Most personal injury claims are based on the legal concept of negligence. In order to succeed in your personal injury claim or case you need to prove negligence in accordance with the negligence elements. This article will discuss the negligence elements: causation and damages; and how they work in a personal injury case.
There are four negligence elements that must be proven in a personal injury case in order to succeed. These four elements are:
- Duty of care
- Breach of duty of care
It is important to note that even if the plaintiff is able to only prove three out of the four elements he or she will lose their case. As such, speak to a car accident attorney in Bakersfield for legal advice and representation.
As noted in the previous article, establishing the duty of care and the breach of duty of care is not always a straightforward determination. There are a number of other factors that may affect these two elements.
According to one legal dictionary [What is the Legal Definition of Causation? | WKW] causation “refers to the relationship of cause and effect between one event or action and the result. It is the act or process that produces an effect.” Put simply, causation describes the reason something happens. Therefore, it is not enough to simply show that the defendant was negligent but it is important, in personal injury cases, to go forward and show that as a result of the defendant’s negligence that something happened. For example, if someone is speeding, but their speeding does not cause the accident, then it may not matter that they were being negligent. Every case is different, and proving causation can sometimes be difficult.
The point is that there must be a link between the negligent act and the damages suffered; as a result, near misses do not warrant a personal injury claim. There are two elements of causation:
- Factual cause – the test used to prove factual cause is the ‘but for’ test [But-for test | Wex | US Law | LII / Legal Information Institute (cornell.edu)]. “This test asks, but for the existence of X, would Y have occurred.” For example: If he hadn’t of run the red light, there never would have been an accident.
- Proximate causation – this looks at whether the actions of the defendant are sufficiently linked to your injuries. Sometimes there may be so many other factors that a remote cause will not be considered the legal cause. For example, if John’s mother had never had him, there never would have been an accident. Still, even though John’s birth may have been a “cause” of the accident, the connection to the accident is so remote that it won’t be recognized as a legal cause of the accident.
A common defense for causation is shifting fault to the plaintiff. If it is found that some fault is held by the plaintiff, then whatever percentage fault the plaintiff holds will be deducted from their compensation.
Damages are the legal term referring to any physical and emotional injuries, property damage and loss of income the plaintiff suffers as a result of the incident or accident. This is basically the last element of negligence as its focus is directly on the compensation a plaintiff will receive for their losses. Some examples of damages include:
- Lost wages – this includes actual income lost and vacation time taken to attend to matters relating to injuries suffered, such as the inability to work due to injuries, as well as likely to be lost in the future
- Pain and suffering – this includes elements like mental anguish, loss of consortium, loss of enjoyment of life
- Property damage – this includes damage to a vehicle, the contents of a vehicle, etc.
- Medical expenses – these include medical expenses already incurred as well as future expenses that will be incurred.