Personal injury

Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property.[1]

In Anglo-American jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit, or "plaintiff," has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability.[2][3] Different jurisdictions describe the damages (or, the things for which the injured person may be compensated) in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.[4]

Types

A Chevrolet Malibu involved in a rollover crash

Common types of personal injury claims include road traffic accidents, work accidents, tripping accidents, assault claims, and product defect accidents (product liability). The term personal injury also incorporates medical and dental accidents (which may lead to medical negligence claims ) and conditions that are often classified as industrial disease cases, including asbestosis and peritoneal mesothelioma, chest diseases (e.g., emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermatitis, and repetitive strain injury cases. Of these, the most common are automobile collisions.[5] Personal injury cases may also include toxic torts, in which a contaminant transmitted by air or water causes illness, injury, or death (as in John Grisham's book, A Civil Action).

Some non-economical damages such as pain and suffering attributed to the damages, like for example having anxiety after a car accident, may be attributed to general damages that can be proved in court and may be entitled to monetary means of compensation. There are other torts, both intentional and non-intentional, that may be pursued and or mixed with personal injury.

Claims and payments

Depending upon the intent or negligence of a responsible party, the injured party may be entitled to monetary compensation from that party through a settlement or a judgment.

Although personal injury cases may result from an intentional act, such as defamation, or from reckless conduct, most personal injury claims are based on a theory of negligence. To hold a party or parties legally liable for injuries so damages based upon negligence, four elements must be proved:[6]

  1. The party had a duty to act reasonably according to the circumstances.
  2. The party breached the duty.
  3. The party’s breach of the duty caused you to be harmed.
  4. You suffered monetary damages due to the harm you suffered when the party breached its duty of care.

The amount of compensation for a personal injury will primarily depend on the severity of the injury. Serious injuries (such as broken bones, severed limbs, brain damage) that cause intense physical pain and suffering receive the highest injury settlements.

Lawsuits

As occurs in most civil cases, personal injury cases begin by filing with a court a document called a "complaint."[7] Typically, a complaint in a personal injury case identifies the parties to the lawsuit, specifies what the defendant did wrong, alleges that the wrongdoing caused the plaintiff's injury, and specifies what kind of compensation the plaintiff is seeking. The complaint generally sets out the facts that the plaintiff will attempt to prove, and the defendant may attempt to disprove, throughout the litigation.

In most countries, payments will be through a settlement agreement or a judgment as a result of a trial. Settlements can be either lump-sum or as a structured settlement in which the payments are made over a period of time.

In some countries, those prevailing in trial may recover their attorneys' fees from the opposing party. In the United States A party may be able to seek sanctions when the other party acts without legal basis or justifiable cause. For example, if the opposing party continues to object to the complaint without significant reason or justifiable cause, a party may apply a motion for punitive damages or that the opposing party is harassing and or speculating without merit or reason.

The manner in which attorneys are compensated for representing injured plaintiffs varies by jurisdiction. For example, in the United States, attorneys often represent clients on a "contingent fee basis" in which the attorney's fee is a percentage of the plaintiff's eventual compensation, payable when the case is resolved, with no payment necessary if the case is unsuccessful. Depending upon state regulations, a plaintiff's attorney may charge 1/3 of the proceeds recovered if a case is settled out of court or 40 percent if the matter must be litigated. Attorney fees are negotiable before hiring an attorney.

Although some jurisdictions have historically helped people obtain affordable legal representation, those systems have typically been narrowed and may exclude personal injury cases. For example, in England legal aid from the government was largely abolished in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful.[8]

In California, attorneys typically receive contingency fees of 35% of the total recovery obtained before a lawsuit is filed, and 45% if the recovery occurs after filing the complaint. In some types of cases, the judge handling the case may determine the total percentage of the settlement or the payment to the attorneys. Treating doctors or health care profession and/or insurance companies, Med-Cal, or other program paying for medical treatment may assert a lien against any recovery for what was paid to treat the plaintiff. These liens are paid once a settlement is reached or a judgment is received.

Time limitation

Many jurisdictions have statutes of limitations - laws that determine how much time you have to file a claim. If a lawsuit is not filed in a timely manner the statute of limitations provides a defense that can allow the defendant to have the case dismissed with no compensation to the plaintiff.

