Understanding Damages in Personal Injury Cases

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Explore:  Bodily Injury Damages

Even in cases where fault and liability are clear, the amount of damages is still a frequent point of contention. Damages are not, in most cases, calculated based on the egregiousness of the negligent conduct that led to your injury. They are based on the seriousness of your injury. Therefore, even if the at-fault driver only made a small mistake, that person is still liable for the full extent of the damage the mistake caused. 

When a case goes to trial, the damages that the jury awards must be defined, allocated and based on the evidence that was presented to them. The jury does not simply choose a number, but instead must assign damages across several categories: 

  • Special damages — These are damages that can be determined with some mathematical certainty. They include out-of-pocket medical expenses and lost wages. They can include what you have already lost and what you are reasonably likely to lose in the future. In wrongful death cases, they can also include funeral expenses and loss of contribution. 
  • General damages — General damages cannot be determined with any mathematical certitude and are left to the discretion of the jury. They include damages for pain and suffering, emotional distress, loss of consortium, and loss of society and companionship. 
  • Exemplary damages — Also called punitive damages, these types of damages are only available in cases where the defendant’s conduct was malicious, oppressive or fraudulent. They are not linked to the severity of the injury, but are instead designed to punish the defendant for the conduct.  Drunk driver cases are an example.  

While settlement amounts are usually not explicitly broken out in this manner, you can be sure that attorneys on both sides made these calculations during their settlement negotiations.