Punitive Damages for Gross

Negligence in a Personal Injury

Case
Punitive damages are rare in injury cases, and are meant to
punish the defendant. Here's how they work.
The general public is probably familiar with the term punitive damages
due to high-profile jury verdicts. However, where a case proceeds to trial,
punitive damages are awarded in a very small percentage of injury cases.
In order to be awarded punitive damages, the defendants behavior must be
especially reprehensible and deserving of punishment.
In this article we'll explain what punitive damages are and when they might
be awarded in a personal injury case.

Damages in General
Damages are generally awarded to compensate an injured person for the
harm caused by the defendants actions. There are a number of
different types of compensation for an injury, including compensation for
physical pain and suffering, physical impairment, mental anguish, loss
wages, and medical expenses.
(See Alllaw's section on Personal Injury Damages for more information.)
For example, suppose Tom was injured in a car accident where the other
driver (Mark) was at fault. Tom can recover damages for permanent lost
mobility in his arm, for missing two months of work, and for his medical
expenses. Toms damages would be awarded based on the money he lost
as a result of Marks actions, and based on the negative impact the
accident has had on his life.

What are Punitive Damages?

Unlike regular damages, punitive damages are meant to punish and are not
directly tied to a tangible injury. They're not technically meant to
compensate the plaintiff for a specific loss, although the plaintiff is the one
who ends up receiving punitive damages from the defendant.
So, when will punitive damages be possible? In many states, a finding of
punitive damages requires intentional misconduct or gross negligence.
Other states require a defendant to act with recklessness, malice or deceit.
Punitive damages can be awarded in most cases, but are generally not
included in a breach of contract case.
Gross Negligence. Gross negligence is defined as conduct that is reckless
and constitutes a conscious disregard or indifference to others safety, life,
or rights. While ordinary negligence involves the violation of a general duty
to act with reasonable care, with gross negligence there is an added
element of recklessness. For example, a business may be liable for
negligence for failing to fix an old roof that later collapses and hurts
customers. However, let's say that a building inspector informed the
business that the roof must be fixed due to its dangerous condition, and the
business was ordered not to keep that part of the building open to the
public in the meantime. The business ignores this mandate, and the roof
collapses three months later, injuring customers. In that case, the business
may be liable for gross negligence. The business knew of the roofs
condition and consciously disregarded its customers safety.
It's important to note that, where there is gross negligence, governmental
entities and employees may lose their otherwise generally applicable
immunity from liability for personal injury claims.
Rationale for Punitive Damages. Punitive damages are meant to punish
and to deter similar wrongful or repugnant conduct.
In the car accident example above, suppose that Mark intentionally
sideswiped Toms car after he thought that Tom cut him off on the highway.
Mark engaged in intentional misconduct and purposely hit Toms car. Tom

should be awarded damages to compensate him for his injuries. Also, Tom
would have a good claim for punitive damages. Tom can argue that Mark
should be punished for intentionally causing his injuries and should be
punished to deter other people from acting in the same dangerous manner.
Limitations on Punitive Damages. Some states like Florida place
limitations or caps on punitive damages awards. Florida does not allow a
punitive damage award to exceed three times the amount of the award of
compensatory damages or $500,000, whichever is higher. Check the law in
your state or talk to an attorney to find out whether such caps are in place
where you live.
Sanctions for Lack of Reasonable Basis. There must be a reasonable
basis for an injured person to seek punitive damages in a personal injury
lawsuit. Where there is limited or no evidence of intentional misconduct,
gross negligence, or deceit, a court can levy monetary sanctions on the
injured person and his or her attorney for seeking punitive damages. By
requiring a reasonable basis for asking for these kinds of compensation,
courts are trying to discourage frivolous claims for punitive damages in
personal injury cases.

http://www.alllaw.com/articles/nolo/personal-injury/punitive-damages-grossnegligence.html

Elements of Actual Damages in Negligence

Cases.
Posted on Oct 9, 2010 by attorney Dan Denton

Filed under: Lawsuits and disputes

When one person is injured by the negligent acts of another, the injured
person is entitled to be fully compensated for all injuries directly or
proximately resulting from any negligent acts or omissions by the
defendant.