In England and Wales, under the limitation rules, where an individual is bringing a claim for compensation, court proceedings must be commenced within 3 years of the date of the accident, failing which the claimant will lose the right to bring his or her claim. However, injured parties who were under the age of 18 at the time of their accidents have until the day prior to their 21st birthdays to commence proceedings. A court has the discretion to extend or waive the limitation period if it is considered equitable to do so.[9] Another exception is if the accident caused an injury, as an example industrial deafness, then the three-year period will start from when injured party knew or ought to have known that he or she had a claim.[10]

In the United States, each state has different statutes of limitation, and within a state different types of injuries may have different statutes of limitation. Rape claims, for example, often have a much longer statute of limitation than other injuries. In some states such as Colorado, the statute of limitations starts to run once the injury is discovered. For example, if you were in a car accident and then 6 months later started having severe back problems, the statute would start when you noticed the injury.

In California, according to California Code of Civil Procedure Section 335, the statute of limitations in California is 2 years from the date of loss. A date of loss refers to the date in which the accident has happened. Minors in California who are filing a claim against an entity or person has until 2 years after their 18th birthday to satisfy the statute of limitations. For governmental claims, both minors and adults have 6 months to file a claim with its corresponding jurisdiction according to Government Code section 911.2. After filing a claim to satisfy Government Code Section 911.2, you have an additional 6 months to file a lawsuit against a government entity.

In India, in case of motor vehicle accidents there is no time limitation for bringing a claim for compensation.

Damages

Damages are categorized as either special or general. In torts, special damages are measurable costs which can be itemized such as medical expenses, lost earnings, and property damages whereas general damages include less measurable costs such as pain and suffering, loss of consortium, the effects of defamation, and emotional distress. Personal injury torts may result in claims for both special and general damages.

Aside from compensation for injuries, the injured person may get compensated for the lifetime effect of the injuries. An example, a keen cricketer suffers a wrist injury which prevents him from playing cricket during the cricket season. This is called loss of enjoyment of life and is compensable. Additionally, lost earning capacity (Future ability to learn) and future reasonably necessary medical expenses are recoverable.

In some cases, the injured might run his or her own businesses. The quantum assessment of the loss of profits (dividing into pre-trial and post-trial) requires forensic accounting expertise because the forensic accountant would consider various scenarios and adopt the best estimate based on the available objective data.[11]

For wrongful death cases in California, people qualify to claim damages if they are the following: (1) the deceased person's surviving spouse; (2) the deceased person's domestic partner; (3) the deceased person' s surviving children; or (3) if there is no surviving person in the deceased person's line of descent, then a wrongful death lawsuit may be brought by anyone "who would be entitled to the property of the decedent by intestate succession," which can include the deceased person's parents, or the deceased person's siblings, depending on who is living at the time of the deceased person's death. (California Code of Civil Procedure section 337.60). Otherwise a plaintiff will have to prove that financially dependency on the deceased person.

For automobile accidents in California, a plaintiff must show proof of financial responsibility (California Vehicle Code sections 16000-16078) and have a valid driver's license to claim economical and non-economical damages. Proving the minimum financial responsibility means that a person must be insured by the state's minimum coverage of insurance, which in some cases may be referred to "limited liability" type of insurance. If the person at fault cannot prove financial responsibility, a plaintiff may be unable to obtain damages as the person at fault may not be properly financially able to pay for those damages.

No-fault compensation fund

Some jurisdictions offer no fault compensation systems for personal injury cases, or types of personal injury cases, whereby an injured person can recover compensation from a fund or insurance program without regard to who is at fault for the person's injury. For example, in the United States, most injuries that occur while the injured person is working for an employer are compensated through a no-fault workers' compensation system. In New Zealand, the Accident Compensation Corporation provides no-fault compensation to all accident victims (including medical malpractice), and personal injury lawsuits are rare (except in cases of reckless conduct).[12] Proponents of this system say that it results in faster, fairer awards to victims. In practice, it allows people to engage in behavior they otherwise wouldn't out of fear of legal liability, such as putting out a trampoline for neighborhood kids to use.[13]

United States

Personal injury cases represent the most common type of lawsuits filed in United States federal district courts, representing 25.5 percent of cases filed in 2015.[14] Personal injury claims represent a considerably smaller percentage of cases filed in state courts. For example, in Illinois, tort claims represent approximately 7% of the civil docket.[15]

Insurance

In the United States, personal injury in the sense of "bodily injury" to others is often covered by liability insurance. Most businesses carry commercial general liability policies. Different states have different rules regarding auto insurance, but generally, a driver's liability insurance is available to compensate others whom that driver may inadvertently injure, and uninsured or underinsured motorist coverage is available to compensate the driver for injuries inflicted upon the driver by someone else. Therefore, an insurance company will provide a legal defense to the defendant and may settle with the plaintiff (victim).

