In Anglo-American jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit, or "plaintiff," 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. Different jurisdictions describe the damages (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.
Common types of personal injury claims include road traffic accidents, work accidents, tripping accidents, assault claims, and product defect accidents (product liability). The term personal injury also incorporates medical and dental accidents (which lead to medical negligence claims ) 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. Of these, the most common are automobile collisions. Personal injury cases may also include toxic torts, in which a contaminant transmitted by air or water causes illness, injury, or death (as in John Grisham's book, A Civil Action).
Claims and payments
Most personal injury claims are based on a theory of negligence. To hold a party or parties legally liable for injuries so damages based upon negligence, four elements must be proved:
- The party had a duty to act reasonably according to the circumstances.
- The party breached the duty.
- The party’s breach of the duty caused you to be harmed.
- 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.
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 must be litigated. 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.
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, 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 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. Personal injury cases represent greatest amount of lawsuits filed in United States federal district courts.
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. 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, 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.
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 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.
In the United States, personal injury in the sense of "bodily injury" to others is often covered by liability insurance. Most businesses carry commercial general liability 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 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. 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. Some home insurance 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 (PIP) does cover medical expenses from bodily injury. This type of insurance is available in some states, but not others.
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.
No-fault compensation fund
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 allows people to engage in behavior they otherwise wouldn't out of fear of legal liability, such as putting out a trampoline for neighborhood kids to use.
- Association of Personal Injury Lawyers
- Big Apple Pothole and Sidewalk Protection Committee
- Pain and suffering
- Smith, Turner T. (November 1983). "Environmental Damage Liability Insurance—A Primer". The Business Lawyer. 9 (1): 333–354. JSTOR 40686553. ("Personal injury is defined to include 'bodily injury, mental anguish, shock, sickness, disease or disability.' Property damage means 'physical injury to or physical destruction of tangible property....'")
- Gold, Stephen (2004-04-27). "Five years on are Woolfs reforms working". The Times. London.
- "Starting a Lawsuit: Initial Court Papers - FindLaw". Findlaw. Retrieved 2017-06-23.
- Erskine, Daniel H. (2007-07-12). "Reforming Federal Personal Injury Litigation by Incorporation of the Procedural Innovations of Scotland and Ireland: An Analysis and Proposal". SSRN .
- s.33 Limitation Act 1980
- Beaman, Richard (2010-10-14). "The Three Year Limitation of Claim". Douglas Wemyss Solicitors. Leicester.
- Kwok, Benny K. B. (2008). Forensic Accountancy (2nd edition). LexisNexis. ISBN 978-962-8972-76-0.
- Adler MB. (2001). Insurance Coverage 101 for Policyholders: The Basics of General Liability Policies. Coverage No. 4, 22.
- Farrell-Kolb K. (1997). General Liability for Claims of Emotional Distress: An Insurance Nightmare. Drake Law Review.
- Stanovich CF. (2007) No Harm, No Coverage—Personal and Advertising Injury Liability Coverage in the CGL (Part 1).
- Evaluating Homeowners and Renters Insurance Policies. Citizen Media Law Project.
- Settlements - Taxability, Inland Revenue Service
- "No-Fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety". The Commonwealth Fund. Retrieved 2 July 2017.
- "Comparing Family Life In New Zealand And The U.S.". NPR. Weekend Edition Sunday. 19 March 2017. Retrieved 2 July 2017.