In determining the amount of compensation for injuries suffered by the

plaintiff as a result of the defendant's negligence, the judge in a jury trial will
instruct the jury that it is proper for it to consider and award past, present,
and future damages for the following elements of damages, or that these
factors should be considered and included, when appropriate and
supported by the evidence, in the jurys award:

Loss of income;

Loss or impairment of earning capacity;

Out-of-pocket expenses;

Medical expenses, including physicians, hospital, medicines, physical

therapy expenses, rehabilitation expenses, and transportation
expenses connected with medical treatment;

Any future damages resulting from permanent injuries;

Disfigurement;

Loss of family services;

deprivation of normal life expectancy;

Alteration of lifestyle;

Psychological trauma;

Mental anguish;

Mental distress;

Apprehension;

Anxiety;

Emotional injury;

Psychological injury;

Depression;

Sexual dysfunction;

Pain and suffering;

Loss of enjoyment of life.

(Content adapted from Ralph King Anderson, Jr., South Carolina Requests
to Charge Civil, 13-3.)
Punitive Damages
In cases involving gross negligence, willful conduct or recklessness on the
part of the wrongdoer, the plaintiff may also seek punitive damages in
addition to actual damages. Punitive damages are imposed as punishment.
They are not intended to compensate, but are allowed in the interest of
society in the nature of punishment and as a warning and example to deter
the wrongdoer and others from committing like offenses in the future.
Moreover, they serve to vindicate a private right by requiring the wrongdoer
to pay money to the injured party. If punitive damages are sought, a jury
would receive a detailed explanation from the judge as to the what type of
circumstances would justify an award for punitive damages, as well as a list
of factors the jury must consider in determining whether punitive damages
should be awarded and in determining the amount of the award.

http://www.avvo.com/legal-guides/ugc/elements-of-actual-damages-innegligence-cases-1

Corporate manslaughter cases in 2014 to date

To date 2014 has seen two convictions and two acquittals under the Act, details of
which are set out below.

PS and JE Ward Ltd Not guilty

Tractor driver Grzegorz Krystian Pieton was electrocuted when the hydraulic lift
trailer he was towing hit an overhead power cable in Norfolk in July 2010. He
subsequently died.
Mr Pieton's employer, PS and JE Ward Ltd, was acquitted of the charge of corporate
manslaughter in April 2014. This was the first case of an organisation being
acquitted of such a charge. During the hearing it emerged that Mr Pieton had
attended a training course for forklift truck drivers that covered working under live
cables and it appeared that Mr Pieton was acting under his own initiative in carrying
out the task in hand rather than following instructions from a director, both factors
which are believed to have contributed to the outcome of the case.
The company was however convicted and fined under section 2(1) of the Health and
Safety at Work Act 1974 which states that "It shall be the duty of every employer to
ensure, so far as is reasonably practicable, the health, safety and welfare at work of
all his employees". The company was fined 50,000 and ordered to pay costs of
47,932.
Cavendish Masonry Limited Guilty
In May this year Cavendish Masonry was found guilty of corporate manslaughter
following the death of its employee David Evans during the refurbishment of a large
Oxfordshire estate in February 2010. A two-tonne limestone block fell off a concrete
lintel and crushed the 23 year old. The company had previously pleaded guilty to an
offence under section 2(1) of the Health and Safety at Work Act 1974.
Cavendish Masonry were found to have committed a gross breach of their duty of
care in their management and organisation of work on the estate, by failing to take
reasonable care in the planning and execution of those activities. As at the time of
writing, details of the sentence were not available.
MNS Mining Limited Not guilty
In June 2014 MNS Mining Limited was acquitted of four counts of corporate
manslaughter following the drowning of four individuals trapped in the Gleision drift
mine in 2011 when 650,000 gallons of water flooded the Swansea Valley mine
following a controlled explosion.
The prosecution claimed the mine manager, charged with four counts of gross
negligence manslaughter, had not carried out adequate inspections the day before
the incident, but evidence from an expert geologist confirmed that the water could
have gathered following the explosion. The mine manager was also acquitted.

Mobile Sweepers (Reading) Limited Guilty

This case involved the death of Malcolm Hinton, who was crushed to death whilst he
carried out repairs to a road sweeper. The company pleaded guilty to corporate
manslaughter and was fined 8,000 and ordered to pay 4,000 in costs. The
company was also ordered to publicise its wrongdoing. The company's sole director,
Mervyn Owens, was fined 183,000 after he admitted breaches of health and safety
legislation and was disqualified from being a company director for 5 years.
Practical steps
There are a number of practical steps which organisations can take to minimise the
risk of prosecution under the Act and under general health and safety legislation. In
particular, ensuring the following:

The formulation and regular review of a written health and safety policy.

