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 alleging that the plaintiff's injury has been caused by the negligence of another, but also arises in defamation torts. Damages include bodily injury, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED).

Types

A Chevrolet Malibu involved in a rollover crash

The most common types of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, on a cruise ship, product defect accidents (product liability) and holiday accidents. The term personal injury also incorporates medical and dental accidents (which lead to numerous medical negligence claims every year) 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.

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. In the United States, this system is complex and controversial, with critics calling for various forms of tort reform. 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. Typically, a Plaintiff attorney charges 1/3 of the proceeds recovered if a case is settled out of court or 40 percent if the matter proceeds to trial. These sums are negotiable before hiring an attorney. Legal aid from the government may not be available; for example it was largely abolished in England in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful.[2]

Damages

Main article: 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 result in both special and general damages.

Four things must be proven in order to hold a party or parties legally liable for injuries so damages can be awarded:

  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.

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.[3]

Time limitation

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.[4] 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.[5]

In the United States, each state has different statutes of limitations - laws that determine how much time you have to file a claim. Different types of injuries may have different statutes of limitations as well. 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 India, in case of motor vehicle accidents there is no time limitation for bringing a claim for compensation.

Lawsuit and payment

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.

Insurance

Main article: Liability insurance

In insurance in the United States, personal injury in the sense of "bodily injury" to others is often covered by liability insurance such as auto insurance. 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.[6][7]

In insurance "personal injury" as typically defined does not include bodily injury damages and instead refers to mental injury damages, particularly 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.[8] Similarly, some home insurance policies include personal injury coverage.[9]

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.

Taxation of personal injury settlements

In the United States, typically, the money awarded in a personal injury settlement is not taxable. The official statement from the IRS regarding the tax-ability of personal injury settlements is as follows: "If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income." However, there are exceptions. If a portion of the settlement draft is specifically allocated to wage loss, the settlement then becomes taxable. Similarly, if you itemize deductions, and you claimed medical expenses in previous years as an itemized deduction that were later reimbursed by the settlement, then that amount would be taxable.[10]

See also

Notes

  1. ↑ "Nolo's Free Dictionary of Law Terms and Legal Definitions". Nolo.com. 2009-09-18. Retrieved 2010-03-31.
  2. ↑ Gold, Stephen (2004-04-27). "Five years on are Woolfs reforms working". The Times. London.
  3. ↑ Kwok, Benny K. B. (2008). Forensic Accountancy (2nd edition). LexisNexis. ISBN 978-962-8972-76-0.
  4. ↑ s.33 Limitation Act 1980
  5. ↑ Beaman, Richard (2010-10-14). "The Three Year Limitation of Claim". Douglas Wemyss Solicitors. Leicester.
  6. ↑ Adler MB. (2001). Insurance Coverage 101 for Policyholders: The Basics of General Liability Policies. Coverage No. 4, 22.
  7. ↑ Farrell-Kolb K. (1997). General Liability for Claims of Emotional Distress: An Insurance Nightmare. Drake Law Review.
  8. ↑ Stanovich CF. (2007) No Harm, No Coverage—Personal and Advertising Injury Liability Coverage in the CGL (Part 1).
  9. ↑ Evaluating Homeowners and Renters Insurance Policies. Citizen Media Law Project.
  10. ↑ Settlements - Taxability, Inland Revenue Service
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