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Remedies in Tort Law
Remedies in Tort Law
Lets take a closer look at different possible injuries, damages and what is
required:
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In a negligence action a plaintiff has to show actual damages as part of
his cause of action. Unlike intentional torts, in negligence there are no
nominal damages awarded. In negligence cases damages are not
presumed as in intentional tort cases.
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Nominal damages are very small damages awarded to show that the loss
or harm suffered was technical rather than actual. These damages will be
awarded for a technical violation of a contract or for an intentional tort to
vindicate the plaintiffs claim where no recoverable loss can be
established.
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Once the plaintiff has sustained some physical injury, he can recover
damages for all the harm he sustained which may include:
Medical expenses
Lost earnings (plaintiff missed work because he was hurt)
Pain and Suffering: includes both the amount of pain suffered up to
the time of trial and an estimate of future pain to be suffered for
the rest of ones life.
Future earnings: (taking into account inflation and interest rates)
Mental distress: which includes fear and shock when injured,
humiliation from disfigurement, impairment of activities, such as
sex, sports, etc..., anxiety over new life.
Property damages: which can be measured either by the cost to
repair the damaged item or, if repair is not possible, by the fair
market value of the destroyed property.
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Punitive Damages: recoverable only in cases of gross negligence or
wanton or reckless conduct.
Attorneys fees: In addition to damages, the successful party is
entitled to be awarded his reasonable legal costs that he spent
during the case. This is the rule in most countries other than the
United States. In the USA, a party generally is not entitled to its
attorneys fees of for the hardships undergone during trial.
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Damages for lost earning/working capacity in the future because the
defendants actions lowered plaintiffs life expectancy or because
defendant injured/disabled plaintiff, etc... The jury is allowed to
approximate the value of damages. Testimony by experts is often used.
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Damages for personal injuries are TAX FREE, regardless of whether
damages are awarded by a court judgement or received as part of a
private settlement. Courts are split on issue of whether defendant is
allowed to tell the jury that damages are tax-free.
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The amount of damages is not reduced if plaintiff could or did recover
compensation from other sources. (i.e., insurance, disability benefits,
social security). Even if the plaintiff receives free medical care, the
defendant has to compensate the plaintiff for the reasonable value of
those benefits. RATIONALE:
Plaintiff pre-paid to receive these benefits, (i.e., plaintiff paid
insurance premiums all his life so it is unfair to reduce his
damages.
Even if plaintiff did not pre-pay (i.e. free services) it is not right
to aid the defendant who is a tortfeasor.
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Plaintiff cannot recover damages for injuries he reasonably could have
avoided. There is a duty to minimize damages. Usually this applies to
conduct after the accident only. Some courts also look to conduct before
accident, i.e. did the plaintiff take adequate precautions. (Cases involving
the non-use of seat belts come under this heading.) Some courts will
reduce damages because of plaintiffs failure to take adequate
precautions.
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Punitive damages, which are also termed exemplary damages in the
United Kingdom, are not awarded in order to compensate the plaintiff,
but in order to reform or deter the defendant and similar persons from
pursuing a course of action such as that which damaged the plaintiff.
They are awarded as a punishment, meaning that they are always in
excess of the actual harm suffered. Great judicial restraint is expected to
be exercised in their applications. In the United States, punitive damages
are subject to the limitations imposed by the due process of law clauses of
the Fifth and Fourteenth Amendment to the U.S. Constitution.
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