Regular risk assessments to identify and manage the source of risks to

employees and members of the public.

Clearly defined roles and responsibilities for safety matters from the board
down.

Proper and adequate training.

The appointment of a member of the board with overall responsibility for

health and safety.

Regular reports to the board on matters concerning health and safety.

A process for monitoring the effectiveness of the health and safety system and
reviewing and amending it as appropriate.

http://www.fieldfisher.com/publications/2014/10/corporate-manslaughter-casesin-2014

What Are Some Possible Remedies in Tort Law?

A victim of a tort may have several possible remedies available under tort laws. There
are three basic types of remedies in tort law: Legal Remedies (damages),
Restitutionary Remedies, and Equitable Remedies. Each of these is discussed briefly
below:

Legal Remedies for Torts: Also known as damages, these are monetary
payments made by the defendant for the purpose of compensating the victim for their
injuries, losses, and pain/suffering. These are calculated according to the victims losses
rather than the tortfeasors gains. Punitive damages may be added in some types of tort
claims. Claimants that win a judgment in court are awarded pain and suffering damages.

Restitutionary Remedies: These are also meant to restore the plaintiff to a

position of wholeness, as close as possible to their state before the tort occurred. These
can include:

Restitutionary damages: These are similar to damages, except that they

are calculated based on the tortfeasors gain rather than the plaintiffs losses.

Replevin: Replevin allows the victim to recover personal property that they
may have lost due to the tort. For example, they may recover property that was stolen.
Replevin can be coupled with legal damages in some cases.

Ejectment: This is where the court ejects a person who is wrongfully

staying on real property owned by the plaintiff. This is common in instances of continuing
trespass.

Property Lien: If the defendant cannot afford to pay damages, a judge may
place a lien on their real property, sell the property, and forward the proceeds to the tort
victim.

Equitable Remedies: These are available where monetary damages will not
adequately restore the victim to wholeness. These can include:

Temporary Restraining Order: Victims of physical harm or harassment may

obtain a restraining order, which prevents the defendant from making contact with or
coming near to the plaintiff.

Temporary or Permanent Injunction: An injunction may either prohibit

unlawful activity by the defendant or it may order them to take affirmative steps.
Injunctions are common in trespassing and nuisance tort claims.
As in any lawsuit, the defendant may raise any available defenses to these types of
remedies.

Are All the Types of Tort Remedies Always Available for Every Tort?
No- a large part of any tort lawsuit is set side for deciding which type of remedy is
appropriate for the victim. Generally speaking, restitutionary and equitable remedies are
not available if legal damages will be claimed by the plaintiff. That is, if a monetary
payment will make the plaintiff whole, then there is no need for a court to issue
restitutionary or equitable remedies.
On the other hand, a judge may sometimes issue a combination of different remedies so
long as it is allowed by the laws of their jurisdiction. Or, they may combine remedies

while placing a cap or limit on one of the options. A common combination of remedies is
replevin coupled with legal damages.
For example in a conversion (theft) case, the judge may order replevin so that the
plaintiff can get their stolen property back. On top of this, the judge will typically order
the defendant to pay compensatory damages for the time that the plaintiff was not able
to use the property. This is especially common in cases where the stolen property is
equipment or machinery that the plaintiff uses to generate their income. The defendant
may then have to pay damages to compensate the plaintiff for lost wages.

Do I need a Lawyer for Tort Remedies?

Tort remedies should be chosen in a way that maximizes compensation for the victim. A
lawyer can help determine which type of remedy would best compensate a tort victim for
their losses or injuries. If you suffered losses from a tort, you may wish to hire a lawyer to
advise you on the various types of remedies available in your jurisdiction.
Consult a Lawyer - Present Your Case Now!
Last Modified: 07-17-2015 09:02 AM PDT

http://www.legalmatch.com/law-library/article/remedies-in-tort-law.html
NSW v Ibbett [2005] NSWCA 445 (13 December 2005)

