Picture this: You are driving to the grocery store on your way home from work and another driver runs a red light and smashes into the side of your vehicle. You suffer a number of debilitating injuries and are not able to go to work for months. You are in a constant state of pain and have trouble sleeping and doing the things you previously did as part of your routine.
The question becomes: what type of damages (i.e., compensation) am I entitled to pursue against the other driver in my personal injury lawsuit?
The purpose of damages in a negligence claim is to bring the injured party back to the position they would have been in if the negligence (in our example, the car accident) had not occurred (as much as money can do that).
The purpose of this article and my next two articles will be to explore the type of damages that the individual in the example noted above would be entitled to claim.
The purpose of damages in a negligence claim is to bring the injured party back to the position they would have been in if the negligence (in our example, the car accident) had not occurred (as much as money can do that).
In October of 2015 I wrote an article on punitive damages in personal injury cases and specifically noted that in cases involving negligence it would be extremely rare for a court to award punitive damages because punitive damages are intended to punish the wrongdoer and negligence is an ‘unintentional’ tort.
As a result, the focus of this series of articles will be on compensatory damages (or ‘actual damages’) which are meant to compensate the injured party for the actual losses they have suffered.
Compensatory damages are further divided into various categories and include general damages, lost income (past and future) and special damages.
Lost income is often a significant consideration in an injury claim and we have to consider both income lost up to the date of settlement or trial and income that may be missed out on in the future, after settlement or trial.
General damages are non-monetary losses which are suffered by the injured party (also called non-pecuniary losses). General damages cannot be specifically calculated and include compensation for pain and suffering and the general negative impacts that injuries have on your day-to-day life. These damages will be the focus of the second article in this series.
Special damages are damages that can be specifically calculated and are intended to compensate the injured party for a quantifiable loss. We often refer to these as out-of-pocket expenses for things like medications, treatment costs and other medical expenses not covered by health care.
Lost income is often a significant consideration in an injury claim and we have to consider both income lost up to the date of settlement or trial and income that may be missed out on in the future, after settlement or trial. These damages will be discussed in my third article in this series.
The terminology alone can be confusing, not to mention the actual theory and practice behind calculating and determining which damages are appropriate in which cases. Your legal counsel will be able to determine which damages will apply in your specific case, however, it can be helpful to have a general understanding of what the different categories of damages are. In addition, there are some things you may want to do in the period of time immediately following the accident in order to make these calculations easier for your counsel. For example, you may want to being keeping a file at home with all of the receipts for items you have had to purchase as a result of the accident (i.e. medications, medical equipment, etc.). The next two articles will also provide some additional tips to make things easier for you and your lawyer.
Greg Pratch is a lawyer and partner with Pushor Mitchell LLP. He practices in the area of litigation with a particular emphasis in personal injury matters and tax disputes
