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Personal injury is a legal term for an
injury An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, o ...
to the body, mind or emotions, as opposed to an injury to property. In
common law jurisdictions In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
the term is most commonly used to refer to a type of
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
lawsuit in which the person bringing the suit (the "claimant" in English Law or "plaintiff" in American jurisdictions) has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of
strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...
. Different jurisdictions describe the
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
(or, the things for which the injured person may be compensated) in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.


History

Historically, personal injury lawsuits in tort for monetary damages were virtually nonexistent before the
Industrial Revolution The Industrial Revolution was the transition to new manufacturing processes in Great Britain, continental Europe, and the United States, that occurred during the period from around 1760 to about 1820–1840. This transition included going f ...
of the 19th century. In agrarian, pre-industrial societies where most people did not travel far from home during their lifetimes, accidental bodily injuries inflicted by one stranger upon another were quite rare. When a grievous accident did occur, the culprit was usually a relative or close friend, and part of the same small local community. Most persons were judgment proof before the rise of the
middle class The middle class refers to a class of people in the middle of a social hierarchy, often defined by occupation, income, education, or social status. The term has historically been associated with modernity, capitalism and political debate. C ...
and the invention of modern
liability insurance Liability insurance (also called third-party insurance) is a part of the general insurance system of risk financing to protect the purchaser (the "insured") from the risks of liabilities imposed by lawsuits and similar claims and protects the in ...
. At common law, a victim of a personal injury and others with a direct interest in the outcome of an action (e.g., the victim's
spouse A spouse is a significant other in a marriage. In certain contexts, it can also apply to a civil union or common-law marriage. Although a spouse is a form of significant other, the latter term also includes non-marital partners who play a soci ...
) were automatically disqualified from testifying about the injury or its consequences (because the victim's self-interest in recovery was seen as inevitably resulting in an unacceptably high risk of
perjury Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
). Finally, pre-industrial injuries lacked the sheer magnitude of force of modern personal injuries, because they were normally inflicted by humans or animals, not powerful machines. Another obstacle was that if an injury was severe enough to kill the victim, the common law followed the maxim '' actio personalis moritur cum persona''. This literally meant that the
cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...
died with the victim. It was not until the 19th century that legislatures throughout the common law world began to remedy this grave injustice by enacting statutes (e.g., the Fatal Accidents Act 1846) allowing for post-death
wrongful death claim Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, ...
s. Similarly, from the 1840s to the 1890s, legislatures throughout the common law world began to also enact statutes overturning the traditional witness disqualification rule (after which victims could directly testify to how they had been injured and had subsequently suffered). It should be obvious at this point that in common law jurisdictions before the 1850s, an injury had to fit into a very small category in order to serve as the basis of a legal action worth pursuing to a final verdict: the injury was serious enough to justify legal action, but not so severe as to kill the victim; the injury, its cause, and its consequences had all been witnessed by entirely disinterested third parties; the defendant was a stranger to the plaintiff, but one with recoverable money or assets within the boundaries of the jurisdiction; and the plaintiff was able to find competent counsel willing and able to pursue such a rare kind of legal action. Starting in the middle of the 19th century, personal injury lawsuits were filed after accidents on the new railroads. Edward Watkin of the South Eastern Railway (England) complained in 1881 that


Types

Common types of personal injury claims include road traffic accidents,
work accidents A work accident, workplace accident, occupational accident, or accident at work is a "discrete occurrence in the course of work" leading to physical or mental occupational injury. According to the International Labour Organization (ILO), more tha ...
, tripping accidents, assault claims, and product defect accidents (
product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has b ...
). The term ''personal injury'' also incorporates injuries arising from medical and dental care, that which may lead to medical negligence claims). Other causes of personal injury claims, include conditions that are often classified as
occupational disease An occupational disease is any chronic ailment that occurs as a result of work or occupational activity. It is an aspect of occupational safety and health. An occupational disease is typically identified when it is shown that it is more prevalen ...
s. Personal injury cases may also include
toxic tort A toxic tort claim is a specific type of personal injury lawsuit in which the plaintiff claims that exposure to a chemical or dangerous substance caused the plaintiff's injury or disease. Place of exposure People may be exposed to toxic chemi ...
s, in which a contaminant transmitted by air or water causes illness, injury, or death. Other
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
claims may be pursued in conjunction with personal injury claims. The most common personal injury claim involves injury from a motor vehicle accident.