STATE OF NEW SOUTH WALES v DOROTHY ISABEL IBBETT

This is an appeal from a decision of the District Court awarding aggravated and
exemplary damages against the State of NSW and in favour of Mrs Ibbett in
relation to the unlawful conduct of police officers.
At about 2am in the morning, the son of Mrs Ibbett was being pursued by two
police officers who suspected the son of having committed a traffic offence. The
son drove into Mrs Ibbetts garage and closed the garage door. One of the police
officers dived under the closing door and drew his revolver, pointed it in the
direction of the son and sought to arrest him. Mrs Ibbett heard the commotion and
entered the garage through a side door and told the officer to leave. The police
officer pointed the revolver at Mrs Ibbett briefly, demanding that the door be
opened for his fellow officer, before turning the gun back on the son. The police
officers arrested the son and conducted a strip search on him in the vicinity of Mrs
Ibbett.
Mrs Ibbett was successful in her action for trespass and assault. The trial judge
awarded $15,000 in general damages for the assault and $10,000 in exemplary
damages. In relation to the trespass, the trial judge awarded $20,000 in aggravated
and $20,000 in exemplary damages.

The primary issue for determination by the Court of Appeal was whether the award
of exemplary damages was precluded by the Civil Liability Act 2002 (NSW) and
whether, in any event, the award was justified in the circumstances.
DECISION:
(1) Appeal dismissed
(2) Allow the cross-appeal in part and vary the orders in the District Court so as to
(a) set aside orders 1 and 2
(b) in relation to the assault, add an additional amount of $10,000 on account
aggravated damages; and
(c) set aside the awards of exemplary damages and award in lieu thereof
(i) an amount of $25,000 with respect to the assault, and
(ii) an amount of $20,000 with respect to the trespass
(3) Direct that judgment be entered for the Plaintiff in the sum of $105,000
(4) Order the Appellant to pay the Respondents costs of the appeal and crossappeal

Mental anguish is an element of non-economic damages usually sought in personal

injury cases, medical malpractice and sometimes defamation cases. Generally, "mental
anguish" translates to certain types of suffering that may include distress, anxiety, fright,
depression, grief, or trauma. In many jurisdictions, plaintiffs may recover for mental
anguish; however, some states set compensation caps on non-economic damages.

Non-Economic Damages
Non-economic damages cover certain type of injuries that are not out-of-pocket losses,
including pain and suffering, disability, disfigurement, humiliation, mental anguish, loss of
consortium (companionship) as well as emotional distress. Because these damages are
often difficult to calculate and, juries may overcompensate and non-economic damages
can exceed actual economic damages. There is no standard formula to calculate these
non-economic damages; therefore they vary on a case by case basis and are referred to

as subjective damages because they differ according to a plaintiff's personal or

subjective experience.
In most cases, to recover non-economic damages, the plaintiff must show by a
preponderance of the evidence (which means "more likely than not") that they suffer
these injuries. If they cannot meet this burden of proof, they will not recover.

History of Damages for Mental Anguish

Damages for pain and suffering, including mental anguish, date back to Roman delicts,
which is equivalent to today's tort system. The basic Roman delicts were iniuria (injury to
person) and damnum iniuria datum (damage to property, including slaves). Under iniuria,
the wronged party had to show that the tortfeasor acted willfully and intentionally to
recover damages. The action was based on the plaintiff's "sense of outrage" and not on
actual economic loss. Therefore the plaintiff could be compensated for "pain or distress
of mind or body" in addition to any pecuniary damages. Whereas iniuria required a
showing of ill will, damnum iniuria datum only required a showing of negligence.
Eventually, Roman law evolved into only compensating for pain and suffering where the
tort was intentional and only providing pecuniary damages in the sole case of
negligence.
Under early English law compensation was afforded for slander and libel, and much
later, shame, because shame "was keenly felt."

Compensation Caps on Non-Economic Damages

Several states have sought to control increasing non-economic awards by
implementingcompensation caps for these types of damages. Most of these
compensation caps directly address medical malpractice issues where malpractice
premiums rose to a level to become disincentives for physicians to practice. The tort
reform of non-economic damages was intended to ameliorate this situation and protect
doctors and health facilities from exorbitant damages. However, advocates against caps
argue that caps unduly penalize those victims who may require a level of damages to
compensate for lifelong losses that can never be regained.
California is one state where the compensation cap on non-economic damages in
medical malpractice cases has been codified. Under California's Medical Injury
Compensation Reform Act of 1975 (MICRA), a patient's non-economic damages may
not exceed $250,000.

