How Are Damages / Awards Determined In Injury And Wrongful Death Cases? Part Two

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Last month, we shared an article about the process of determining and awarding compensation in personal injury cases. Here we continue that article, sharing the factors and facts that the court and the attorneys involved will look at closely.

  1. The age of the claimant

The plaintiff’s age is of high importance and relevance if dealing with an accident claim regarding fatal or permanent injuries. The younger the injured party with a permanent injury is, the longer that individual has to live with the PSLA (pain, suffering, loss of amenity). As a result, the compensation payment will be greater in cases where the injuries were serious or fatal and the deceased person is considered young. When a younger person is killed under wrongful death, the greater the amount awarded to the dependents who survived the loss.

  1. The nature and extent of the injuries sustained.

Lawyers will consider “like for like” injuries with the case at hand and similar cases decided upon by the courts previously. These cases are known as precedents. Decisions made in the higher courts generally bind the lower courts to their determinations. Therefore, judgments from the Court of Appeals have greater authority than the lower courts. Mostly, it is a matter of informed opinion when determining how much an injury claim is worth, and the final outcome is greatly influenced by the skill of the lawyer charged with persuading the judge/jury, and ultimately the opinions of the judge handling the case. Good injury attorneys are careful when looking at older cases when quantifying a claim because they need to ensure that the award is brought up to date by looking at current monetary value versus the time period of the precedent case.

  1. Gender of the client

More often than not, damages for personal injury claims made by men and women are the same. However, there can be a difference weighted in favor of females when the injury results in permanent scarring to the skin. Especially, when the scarring is clearly visible (face, legs, and arms). Each case will be decided on its own particular facts. For example, a male model who sustains scarring to his face may obtain just as much as a female.

  1. Personal attributes and fortitude of the client

We are all different, which is a point not overlooked by the courts during the compensation decision-making process. The courts will assess each claim on its own particular facts and therefore if one claimant recovers more quickly than another, the damages will be reflected accordingly. It is important to note here that “psychological injuries” may also follow from an accident, which may increase the damages awarded. An example would be someone developing a fear of driving, or having panic attacks upon seeing or hearing a certain piece of equipment that was involved in the initial accident.

When a personal injury claim is settled either in court or out of court, the most common way the compensation payment is made is a lump sum award in full and final settlement of the claim. Once an award is accepted, there can be no further compensation at a later time (unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos-related injuries).

  1. Quantifying losses in practice – expert evidence

It may be useful for lawyers representing a plaintiff to hire forensic accountants or economists to provide evidence about the value of a loss. In such cases, they may be asked to provide verbal testimony of their opinion of the evidence, serving as an expert witness.

Most cases don’t end up in the trial. About 95% of personal injury cases that are filed in American courts are settled prior to trial. And, there is no minimum or maximum amount to be awarded.

Every case addresses three primary issues: (1) Liability – Was someone negligent? (2) Damages – What amount will fairly and adequately compensate the injured? (3) Source of a collection – Is there insurance or another asset (s) which can be used to recover the cost of damages awarded?

A good lawyer begins with one goal in mind – Obtain for clients what a reasonable jury would award as fair and adequate compensation. Injury attorneys work to fully explain and justify their client’s case

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