The common misconception is that personal injury claims relate to motor vehicular accidents. There is a plethora of situations that could lead to personal injury claims under the tort of negligence. A starting point would be to refer to the neighbour principle which is a fundamental concept in the law of torts.
This principle establishes a duty of care owed by one person to another in certain circumstances. By determining these circumstances, a litigant would be able to identify the ambit of care he is owed by the tortfeasor.
Common examples of claims for personal injury could be seen in cases of professional negligence. A common example would be where a doctor owes a duty to his patient to take reasonable care in exercising his skills and knowledge when treating, diagnosing, and advising his patient. Apart from that, where a person represents himself as an architect to all and sundry, he bears liability not only in contract but also in tort as he ought to foresee that his acts or omissions in drawing the layout plan that buildings are erected based on could potentially affect a third-party individual. From the usual aspect, a personal injury claim would involve a motor-vehicle accident, or even a slip, trip or fall on private or public property, fittings, and furniture.
It is worthy to bear in mind that defamation is also a branch of tort where damages for personal injury is claimable. While the tort is to protect an individual’s reputation against false statements, the harm caused could be deemed to have been personally injurious to a person's psychological wellbeing indirectly causing the victim to suffer mental distress.
It is, however, worthwhile to mention at this point that not all types of torts would eventually lead to a claim for personal injury. A claim for personal injury would in the general sense arise where there is bodily injury which can be clinically assessed and medically diagnosed. The injury can also be objectively seen to cause some form of pain and suffering to the victim or the victim’s family either, physically, or mentally. Therefore, where such a yardstick is absent as a means of measure the other forms of tort such as tort inducement, tort of conspiracy and tort of abuse of process are more likely to involve claims for compensation for commercial losses rather than for personal injury.
In this regard it must be recognised that the law of tort where there is personal injury is also qualitatively different from the law torts which is resultant from the existence or anticipation of there being commercial contractual relationships. One of these differences can be evidenced from the fact that there is a contrast in principle between awarding punitive damages in tort and in a tort arising from a contractual context. The question in principle in the circumstance is whether punishment was a legitimate remedial response to a breach of contract compared to where there was personal injury. While the general rule is that punitive damages could not be awarded in cases of a breach of contract, these awards are not a rarity in claims for where there is personal injury.
Apart from punitive damages, tortious acts that result in an award for compensation for personal injury compared to those that result in commercial losses, also result in an award of compensation for damages suffered by family members and spouses of the victim. For instance, in an action for personal injury, cost of care is awarded for the losses suffered by a family member throughout the period of caring for the victim during recovery from the injury. There is also cost for holidays for the carers well-being and compensation for losses incurred by the dependant or family under sections 7 and 8 respectively of the Civil Law Act 1956.
To sum it up, it is imperative to identify the nature of the tort, whether it is one that has caused physical or commercial harm. Consequently, the type of injury suffered by the claimant must also be considered. If there is personal injury, it would be important to guard against instituting a claim too early if the claimant’s pain and suffering is ongoing, that is where the injury is healing or in the process of healing, or the residual injuries are not yet permanent in nature. Once an award is made, the claimant will not be able to claim for any further pain and suffering of medical cost despite future medical procedures and care being necessary. This would not be usually a concern in cases of tort causing commercial losses as the claim is usually instituted after the loss materialises and the claims would be special damages as opposed to general damages as in the former.
Having clearly identified the nature of the tort and the losses suffered, it would be clearer as to whether there is a viable claim for personal injury or otherwise.