Claims and payments

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 Settlement may refer to: * Human settlement, a community where people live *Settlement (structural), the distortion or disruption of parts of a building *Closing (real estate), the final step in executing a real estate transaction *Settlement (fin ...
or a
judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotle s ...
. Although personal injury cases may result from an intentional act, such as
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
, or from reckless conduct, most personal injury claims are based on a theory of
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...
. To hold a party or parties legally liable for injuries so damages based upon negligence, four elements must be proved: # Party A had a duty to act reasonably according to the circumstances. # Party A breached the duty. # Party A's breach of the duty caused party B to be harmed. # Party B suffered monetary damages due to the harm suffered when party A 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 severed limbs or brain damage) that cause intense physical pain and suffering receive the highest injury settlements.


Lawsuits

As occurs in most civil cases, personal injury cases begin by filing with a court a document called a "complaint." Typically, a complaint in a personal injury case identifies the parties to the
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
, specifies what the defendant did wrong, alleges that the wrongdoing caused the plaintiff's injury, and specifies what kind of compensation the plaintiff is seeking. The complaint generally sets out the facts that the plaintiff will attempt to prove, and the defendant may attempt to disprove, throughout the litigation. In most countries, payments will be through a
settlement Settlement may refer to: * Human settlement, a community where people live *Settlement (structural), the distortion or disruption of parts of a building *Closing (real estate), the final step in executing a real estate transaction *Settlement (fin ...
agreement or a
judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotle s ...
as a result of a
trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribun ...
. Settlements can be either lump-sum or as a
structured settlement A structured settlement is a negotiated financial or insurance arrangement through which a claimant agrees to resolve a personal injury tort claim by receiving part or all of a settlement in the form of periodic payments on an agreed schedule, ...
in which the payments are made over a period of time. In some countries, those prevailing in trial may recover their attorneys' fees from the opposing party. In the United States, a party may be able to seek sanctions when the other party acts without legal basis or justifiable cause. For example, if the opposing party continues to object to the complaint without significant reason or justifiable cause, a party may apply a motion for punitive damages or that the opposing party is harassing and or speculating without merit or reason. The American Bar Association’s Model Rules of Professional Conduct proposes that lawyers should be prohibited from bringing – or defending – a lawsuit “unless there is a basis in law and fact for doing so that is not frivolous.”


Legal fees

The manner in which attorneys are compensated for representing injured plaintiffs varies by jurisdiction. For example, in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, 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. Depending upon state regulations, a plaintiff's attorney may charge 1/3 of the proceeds recovered if a case is settled out of court or 40 percent if the matter must be litigated. Attorney fees are negotiable before hiring an attorney. Although some jurisdictions have historically helped people obtain affordable legal representation, those systems have typically been narrowed and may exclude personal injury cases. For example, in England
legal aid Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to c ...
from the government was largely abolished in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful.


Time limitation

Many jurisdictions have
statutes of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...
- laws that determine how much time an individual has to file a claim. If a lawsuit is not filed in a timely manner the statute of limitations provides a defense that can allow the defendant to have the case dismissed with no compensation to the plaintiff. In
England England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe ...
and
Wales Wales ( cy, Cymru ) is a country that is part of the United Kingdom. It is bordered by England to the east, the Irish Sea to the north and west, the Celtic Sea to the south west and the Bristol Channel to the south. It had a population in ...
, 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. 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. In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, each state has different statutes of limitation, and within a state different types of injuries may have different statutes of limitation.
Rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
claims, for example, often have a much longer statute of limitation than other injuries. In some states such as
Colorado Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of the ...
, the statute of limitations starts to run once the injury is discovered. For example, for an individual who begins experiencing severe back problems six months after a car accident, the statute would start when the back problems began. In India, in case of motor vehicle accidents there is no time limitation for bringing a claim for compensation.