Additional damages for mental injury without a physical injury are less clearly covered, as the insurance policy typically states that it covers only bodily injury. For example, in general liability as of 2001 a minority of courts included emotional distress within the definition bodily injury.[16][17] Where a mental injury arises from a physical injury—as with a traumatic brain injury caused by a car accident—auto insurance policies normally cover the injury.

In insurance, "personal injury," as typically defined, does not include mental injury that occurs as a result of defamation, false arrest or imprisonment, or malicious prosecution. For example, the Insurance Services Office standard general liability form has a section providing this coverage.[18] Some home insurance policies include personal injury coverage.[19]

Despite the general distinction between bodily injury and personal injury in insurance contracts, auto insurance known as personal injury protection (PIP) does cover medical expenses from bodily injury. This type of insurance is available in some states, but not others.

Taxation of personal injury settlements

In the United States, for federal taxes payable to the IRS, the money awarded in a personal injury settlement as compensation for pain and suffering, medical expenses and property damage is not ordinarily taxable. Exceptions may apply, for example, if a plaintiff took a tax deduction in a prior year for medical expenses that are recovered through a later judgment or settlement. [20]

Compensation for lost wages or lost business profits will typically be taxed.[20]

See also

Notes

  1. ↑ Smith, Turner T. (November 1983). "Environmental Damage Liability Insurance—A Primer". The Business Lawyer. 9 (1): 333–3Personal injury cases represent greatest amount54. JSTOR 40686553. ("Personal injury is defined to include 'bodily injury, mental anguish, shock, sickness, disease or disability.' Property damage means 'physical injury to or physical destruction of tangible property....'")
  2. ↑ Diamond, John L.; Levine, Lawrence C.; Bernstein, Anita (2000). Understanding Torts. LexisNexis. pp. 3–4. ISBN 0769872344. Retrieved 3 December 2017.
  3. ↑ Larson, Aaron (8 November 2014). "Personal Injury Law". ExpertLaw.com. Retrieved 3 December 2017.
  4. ↑ King, Joseph H. (2004). "Pain and Suffering, Noneconomic Damages, and the Goals of Tort Law". Southern Methodist University Law Review. 57: 163. Retrieved 3 December 2017.
  5. ↑ "Personal Injury Claims". American Bar Association. Retrieved 3 December 2017.
  6. ↑ "Negligence". Wex. Cornell Law School. Retrieved 3 December 2017.
  7. ↑ "Starting a Lawsuit: Initial Court Papers - FindLaw". Findlaw. Retrieved 2017-06-23.
  8. ↑ Gold, Stephen (2004-04-27). "Five years on are Woolfs reforms working". The Times. London.
  9. ↑ s.33 Limitation Act 1980
  10. ↑ Beaman, Richard (2010-10-14). "The Three Year Limitation of Claim". Douglas Wemyss Solicitors. Leicester. Archived from the original on 2010-10-22.
  11. ↑ Kwok, Benny K. B. (2008). Forensic Accountancy (2nd edition). LexisNexis. ISBN 978-962-8972-76-0.
  12. ↑ "No-Fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety". The Commonwealth Fund. Retrieved 2 July 2017.
  13. ↑ "Comparing Family Life In New Zealand And The U.S." NPR. Weekend Edition Sunday. 19 March 2017. Retrieved 2 July 2017.
  14. ↑ "U.S. District Courts - Judicial Business 2015". United States Courts. Administrative Office of the U.S. Courts. Retrieved 3 December 2017.
  15. ↑ "Court Statistics Reveal Civil Lawsuit Filings are Dropping". Illinois Trial Lawyers Association. Retrieved 3 December 2017.
  16. ↑ Adler MB. (2001). Insurance Coverage 101 for Policyholders: The Basics of General Liability Policies. Coverage No. 4, 22.
  17. ↑ Farrell-Kolb K. (1997). General Liability for Claims of Emotional Distress: An Insurance Nightmare. Drake Law Review.
  18. ↑ Stanovich CF. (2007) No Harm, No Coverage—Personal and Advertising Injury Liability Coverage in the CGL (Part 1).
  19. ↑ Evaluating Homeowners and Renters Insurance Policies. Citizen Media Law Project.
  20. 1 2 "Settlements — Taxability" (PDF). IRS. Internal Revenue Service. Retrieved 3 December 2017.
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