Recoverable Damages for Personal Injury Cases
Compensatory DamagesCompensatory, or actual, damages seek to make the victim whole, i.e. to restore the victim insofar as possible to his or her preinjury condition. There are two types of compensatory, both of which should be sought by the victim: "general" and "special" damages.
1. "General" damages consist of noneconomic damages that naturally flow from the injury and which are not quantifiable by reference to a bill. General damages most commonly compensate the victim for "pain and suffering." It is important to note that general damages are typically presumed to have incurred when the existence of special damages has been established. Moreover, special damages are not a prereuisite to the recovery of general damages.
2. "Special" damages consist of all economic losses that occurred as a result of the injury, e.g. medical bills, repair bills, loss of income, etc. Accordingly, it is of extreme importance that documentation is maintained throughout the litigation.
Future DamagesIn addition to recovering damages up to the time of settlement, victims may recover damages that are reasonably certain to be suffered in the future as a result of the injury, e.g. future pain and suffering, future loss of income, future medical expenses, etc.
Notwithstanding, it is important to note that a lump-sum damages award that is inclusive of future damages is "discounted" to their present cash value for the probable period of disability.
Prejudgment InterestVictims are sometimes entitled to prejudgment interest as part of their compensatory damages award. There are three controlling provisions in the California Civil Code that address prejudgment interest. With regard to personal injury, CC 3291 creates an absolute right to 10% prejudgment interest on the compensatory damages portion of a personal injury award when a rejected CCP 998 settlement offer is exceeded by the judgment.
Attorney's FeesGenerally, attorney's fees are not recoverable in personal injury cases unless the parties otherwise agree or a statute or caselaw otherwise provides. Under CCP section 1021.5, the court may award attorney's fees to the prevailing party. If the requirements of CCP 1021.5 are all met, full fees must be awarded unless special circumstances would render such an award unjust.