Compensation for Physical Injuries - Article Example

Name of the Student Name of the Professor Law Name of the University Law 1. Introduction The damages caused for property or serious injuries for the body need financial help to over come the challenges of repair and recovery. The people who operate the automobiles must show reasonable care under all circumstances. The failure of not exercising the care amounts to negligence. The person who showed negligence has to pay for the compensation of the victim. Here in this case the negligent is considered as defendant and the victim is known as plaintiff. Plaintiff has to prove that the injury or damage has been caused due to the negligence of the defendant. The plaintiff, if proved that, can recover actual expenses associated with property damage and medical costs, economic damages and emotional and physical pain and suffering compensation. If the automobile has been insured, the insurance company will pay for the third party; the victim. If the automobile involved in the accident comes under underinsured driver, the negligent or driver may not get any insurance cover from the insurance company. 1 2. Compensation for Physical Injuries In traditional tort law involving the compensation of damages or injuries, the culpable negligence of one of the parties is taken into consideration. In this case as the negligent is tanker driver Usman, the plaintiffs should approach insurance company for recovery of the cost happened due to damages. As Usman’s contributory negligence is due to the inability to negotiate the bend, the whole responsibility falls on insurance company and the Cenco Ltd, which hired Usman. If the Jury supposes that the victims in the accident mentioned in the case are unattached, then the plaintiffs need to run a litigation against the organizers of the race and training camp, who did not take enough precautions to avoid the accidents. In this case instead of taking the damage occurred to the community as a whole, if the individuals make the insurance company and the organizers of the race and training camp as defendants, then the case may help in having individual share of the damage according to the injury or loss caused. One can have reasonable compensation paid if the lawyer is able to prove that the culpability and accountability is measured according to the damage caused but not according to the acceptable behavior. The payment of the compensation and cost assessment depends on (1) the decision of assessment of charges against the defendant and for his conduct causing injury, (2) separate decision for making compensation paid to injured, according to the loss occurred but not related to the behavior. The assessment as a consequence of particular accidents or assessment of the activity independent of involvement of individual will help the victims in the present case. As the driver Usman is not drunk, he can apply for insurance company that there is nothing to blame him. In this case the insurance company has to pay the compensation depending on the loss occurred to the plaintiffs. At this juncture, the insurance company and Cenco Ltd may drag the organizers of the race and training camp into litigation. This may delay the settlement of claims and this delay can be avoided if the plaintiffs involve organizers of race and training camp along with insurers and Cenco Ltd. The lawyer of the plaintiff should prove that the damages, injuries or loss would not have occurred if the action of the defendant has been absent. This makes the insurance company and the Cenco Ltd to pay for the most of the compensation. The same principle cannot be applied to while running litigation against organizers of race or training camp as it involves the action of the participants also for the damage occurred. To make use of above principle, the insurance company and Cenco Ltd can be put as defendants in one case and the organizers of race or training camp in other litigation. As the driver Usman may or may not be able to bear the full cost of the damages and injuries occurred, the case might be strong if the defendants are combined entity of insurance company and Cenco Ltd in one case and the organizers of the race and training camp in other litigation. In this case the inability to negotiate the curve that caused Usman to plough into the cycling team can be termed as action and that unforeseen incident can be taken as the one that makes the insurance company and Cenco Ltd to pay the loss caused. 2 The above is for the damages regarding the death or injuries to the plaintiffs. The economic damages caused to stall owners Bob and the Cancer research Institute’s fund raising program can be compensated if they insure their activities of business. The loss of profit cannot come under the compensation paid and they may get the compensation for the cost of the property damaged. The loss of profit can be claimed from the insurance company if they have insured the activities that are set to take place in the course of racing and training activities. 