Damages are awarded for any quantifiable past losses, like past and future medical expenses, and lost wages and loss of earning capacity. General damages are also awarded in these actions. General damages are most commonly referred to as pain and suffering.
In California personal injury actions, such as an auto accident, the damages are awarded to place you as closely as possible to your position prior to the injury. You may hear attorney's mention this as making you whole again.
The amount of economic damages that are awarded is usually based on the degree of injury you suffered. People v. Southern California Edison Co. (1976) 56 Cal. App. 3d 593. One of the best ways to understand this is to attempt to look objectively at what your injuries are and the amount of pain suffered. A person who fell and scraped his knee is not going to be awarded very much money. However, someone who has lost a limb or had to endure multiple surgeries will receive a much greater sum of money.
An injured person in must be able to establish the extent of the harm and what would be adequate amount of compensation "with as much certainty as the nature of the tort and the circumstances permit. " Clemente v. State of California (1985) 40 Cal. 3d 202, 219. Sometimes this may be easy and sometimes it may be extremely difficult.
A pedestrian who was struck by a car and suffered a fractured femur will easily be able to point to the treatment and the injury; someone who was rear-ended in a car accident and suffered neck and back injuries sometimes has a much more difficult time establishing the certainty of damages. The defendant may argue that your back pain was pre-existing from a long ago workers compensation action.
Depending on the phase of the case, establishing certainty of damages is done several different ways. Your personal injury attorney may attempt to settle the case without a lawsuit. If that is the case, any argument for recovery would be based on your medical records. If you are at trial or mediation, he or she may attempt to argue compensation based on a medical doctor's expert opinion. Remember, the more evidence your attorney has regarding your injuries the better the chance of a larger recovery.
General damages are your noneconomic or intangible losses that directly flow from the cases. These damages are always subjective and difficult to quantify.
PAIN AND SUFFERING
These damages are what is most commonly referred to as pain and suffering. These damages do not have to be stated in a lawsuit because the other party is presumed to be aware of those damages simply by committing the act that caused injury. If you were in car accident and suffered an injury, then you are experiencing pain. It is that simple.
What is not so simple is how these damages are calculated. Many people wrongly believe that pain and suffering as an automatic equation of double the medical expenses. That is not always the case.
Each incident is different and depends on the facts of the case. Fractured bones and multiple surgeries are clearly more painful than a few bruises. The award of pain and
suffering is dependent upon the advocacy of your attorney and the injury you suffered
Remember that damages are awarded to fully compensate the victim for the injury and harm suffered; there is no hard fast rule or calculation for what you will be awarded. Provide your personal injury attorney with all the evidence you possibly can. The more evidence he or she has, the easier it will be to argue for greater compensation.
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