Damages in personal injury claims
Saturday, December 06, 2008
If you are injured in an accident you are not automatically entitled to damages.
Damages are awarded if you are able to prove negligence. As the person claiming damages you will have to prove every element of the claim.
What do I have to prove?
To prove negligence you must be able to show:
- The person who caused your injuries owed you a duty of care. For example, a driver has a duty of care to operate their vehicle in such a way that no one else will be injured by their driving.
- The person who caused your injuries acted in such a way that they breached their duty? In a car accident this could be proven if the driver failed to follow the motor vehicle laws.
- Your accident was caused by their breach of duty.
- You suffered a loss or damages as a result of their breach. A loss can be financial, physical and emotional.
What can I claim?
Damages is split into two different categories known as general damages and special damages.
General damages takes into account the pain and suffering you have sustained as a result of your accident. Your doctor or treating specialist will provide this evidence in support of your claim. Your lawyer will write to your doctor or specialist and request a report and may also request your medical records.
General damages also include compensation for any lost earnings and if your injury is very serious and you are prevented from returning to work then you may be awarded an amount for loss of future earning capacity. There are two basic requirements for recovering lost wages. First, the lost wages must be actual and certain. The wages cannot be speculative. Second, you must prove that the injury prevented you from being able to work. To recover future lost earnings, you must prove that you are permanently disabled and that your disability will reduce your future earning capacity. A medical report from your treating specialist will be required to prove loss of future earning capacity.
Special damages are intended to reimburse you for any expenses you have incurred as a result of the accident. For example the cost of travelling to and from hospital, the cost of medication, nursing care, rehabilitation costs or any aids necessary such as a wheelchair. You will also be entitled to claim compensation for modifications to your house or car.
Time limits
You have a limited amount of time to file a personal injury claim? This period of time is known as the limitation date. If you do not commence proceedings before the limitation date, you may forfeit your right to claim damages.
It is recommended that you seek legal advice shortly after you are injured. You will need to gather evidence and present this to the other person’s insurer. Very often people wait too long before they seek legal advice and vital evidence is lost. If you seek legal advice early and your lawyer believes your claim for compensation has merit he or she will assist you to preserve the evidence.