3. English Law About Compensation In case of pecuniary losses regarding personal injury, pain, suffering, death, English Courts will willingly grant damages according to ‘State Liability in Tort: Comparative Law Study. However in English Law there is no certain provision to grant compensation to grief and distress unconnected with the claimant’s own physical injury. If this amounts to psychiatric harm, it can be compensated if it is proved so. The claimant must be present in the spot of accident and all the people who suffered permanent physical injury or death are present at the accident spot and are legally qualified for getting compensation from Insurance company or from Government. 3 According to Fatal Accidents Act 1846, which is also referred as Lord Campbell’s Act, allows relatives of the persons faced death by wrong doing of others to recover damages. According to common law of England and Wales, the death and injury of a person causes solely emotional and economic loss to their relatives. These claims are fit to get compensation only for the physical damage of the claimant according to rule declared by court in Baker v. Bolton in 1808. In case of injury, the wrong doer will be made liable for causing that. In case of death, the interest of wrong doer in killing him should be proved to get compensation other than economic loss. In this of Usman’s tanker running into the cyclists, the death case also may be eligible to get only compensation for physical damage as it is difficult to prove Usman’s interest in killing the person. The incident can be compared to epidemic of railway deaths and the indifferent attitude of railway companies in 1830. 4 According to deodands act brought into force in 1846, the personal representatives of the injured and dead in fatal accidents have a right to bring a legal action for damages. As the compensation is restricted to husband, parent of person dead or injured, the mother of the dead person and other injured, who suffered temporary and permanent losses, can get compensation from insurance company or government under this law for their economic losses due to death and injury. There is some doubt about assessing the damages regarding loss. The points held in the case of Franklin v. South Eastern Railway in 1858, declared that the damages can be given only for economic loss due to injury or death. According to Fatal Accidents Act that received royal assent in 1976, the death and injuries caused to the person entitle the relatives or the person to recover damages in respect of the injuries caused or death happened. As in this case the injuries and death are caused due to negligence of Usman, the tanker driver, the injured or kin of dead can recover damages from insurance company or the company hired Usman or Usman himself. 5 4. Economic Losses While considering the compensation for the economic losses of Bob and Cancer research institute, the aspect of compensating the loss of earnings need to be considered. According to the present established law and wisdom of economics, pure economic loss is a transfer of wealth from the victim to a third party. The earnings of the third party may increase as a consequence of the accident. In this case, such transfers can be considered as the social loss and cannot be compensated for an individual or for a company. The social loss can be calculated by pure economic loss that involves the impairment costs and valuable resources. These cannot be used temporarily. Moreover the third party earnings come at the cost of increased capacity. This aspect of increased capacity mitigates the expected damage and can be considered only as a precaution. According to this argument, the pure economic loss caused, do result in a socially reasonable loss. To deny the payment of the compensation, the absence of social loss is necessary but not sufficient. If the lawyer of Bob and cancer research institute is able to convince judge accordingly, their case can be made suitable to receive compensation from insurance company and Cenco Ltd. For this purpose the lawyer should prove that the victim or the third party has actually paid for the protection against purely private losses of the activities involved and the material that is damaged or lost. According to this argument that is involving Fatal accidents Act 1976, the compensation should be given treating the damages caused due to the negligence or tort. Moreover, the present case of loss to Bob and cancer research institute does not come under contract between them and the actor caused the accident. As a result, this needs to be termed under Fatal Accidents Act, 1976 to enable the victims to be paid for their loss. 6 References The referencing has been done on the basis of the following format given on http://www.lisa.sbu.ac.uk/helpsheets/hs29.pdf Campaign for Freedom of Information, ‘Whistleblowing’ accessed 23 October 2006 1. Mac Dowell Associates , PC, Personal Injury Legal Information, accessed on 5th January 2008 2. William Vickrey, Automobile Accidents, Tort Law, Externalities, and Insurance: An Economist’s Critique, accessed on 5th January 2008 3. Duncan Fairgrieve, State Liability in Tort: A Comparative Law Study, Oxford University Press, edition not available, 4. Media Wiki, Fatal Accidents Act 1846, Wikipedia, edition not available, Read More