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(Personal Injury Division)
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Personal Injury

Many of our clients have found the below description helpful.

A personal injury occurs when a person has suffered some form of injury, either physical or psychological, as the result of an accident or medical malpractice.

The most common type of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, defective product accidents and holiday accidents. Indeed, there are a multitude of types of accident and the term personal injury also incorporates medical and dental accidents, which lead to numerous medical and dental negligence claims every year, and conditions which are often classified as industrial disease cases. Industrial disease type cases include asbestosis and mesothelioma, chest diseases such as emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermititus, and repetitive strain injury cases.

When the accident was the fault of someone else, the injured party may be entitled to monetary compensation from the person whose negligent conduct caused the injury. At least in the United States this system is complex and controversial with critics calling for various forms of tort reform. Attorneys often represent clients on a "contigency basis," in which the attorney does not charge for services until the case is resolved




Negligence

Negligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries not accidents. Negligence is a type of tort also known as a civil wrong. Negligence is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of diligence. It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision.

Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.


Negligence Suits

Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each are defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model," writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice," he goes on to warn, "several varieties of confusion or conceptual mistakes have sometimes occurred."


Duty of Care

The case of Donoghue v. Stevenson[ illustrates the law of negligence, laying the foundations of the fault principle.The Plaintiff Donoghue drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer under a certain Mr. Stevenson of Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed snail. She then sued Mr. Stevenson, though there was no relationship of contract, as the friend had made the payment.

As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Mr David Stevenson. In his ruling, justice Lord MacMillan presiding over the case defined a new category of tort, (which is really not based on negligence but on what is now known as the implied warranty of fitness of a product in a completely different category of tort products liability because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to love thy neighbour, as the legal requirement to not harm thy neighbour. He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. Reasonably foreseeable harm must be compensated. This is the first principle of negligence. In England the more recent case of Caparo v. Dickman [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.


Breach of Duty

Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty.

Breach of duty is not restricted to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. A person who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. The past should not be viewed through rose coloured spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients.


Factual Causation

For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, my breach of duty. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.

Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business.


Remotness of Causation

Sometimes factual causation is distinguished from 'legal causation' to avert the danger of defendants being exposed to, in the words of Cardozo, J., "liability in an indeterminate amount for an indeterminate time to an indeterminate class."[5] It is said a new question arises of how remote a consequence a person's harm is from another's negligence. We say that one's negligence is 'too remote' (in England) or not a 'proximate cause' (in the U.S.) of another's harm if one would 'never' reasonably foresee it happening. Note that a 'proximate cause' in U.S. terminology (to do with the chain of events between the action and the injury) should not be confused with the 'proximity test' under the English duty of care (to do with closeness of relationship). The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?

For instance, in Palsgraf v. Long Island Rail Road Co. the judge decided that the defendant, a railway was not liable for an injury suffered by a distant bystander. The plaintiff, Palsgraf, was hit by scales that fell on her as she waited on a train platform. The scales fell because of a far-away commotion. A train conductor had run to help a man into a departing train. The man was carrying a package as he jogged to jump in the train door. The package had fireworks in it. The conductor mishandled the passenger or his package, causing the package to fall. The fireworks slipped and exploded on the ground causing shockwaves to travel through the platform. As a consequence, the scales fell. Because Ms. Palsgraf was hurt by the falling scales, she sued the train company who employed the conductor for negligence.

The defendant train company argued it should not be liable as a matter of law, because despite the fact that they employed the employee, who was negligent, his negligence was too remote from the plaintiff's injury. On appeal, the court agreed, however, it was divided when it came time to explain the reason why the defendant was not liable. One view was that the defendant owed no duty of care to the defendant, because a duty was owed only to foreseeable plaintiffs. This was the view advanced by Judge Cardozo. The other view was that the defendant owed a duty to the defendant, regardless of foreseeability, because all men owe one another a duty not to act negligently. This was the view advanced by Judge Andrews. According to Andrews, however, the defendant still should not be liable because, despite having owed a duty, and breached it, the breach was not the proximate cause of the injury.

This difference of opinion in the role of remoteness continues to trouble American courts. Courts follow Cardozo's view have greater control in negligence cases. If the court can find that, as a matter of law, the defendant owed no duty of care to the plaintiff, the plaintiff will lose his case for negligence before having a chance to present to the jury. Cardozo's view is the majority view. However, some courts follow the position put forth by Judge Andrews. In jurisdictions following the minority rule, defendants must phrase their remoteness arguments in terms of proximate cause if they wish the court to take the case away from the jury.