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 Pain and suffering is the legal term for the physical and emotional stress caused from an injury (see also pain and suffering). Some damages that might come under this category would be: aches, temporary and permanent limitations on activity, p ...
, loss of consortium, the effects of
defamation Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
, and
emotional distress In medicine, distress is an aversive state in which a person is unable to completely adapt to stressors and their resulting stress and shows maladaptive behaviors. It can be evident in the presence of various phenomena, such as inappropriate so ...
. Personal injury torts may result in claims for both special and general damages. 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.


No-fault compensation fund

Some jurisdictions offer no-fault compensation systems for personal injury cases, or types of personal injury cases, whereby an injured person can recover compensation from a fund or insurance program without regard to who is at fault for the person's injury. For example, in the United States, most injuries that occur while the injured person is working for an employer are compensated through a no-fault workers' compensation system. In New Zealand, the Accident Compensation Corporation provides no-fault compensation to all accident victims (including medical malpractice), and personal injury lawsuits are rare (except in cases of reckless conduct). Proponents of this system say that it results in faster, fairer awards to victims. In practice, it can lead to
moral hazard In economics, a moral hazard is a situation where an economic actor has an incentive to increase its exposure to risk because it does not bear the full costs of that risk. For example, when a corporation is insured, it may take on higher risk ...
, as it encourages people to engage in behavior they would otherwise avoid for fear of legal liability, such as putting out a trampoline for neighborhood children to use.


United States

Personal injury cases represent the most common type of lawsuits filed in United States federal district courts, representing 25.5 percent of cases filed in 2015. Personal injury claims represent a considerably smaller percentage of cases filed in state courts. For example, in Illinois, tort claims represent approximately 7% of the civil docket.


Insurance

In the United States, personal injury in the sense of "bodily injury" to others is often covered by
liability insurance Liability insurance (also called third-party insurance) is a part of the general insurance system of risk financing to protect the purchaser (the "insured") from the risks of liabilities imposed by lawsuits and similar claims and protects the in ...
. Most businesses carry
commercial general liability Commercial may refer to: * a dose of advertising conveyed through media (such as - for example - radio or television) ** Radio advertisement ** Television advertisement * (adjective for:) commerce, a system of voluntary exchange of products and ...
policies. Different states have different rules regarding auto insurance, but generally, a driver's liability insurance is available to compensate others whom that driver may inadvertently injure, and uninsured or underinsured motorist coverage is available to compensate the driver for injuries inflicted upon the driver by someone else. 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 In insurance, the insurance policy is a contract (generally a standard form contract) between the insurer and the policyholder, which determines the claims which the insurer is legally required to pay. In exchange for an initial payment, known a ...
typically states that it covers only bodily injury. For example, for the purposes of general liability, a 2001 survey found that a minority of courts included
emotional distress In medicine, distress is an aversive state in which a person is unable to completely adapt to stressors and their resulting stress and shows maladaptive behaviors. It can be evident in the presence of various phenomena, such as inappropriate so ...
within the definition of bodily injury. Where a mental injury arises from a physical injury—as with a traumatic brain injury caused by a car accident—auto insurance policies normally cover the injury. In insurance, "personal injury," as typically defined, does not include mental injury that occurs 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.Stanovich CF. (2007
No Harm, No Coverage—Personal and Advertising Injury Liability Coverage in the CGL (Part 1)
Some
home insurance Home insurance, also commonly called homeowner's insurance (often abbreviated in the US real estate industry as HOI), is a type of property insurance that covers a private residence. It is an insurance policy that combines various personal insu ...
policies include personal injury coverage. Despite the general distinction between bodily injury and personal injury in insurance contracts, auto insurance known as
personal injury protection Personal injury protection (PIP) is an extension of car insurance available in some U.S. states that covers medical expenses and, in some cases, lost wages and other damages. PIP is sometimes referred to as "no-fault" coverage, because the statutes ...
(PIP) does cover medical expenses from bodily injury. This type of insurance is available in some states, but not others. In the U.S., twelve states and the territory of Puerto Rico have no-fault auto insurance systems, which provide financial support to those injured in car accidents. Although the benefits will vary depending on the state, no-fault benefits will generally: (1) pay for an injured person’s car crash-related medical bills and lost wages; (2) be paid by the injured person’s own insurance company; and (3) be paid regardless of whether the injured person was at-fault for the crash. In Michigan, the Michigan Catastrophic Claims Association has historically helped catastrophically injured crash victims.


