Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. 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 (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. 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 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 diseases. Personal injury cases may also include toxic torts, in which a contaminant transmitted by air or water causes illness, injury, or death. Other tort 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
Although personal injury cases may result from an intentional act, such as defamation, or from reckless conduct, 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 severed limbs or brain damage) that cause intense physical pain and suffering receive the highest injury settlements.
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.
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 manner in which attorneys are compensated for representing injured plaintiffs varies by jurisdiction. For example, in the United States, 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 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.
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.
Many jurisdictions have statutes of limitations – laws that determine how much time you have 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 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 limitation, and within a state different types of injuries may have different statutes of limitation. 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 California, 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 birthday 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, you have an additional 6 months to file a lawsuit against a government entity.
In India, in case of motor vehicle accidents there is no time limitation for bringing a claim for compensation.