What are damages?
Damages refer to monetary remedies used to compensate an injured party in a civil action. They apply to those who are harmed in contractual relationships as well as those harmed by the negligence of others, as in the case of a car accident. The courts have approached the notion of damages as something to sooth the pain and anguish one might have suffered as a result of the wrong doer’s negligence. It may be provided not as punishment to the wrong doer but as compensation to the claimant.
What does one need to establish in order to succeed in a claim for accident damages?
The particulars of the wrong doers negligence must be correctly pleaded in court papers and in our jurisdiction it includes one or more of the following :
- The wrong doer drove without due care and attention.
- He/she was not keeping a proper look out.
- He/she was driving at an excessive speed.
Special & General Damages
In a typical car accident, compensation for a victim will primarily be based on all of the compensatory damages that apply to their property loss or personal injury claims.
Special Damages
Also referred to as “economic damages,” these are the more concrete and quantifiable costs of a car accident, such as: Car rentals, lost wages, towing costs, ambulance cost, lost earning capacity, lost business opportunities, vehicle repairs or replacement values, medical expenses (labs, X-rays, medical visits and other out-of-pocket costs
Supporting evidence
Special damages are often proven through documentary evidence like receipts, vehicle repair estimates and invoices. For longer-term injuries, car accident victims can recover for past as well as future expenses. The latter are estimated based on past costs as well as expert testimony regarding the likely costs to be incurred in the future. For example, if a victim has had six months of physical therapy but is estimated to require another year of physical therapy after their trial or settlement, this future cost can be included in their claim for car crash injury compensation.
General Damages
Also referred to as “non-economic damages,” these costs are less tangible and based on subjective assessments. Examples of general damages include: disfigurement, pain and suffering, emotional distress, Loss of consortium, loss of companionship, loss of enjoyment of life and physical pain or impairment.
Supporting evidence
General damages can be proven through such things as photographs, medical records documenting symptoms and limitations, and witness testimony. Witnesses can include the car accident victim, their loved ones or their medical providers, each of whom would be in a position to personally observe the victim’s ongoing symptoms and limitations. Expert testimony can also be used to elaborate on specific conditions, like post-traumatic stress disorder or concussions, which can help in the process of determining their monetary value.
Quantum of damages
The assessment of such damages is not an easy task. In Minister of Defence and Another v Jackson 1990(2) ZLR 1 (S.C) at page 7 GUBBAY J.A.(as he then was) recognised this difficulty when he said that:
“It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task of assessing damages for personal injury is one of the most perplexing a court has to discharge…
The judge went on to outline eight broad principles that should guide court in assessing such damages. These principles include that:
- General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrong doer.
- Compensation must be so assessed as to place the injured party, as far as possible in the position he would have occupied if the wrongful act causing him the injury had not been committed.
- Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations.
- The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in the future.
- The fall in the value of money is a factor which should be taken into account in terms of purchasing power, but not with such an adherence to mathematics as may lead to an unreasonable result.
- No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon or vary according to whether he be a millionaire or a pauper.
- Awards must reflect the state of economic development and current economic conditions of the country. They should tend towards conservatism lest some injustice be done to the defendant.
- For that reason, reference to awards made by the English and South African courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic are so different.”
It’s hard enough to navigate your injuries after a car accident without having to figure out all of the damages you’re entitled to under the law. That’s where an experienced attorney can help.
DISCLAIMER
This content does not constitute legal advice and should not be relied upon as legal advice for any particular situation. Nothing in this content should be interpreted as creating an attorney-client relationship. If you have legal questions, you should consult the advice of an attorney who is licensed to practice in Zimbabwe.