Taxation

In the United States, for federal taxes payable to the
IRS The Internal Revenue Service (IRS) is the revenue service for the United States federal government, which is responsible for collecting U.S. federal taxes and administering the Internal Revenue Code, the main body of the federal statutory tax ...
, the money awarded in a personal injury settlement as compensation for pain and suffering, medical expenses and property damage is not ordinarily taxable. Exceptions may apply, for example, if a plaintiff took a tax deduction in a prior year for medical expenses that are recovered through a later judgment or settlement. Compensation for lost wages or lost business profits will typically be taxed.


State laws

In California, attorneys typically receive contingency fees of 35% of the total recovery obtained before a lawsuit is filed, and 45% if the recovery occurs after filing the complaint. In some types of cases, the judge handling the case may determine the total percentage of the settlement or the payment to the attorneys. Treating doctors or health care profession and/or insurance companies, Med-Cal, or other program paying for medical treatment may assert a lien against any recovery for what was paid to treat the plaintiff. These liens are paid once a settlement is reached or a judgment is received. In
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
, according to California Code of Civil Procedure Section 335, the statute of limitations in California is 2 years from the date of loss. A date of loss refers to the date in which the accident has happened. Minors in California who are filing a claim against an entity or person has until 2 years after their 18th birthdays to satisfy the statute of limitations. For governmental claims, both minors and adults have 6 months to file a claim with its corresponding jurisdiction according to Government Code section 911.2. After filing a claim to satisfy Government Code Section 911.2, the claimant has an additional 6 months to file a lawsuit against a government entity unless the entity accepts the claim. For wrongful death cases in
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
, people qualify to claim damages if they are the following: (1) the deceased person's surviving spouse; (2) the deceased person's domestic partner; (3) the deceased person's surviving children; or (3) if there is no surviving person in the deceased person's line of descent, then a wrongful death lawsuit may be brought by anyone "who would be entitled to the property of the decedent by intestate succession," which can include the deceased person's parents, or the deceased person's siblings, depending on who is living at the time of the deceased person's death. (California Code of Civil Procedure section 337.60). Otherwise a plaintiff will have to prove that financially dependency on the deceased person. For automobile accidents in California, a plaintiff must show proof of financial responsibility (California Vehicle Code sections 16000-16078) to claim economical and non-economical damages. Proving the minimum financial responsibility means that a person must be insured by the state's minimum coverage of insurance, which in some cases may be referred to "limited liability" type of insurance. If the plaintiff cannot prove financial responsibility, the plaintiff may be unable to obtain non-economic damages unless his claim falls into certain exceptions, including if the defendant is convicted of driving under the influence, the accident did not arise from the use of an automobile, or his claim is for product liability.


United Kingdom

Personal injury claims are awarded via civil action for torts like in the United States. The book '' Guidelines for the Assessment of General Damages in Personal Injury Cases'', produced by the
Judicial College The Judicial College, formerly the Judicial Studies Board (JSB), established in 1979, is the organisation responsible for training judges in county, the Crown, and higher courts in England and Wales and tribunals judges in England & Wales, Scotla ...
, is influential in determining how much money is awarded by courts."Judges are not obliged to follow the Guidelines. Inevitably, however, they are extremely influential, in particular with conditions such as mesothelioma about which few judges have any specialist knowledge"


See also

*
Association of Personal Injury Lawyers The Association of Personal Injury Lawyers (APIL) is a United Kingdom not-for-profit organisation comprising about 3,300 personal injury Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to prop ...
*
Big Apple Pothole and Sidewalk Protection Committee The Big Apple Pothole and Sidewalk Protection Committee is an organization created by the New York State Trial Lawyers Association to map the sidewalks of New York City for defects capable of causing personal injury.John Eligon. 2009, January 3.Rul ...
*
Pain and suffering Pain and suffering is the legal term for the physical and emotional stress caused from an injury (see also pain and suffering). Some damages that might come under this category would be: aches, temporary and permanent limitations on activity, p ...


Notes

{{DEFAULTSORT:Personal Injury Civil law (common law) Tort law