Remoteness takes another form, seen in the Wagon Mound No. The Wagon Mound was a ship in Sydney harbour. The Wagon Mound was a ship which leaked oil creating a slick in part of the harbour. The wharf owner asked the ship owner about the danger and was told he could continue his work because the slick would not burn. The wharf owner allowed work to continue on the wharf, which sent sparks onto a rag in the water which ignited and created a fire which burnt down the wharf. The UK House of Lords determined that the wharf owner 'intervened' in the causal chain, creating a responsibility for the fire which canceled out the liability of the ship owner. In Australia, the concept of remoteness, or proximity, was tested with the case of Jaensch v. Coffey. The wife of a policeman, Mrs Jaensch suffered a nervous shock injury from the aftermath of a motor vehicle accident although she was not actually at the scene at the time of the accident. The court upheld in addition to it being reasonably foreseeable that his wife might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident. Here there was sufficient causal proximity.



Damages

Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not recover for injury unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover for it. As a general rule, a plaintiff can only recover legal remedy to the point that he proves that he suffered a loss. It means something more that pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to Nominal damages and any other damages according to proof. Negligence is different in that the plaintiff must prove his loss, and a particular kind of loss, to recover anything. In some cases, a defendant may not dispute the loss, but the requirement is significant in cases where a defendant cannot deny his negligence, but the plaintiff suffered no loss as a result. If the plaintiff can prove pecuniary loss, then he can also obtain damages for non-pecuniary injuries, such as emotional distress. The pecuniary loss requirement can be shown in a number of ways. A plaintiff who is physically injured by allegedly negligent conduct may show that he had to pay a medical bill. If his property is damaged, he could show the income lost because he could not use it, the cost to repair it (although he could only recover for one of these things). For example, if a plaintiff is in a car accident, he may have evidence of how much it cost for a professional to repair the car. The damage may be physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss of earnings consequent on a personal injury), reputational (e.g. in a defamation case), or in relationships where a family may have lost a wage earner through a negligent act. In English law, at least, the right to claim for purely economic loss is limited to a number of 'special' and clearly defined circumstances, often related to the nature of the duty to the plaintiff as between clients and lawyers, financial advisers, and other professions where money is central to the consultative services.

Emotional distress has been recognized as compensable in the case of negligence. The general rule was that emotional distress damages had to be parasitic. That is, the plaintiff could recover for emotional distress caused by injury, but only if it accompanied a physical or pecuniary injury. A plaintiff who came to court having suffered only emotional distress and no pecuniary loss would not win a suit for negligence. However, a modern trend allows recovery for a plaintiff to recover for negligence causing him purely emotional distress under certain circumstances. The state courts of Maryland allowed recovery for emotional distress alone � even in the absence of any physical injury to the plaintiff, when the defendant physically injures a relative of the plaintiff, and the plaintiff witnesses it.


Compensatory Damages

Compensatory damages, also called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered by (see requirement of causation) another's breach of duty. Quantum/measure of damages - breach of duty - contract On a breach of contract by a defendant, a court generally awards the sum which would restore the injured party to the economic position that he or she expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages). When it is either not possible or desirable to award damages measured in that way, a court may award money damages designed to restore the injured party to the economic position that he or she had occupied at the time the contract was entered (known as the "reliance measure"), or designed to prevent the breaching party from being unjustly enriched ("restitution")

Parties may contract for liquidated damages to be paid upon a breach of the contract by one of the parties. Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed penal damages). The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss. Courts have ruled as excessive and invalidated damages which the parties contracted as liquidated, but which the court nonetheless found to be penal. Quantum/measure of damages � Breach of duty � tort Damages in tort are generally awarded to place the claimant in the position he/she would have been had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages.


General Damages

General damages compensates the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances of the claimant. General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or in the tort of defamation.


Special Damages

Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, etc. They are seen in both personal and commercial actions. Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate problems) and consequential or economic losses resulting from lost profits in a business. Special damages basically include the compensatory and punitive damages for the tort committed in lieu of the injury or harm to the plaintiff. Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome.


Piercing The Corporate Veil

Understanding corporate veil as defined by "Intuit Quickbooks", When you establish a company by forming an LLC or another business structure, you are creating a legal entity. It can enter into contracts, purchase goods and services, take on debt, and file litigation against others. Legally, it has most of the same rights and powers that you have in your personal life.

Because your business is a separate entity, if it gets sued, defaults on a loan, or declares bankruptcy, creditors can’t place a claim on your personal assets — at least in theory. This is called “the corporate veil.”

The Corporate Veil as defined by "Business Dictionary" - is a legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations. This protection is not ironclad or impenetrable. Where a court determines that a company's business was not conducted in accordance with the provisions of corporate legislation (or that it was just a façade for illegal activities) it may hold the shareholders personally liable for the company's obligations under the legal concept of lifting the corporate veil.

"Piercing the corporate veil" as stated by "Cornell Law School" - refers to a situation in which courts put aside limited liability and hold a corporation's shareholders or directors personally liable for the corporation’s actions or debts. Veil piercing is most common in close corporations.

A simple example shown in "Wikipedia" - would be where a businessman has left his job as a director and has signed a contract to not compete with the company he has just left for a period of time. If he sets up a company which competed with his former company, technically it would be the company and not the person competing. But it is likely a court would say that the new company was just a "sham", a "cover" or some other phrase, and would still allow the old company to sue the man for breach of contract.



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