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Personal Injury Damages: The Elements of Compensation


Personal Injury Damages: The Elements of Compensation


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]


Perhaps the most fundamental point to grasp about tort damages is that the plaintiff must seek compensation for all his losses from the tort in a single trial. That is, he must prove both past damages and any future losses he is likely to experience from the injury-such as future medical expenses, lost wages, or medical complications-at the time of trial. The rationale for the rule is not hard to discern. Without it, cases would have to be reopened every time the plaintiff incurred further losses due to an injury, to allow recovery for those additional losses. There is simply no way the judicial system could entertain such repeated claims; it is hard enough to provide even a single hearing for the numbers of cases that confront the courts today.

[1] [ft] Two other types of damages, nominal damages and punitive damages, are not addressed in this chapter. Nominal damages may sometimes be granted if the plaintiff proves the elements of a tort but has suffered no actual damages. Punitive damages are sometimes awarded in tort cases to punish the defendant for particularly egregious conduct, and to deter such conduct in the future. Punitive damages may be awarded in addition to compensatory damages.


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