Consult an Attorney for Legal Advice

If you suffer mental anguish arising from a case of personal injury or medical
malpractice, you may recover non-economic damages. However, in some jurisdictions,
you may only be allowed to recover a specified maximum. Also, you will have to prove
your injuries by a preponderance of the evidence. Talk with an experienced attorney to
discuss the details of your case.

http://www.alllaw.com/articles/nolo/personal-injury/damages-compensationmental-aguish.html

Most people have heard the term "pain and suffering," but they may not necessarily know that it is a key component of many a personal
injury case. But what is pain and suffering from a legal perspective, and more importantly, how is it calculated for purposes of an injuryrelated insurance claim or lawsuit?

What is "Pain and Suffering"?

There are two types of pain and suffering: physical pain and suffering and mental pain and suffering.
Physical pain and suffering is the pain of the plaintiffs actual physical injuries. It includes not just the pain and discomfort that the
claimant has endured to date, but also the detrimental effects that he or she is likely suffer in the future as a result of the defendants
negligence.
Mental pain and suffering results from the claimant's being physically injured, but it is more a by-product of those bodily injuries.
Mental pain and suffering includes things like mental anguish, emotional distress, loss of enjoyment of life, fear, anger, humiliation,
anxiety, and shock. Mental pain and suffering is basically any kind of negative emotion that an accident victim suffers as a result of
having to endure the physical pain and trauma of the accident.
Very significant mental pain and suffering can include anger, depression, loss of appetite, lack of energy, sexual dysfunction, mood
swings, and/or sleep disturbances. Even more severe mental pain and suffering can even constitute post-traumatic stress disorder
(PTSD).
Mental pain and suffering, like physical pain and suffering, includes not just the effects that the victim has endured to date, but also the
mental pain and suffering that he/she will more than likely suffer into the future.

Examples of Pain and Suffering

Lets look at a couple of examples of how car accident victims might experience pain and suffering.
First, lets take a more severe case. Lets say that someone got into a car accident that caused multiple broken bones along with a
severe concussion. That is a pretty serious accident. As a result of these injuries, the claimant became depressed and angry, had
difficulty sleeping, and experienced significant loss of appetite. As a result of these problems, the claimant was referred to a psychologist

and a therapist. All of these problems are directly related to the accident, and the claimant is entitled to compensation for mental pain
and suffering due to the accident.
Mental pain and suffering can sometimes get so bad that it prevents the victim from returning to work even after the physical injuries
have healed. In this case, this victims depression due to the accident might linger long after his/her broken bones and concussion
healed. In such a case, the victim would still be able to claim any damages related to the mental pain and suffering, such as lost income.
Next, lets look at a less serious example of mental pain and suffering. Lets say that someone gets into a car accident and suffers back
strain. As a result of the back strain, the claimant is prevented from exercising for several weeks, and, during this time, is prevented from
running in a marathon that they had been training months for. As a result of missing the marathon, the claimant is angry, frustrated,
unhappy, and maybe even a little depressed. This claimant has no need for mental health assistance, but these effects, while
comparatively minor, still qualify as mental pain and suffering.

How to Calculate Pain And Suffering

Judges do not give juries much in the way of guidelines for determining the value of pain and suffering in a personal injury lawsuit.
There are no charts for juries to look at in order to figure out how much to award. In most states, judges simply instruct juries to use their
good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiffs pain
and suffering.
You may have heard about a "multiplier" being used in personal injury cases, where pain and suffering is calculated as being worth
some multiple of the injured persons total medical bills and lost earnings (which are called the claimant's special damages).
Often, the "multiplier" is considered to be somewhere between 1.5 and 4, meaning that the pain and suffering is 1.5 to 4 times the value
of the claimant's special damages. However, the "multiplier" concept is only a very rough estimate and does not apply in all personal
injury cases. It is most useful in minor injury cases, where the total damages are less than $50,000. But even in small cases, you should
be very careful about applying the "multiplier."
There are many other factors that affect the value of the pain and suffering component of a personal injury case. These include:

whether the plaintiff is or will be a good or bad witness

whether the plaintiff is likeable

whether the plaintiff is credible

whether the plaintiffs testimony regarding his or her injuries is consistent

whether the plaintiff is exaggerating his or her claims of pain and suffering

whether the plaintiffs physicians support the plaintiffs claims of pain and suffering

whether the jury thinks that the plaintiff lied about anything, even something relatively minor (as a general
rule, if a plaintiff lies, the plaintiff loses)

whether the plaintiffs diagnosis, injuries, and claims make common sense to the jury

whether the plaintiff has a criminal record

http://www.nolo.com/legal-encyclopedia/what-pain-suffering-personal-injurycase.html

