Injury is harm occasioned on a person. It can be physical, mental or other act that leads to harm. Physical injuries are easily seen unlike most mental injuries. Sometimes, they require an expert to ascertain their veracity and extent of harm to the injured person.
The uniqueness of each case is what will eventually persuade Court to award damages and in what amount or currency.
Physical injuries are assessed after a medical examiner or expert has carried out his thorough investigations.
To rely on a medical report, a medical check-up of the injured person is mandatory. Therefore, a trained, qualified and certified medical personnel will be tasked with carrying out a medical exam and to establish the nature and extent of the injury on the injured person.
Courts are hesitant when it comes to medical reports that are not dated, signed or detailed. The reports of medical experts must be made by a qualified authority whose findings enable courts determine how much damages an injured person gets.
What are damages?
‘Damages’ in legal terms is literally, money. This money is quantified in currency and is assessed by court after careful consideration of the facts presented in a case.
Because most compensation is made in monetary terms, injured persons are awarded money equivalent to what court thinks is adequate to restore them to the previous status or help the injured persons cope with the aftermath.
Damages have two categories: pecuniary and non-pecuniary.
Pecuniary damages can be calculated in terms of loss. It is possible to calculate the value of a car involved in a road accident where the owner is injured.
It is difficult to calculate loss of a life, eyesight, a limb, hearing, speech, motion, bodily pleasures and life expectancy, etc. Therefore, courts derive means to measure the extent of loss and quantify it in figures to give a ‘likeness’ of actual loss in monetary terms.
Restitutio in integrum
This Latin maxim/principle encompasses the element of damages in personal injuries.
It means to restore to previous status.
Unfortunately, it is impossible to restore an injured person to his previous heath status after any injury, despite its gravity. The damage is done. But offering him compensation might ease his present and possible future hardships which his injured body may not achieve, control or handle should he choose to progress in the incapacitated lifestyle after injury.
What is assessed?
- The general (sometimes specific) condition of the injured person before the injury. This stage, often inquisitorial, will enable the medical expert and Court quantifies and qualifies the injured person’s previous ability to do things like he used to; and how the present injury affects the former status. Eventually, it is easy to assess how the present injury will affect the injured person in the future.
The history of the injured person’s health before the injury is a fundamental piece of evidence when calculating damages.
An epileptic injured person, for instance, might be involved in an accident which he could have avoided had it not been for his epileptic attacks. An underlying health condition or physical impairment, whether known or unknown, will influence certain results. That is why each case is unique in its own set of facts. It is therefore, important for the injured person to reveal all information so as to receive a ‘fair’ amount of compensation.
- Court relies on the medical report when awarding damages to the injured person hence the need to be thorough when explaining the magnitude of the injury. The higher the degree of harm, the higher the damages.
- The attitude expressed by the injured person before the accident can also contribute to the award and the amount of damages awarded. A suicidal injured person, for example, who may or may not attempt to involve himself in an accident, will equally be evaluated to ascertain whether or not he intended to be harmed.
- The accident or injury: The nature of the accident plays an important role in ascertaining injury and thereafter, damages. Falling from a 10-storeyed apartment and being injured in an arsenic attack may be similar because they have caused injury but are different accidents, altogether!
Measuring the impact of the accident or injury helps Court to know if it was a malicious or accidental incident: to know if the injury was foreseen, and if so, if it was prevented at all, etc.
In arson, for example, the temperature of the scene and degree of the burns, duration of the fire, the source of the fire, presence of protective wear, etc will be reviewed.
Each impact carries its own weight before the Court and that is why claimants ‘pray’ for damages from court’s discretion.
- The nature of treatment administered: Under this theme is the type of medical attention offered as well as the period during it lasted.
If an injured person was subjected to heavy painkillers like morphine or stronger than that; if he was operated on; if he had to use extra support to do things he previously performed singly, etc, that will be considered.
Similarly, the time/duration it takes for an injured person to resume his previous responsibilities and whether or not he requires extra support to do so in that time are considered.
An individual case has its own facts unique only to its circumstances; and Courts will therefore follow established principles applicable to the case at hand.
An injured person who loses his eyesight is similar to but different from the one who becomes permanently blind. The line between facts is thin but evident and Courts will consider each circumstance differently. Say, a partial blinded injured person may have little difficulty using other senses to find his way since he would have known how to use them while he was limited in eyesight. A healthy sighted injured person, on the other hand, will be starting afresh!
Alternatively, Court may argue that the partially blind injured person will have lost the little sight he once had and the emotional or physical constraints may be too difficult to bear much more than one who did not have to strain while he lived a perfect eyesight lifestyle.
Such is Court discretion and rationale.
BY ATUHAIRWE AGRACE
This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 3 of July 21st, 2017
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