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Personal Injury Damages: The Elements of Compensation

INTRODUCTION

Plaintiffs bring lawsuits for a variety of reasons, but when the cause of action is in tort, the reason is almost always to obtain monetary compensation for the injury.

We might well pause for a moment to ask whether this makes sense. If Krutch runs down Gray, breaking Gray's leg, why should the legal system respond by ordering Krutch to pay money to Gray? Aren't there other responses that would make more sense? Perhaps the court should order Krutch to perform services for Gray, take a driving course, or publicly acknowledge responsibility. Or maybe the court should provide social services to Gray, or retraining, or visits from neighbors, or who knows what.

Such responses to personal injury might be more creative than the impersonal transfer of dollars from the defendant (or his insurer) to the plaintiff. But the fact is that the usual balm the law provides to personal injury plaintiffs is money. Such payments are called “compensatory damages,” and it is sometimes said that they are intended to “repair[] plaintiff's injury or...mak[e] him whole as nearly as that may be done by an award of money.” Harper, James & Gray §25.1 at 493.

Clearly this goal is an idle dream in many cases: No amount of money could possibly compensate an active, healthy adult rendered paraplegic in an auto accident, a child disfigured by severe burns, or a patient brain-damaged by excessive anesthesia. These plaintiffs can never be put back in their pre-injury position, and none of us would incur their injuries for any sum. However, while money damages may seem an inadequate response to such injuries, they do help. A paraplegic with a two-million-dollar trust fund is a lot better off than he would be with no money and impaired earning power, and a remedy that provides the trust fund is, if imperfect, still a good deal better than nothing. And so tort law endeavors to provide the injured plaintiff a sum of money adequate to compensate him, though certainly not to restore him to his pre-injury position.[1]

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