Plaintiffs seek personal injury compensatory damages from defendants in tort actions because defendants have caused personal injury to the plaintiffs by
negligent or malicious action or omission. Personal injury can be mental, physical, psychological, emotional, or financial. Compensatory damages can be
sought for loss of earnings, medical expenses, and mental, physical pain, and suffering in personal injury actions. Compensation can also be sought for any
other damages that are a reasonable consequence of the negligent act or accident. The jury or judge exercises wide discretionary power in granting
compensatory damages in matters of personal injury.
Compensatory damages can be given in two forms. Special damages that compensate victims for monetary losses and general damages that compensate
victims for non-monetary losses.
Compensatory damages for personal injury include:

Cost of medical expenses and treatment: Damages for medical expenses include the costs of both past and future medical care and rehabilitation.

Future costs are calculated by estimating the patients medical needs for the rest of his/her life expectancy. Medical bills are considered substantial
evidence of the seriousness of an injury. When there is a chance that treatment will extend for a lifetime, the compensation amount will also substantially
increase.

Cost of living with a disability: An injury resulting in a disability that requires a victim to basically alter his/her lifestyle. Compensatory damages
can cover the costs associated with this change. When an injured person suffers severe disability which results in living in a wheel chair or only with the
help of a third person compensation under the head cost of living with disability can be increased.

Loss of wages and earning capacity: A victim can recover any wages lost while recovering from an injury. A victim can lose wages or days of work
because of treatment for the injury suffered[i]. The victim can also recover for any lost earning capacity suffered as a result of an injury. When the nature
of the injury is serious and results in a disability for a long period, the victim can claim compensation under loss of future earnings. If the victim was
employed at the time of the injury, his/her earnings prior to the injury or average income over recent years can be taken as evidence of the value of his/her
lost earnings[ii]. In a personal injury action, an injured person who is living can recover for damages for lost future earnings. However, if the victim has
died, damages for lost future earnings are recoverable only through a wrongful death action[iii].

Cost of replacement or repair of property: A victim can also recover the costs of property damage suffered in an accident. Property is typically
valued at its fair market value at the time of the injury. Compensation for any damage in property can be recovered along with compensation for physical
injuries. Property damage can be considered if the property has been completely destroyed so that it is of no further use and has no salvage value. The
measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of
the property prior to the accident and not replacement value. If the property can be repaired, the amount of damages can be set at the amount it costs to
repair the property plus the loss of its use by the owner. However, if the cost to repair the property exceeds the fair market value of the property before
loss, the damages can be limited to the fair market value.

Funeral expenses: Family of a personal injury victim can recover costs of any funeral expenses incurred as a result of the injury.

Pain and suffering: an injured can claim damages for pain and suffering that result from the injury. Damages include compensation for actual
physical pain and emotional distress. Emotional distress is defined as the frustration, fear, anger and loss of enjoyment of life associated with suffering
from a debilitating injury[iv]. Any plaintiff is entitled to get compensated for the pain and sufferings endured by him/her as a result of the wrongful act or
omission of a defendant. The pain and suffering also includes the suffering that the person endured during any surgery or medical treatment that the
person went through that was reasonably required by the accident. However, damages under the element pain and suffering can not be awarded if there is
no proof of severe injury and if there is sufficient proof that the pain is just imaginary[v]. In a state of unconsciousness, pain cannot be experienced and
there can be no recovery for pain and suffering[vi]. However, infants can recover for pain and suffering caused by a negligent accident because they are too
young to explain their pain[vii]. The use of sedatives and drugs to relieve the injured of the pain is also prominent evidence to show the gravity of the pain
and suffering.

