim.s life style are all considered &y the decision ma%ers &efore calculating the com!ensation for !ersonal injuries in economical terms2iv3' *he

jury relies on the su&stantial evidence !rovided &y a !laintiff on the loss suffered &y the !laintiff &ecause of the injury caused &y a third !arty.s

negligence2v3' *he severity of the injury and length of the illness #ill also &e ta%en into consideration &y the jury &efore a#arding the damages2vi3' While

determining com!ensation for an injured minor( the jury should ta%e into consideration the a&ility to !roduce future earnings &ecause the minor has not

ac)uired an earning ca!acity2vii3' o#ever( there should &e su&stantial evidence to !rove that the injury #ill have an effect on the future earning ca!acity of

a minor'

2i3 New Orleans, J. & G. N. R. Co. v. Bailey, 45 0iss' 678 90iss' :;