Loss of consortium: Spouses of personal injury victims can receive damages for the loss of the emotional and intangible elements of marriage,
such as loss of affection, solace, comfort, companionship, society, assistance, and sexual relations[viii]. Generally, in a tort action, the person injured is
awarded the damages. In loss of consortium actions, the family of the tort victim who suffered loss should be compensated. When a spouse is
incapacitated or is dead as a result of an accident caused by a third party, the other spouse goes through a pain and loneliness that is also severe. Loss of
consortium can be demanded when normal romantic and recreational lives of the spouses are affected by an accident caused by the negligence of a

tortfeasor. Children of an injured or dead person can also move an action for loss of consortium. They can recover the damages for the past and future
losses of their lost parent[ix].
Mental anguish and emotional distress: in a personal injury action, damages can also be sought for mental anguish. Mental agony can be

inferred from physical pain and suffering[x]. A jury can award damages under their discretionary power to an emotionally distressed person if it is evident
from the proofs that the mental distress was caused as a result of the accident. The amount that can be awarded is also under the jurys discretionary
powers. Damages can also be awarded for traumatic neurosis and mental depression that relates to physical injuries[xi]. Loss of ability to do work or
permanent disability renders a victim mentally depressed with grief and all these factors are considered by the jury while determining damages. Damages
can be given to victims for their experience of terror from impending death[xii].
Loss of enjoyment of life: Damages for loss of enjoyment of life arise from physical disability that include a cosmetic deformity[xiii]. The

plaintiffs capacity to live a normal life should be affected by such deformity. A person can claim damages for loss of enjoyment of life if the physical
impairment resulting from an accident limits the capacity to share in the amenities of life. The jury can award reasonable amount as damages if substantial
evidence shows that the injured person had enjoyed certain amenities in life and only because of the accident is not able to enjoy them.
Permanent disability and disfigurement: If due to an accident, a person is left with a disfigurement or permanent disability the person can seek

additional compensation. For example, there have been some medical malpractice cases where the medical staff amputated the wrong limb of a patient
which left the patient permanently disfigured and disabled. This provides the patient additional compensation under the category of permanent disability
and disfigurement.
A jury takes into consideration certain factors before awarding compensation in personal injury cases. The victims age, earning capacity prior to the
accident, mental and physical health, habits, nature and extent of the injuries, suffering of the victim and the period of suffering, loss of income, impact of the
injury on victims life style are all considered by the decision makers before calculating the compensation for personal injuries in economical terms[xiv]. The
jury relies on the substantial evidence provided by a plaintiff on the loss suffered by the plaintiff because of the injury caused by a third partys
negligence[xv]. The severity of the injury and length of the illness will also be taken into consideration by the jury before awarding the damages[xvi]. While
determining compensation for an injured minor, the jury should take into consideration the ability to produce future earnings because the minor has not
acquired an earning capacity[xvii]. However, there should be substantial evidence to prove that the injury will have an effect on the future earning capacity of
a minor.
[i] New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 395 (Miss. 1866)
[ii] Kemps Garage, Inc. v. Poole Truck Lines, Inc., 606 So. 2d 144 (Ala. Civ. App. 1992)
[iii] Jones v. Flood, 118 Md. App. 217 (Md. Ct. Spec. App. 1997)
[iv] Ciarrocca v. Campbell, 282 Pa. Super. 60 (Pa. Super. Ct. 1980)
[v] Durosky v. United States, 2008 U.S. Dist. LEXIS 97383 (M.D. Pa. Dec. 1, 2008)
[vi] Gregory v. Carey, 246 Kan. 504 (Kan. 1990)
[vii] Friel v. Vineland Obstetrical & Gynecological Professional Asso., 166 N.J. Super. 579 (Law Div. 1979)
[viii] Tavakoly v. Fiddlers Green Ranch of Fla., Inc., 998 So. 2d 1183 (Fla. Dist. Ct. App. 5th Dist. 2009)
[ix] Haley v. Pan American World Airways, Inc., 746 F.2d 311 (5th Cir. La. 1984)
[x] Kaufman v. Miller, 414 S.W.2d 164 (Tex. 1967)
[xi] Jackson v. International Paper Co., 163 So. 2d 362 (La.App. 3 Cir. 1964)
[xii] Kuczynski v. Weimann, 1990 Conn. Super. LEXIS 1885 (Conn. Super. Ct. Oct. 17, 1990)
[xiii] Orr v. Mukasey, 631 F. Supp. 2d 138 (D.P.R. 2009)
[xiv] Garfoot v. Avila, 213 Cal. App. 3d 1205 (Cal. App. 5th Dist. 1989)
[xv] Sebastian v. Kluttz, 6 N.C. App. 201 (N.C. Ct. App. 1969)
[xvi] Fischer v. Mahlke, 18 Wis. 2d 429 (Wis. 1963)
[xvii] Allen v. Bonnar, 22 Wis. 2d 221 (Wis. 1964)

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