Thursday, November 15, 2018

Understanding the process behind a personal injury claim

by benleedavis (writer), , July 25, 2014

This article will help you to understand how the courts (if it reaches that far) decide upon how much compensation will be agreed upon for that certain individual.

Personal injury claim awards are not always part of a financial remedy case but they can be significant. This makes it necessary for all the parties involved to understand how the courts treat these kinds of damages.

The approach applied by courts in such situations can be compared to the strategies used when dealing with cases that do not involve marital property. The courts do not ring-fence personal injury damages and usually recourse them in order to meet the needs of involved parties.

The courts go beyond considering the parties’ needs when determining such cases. They do not always aim to attain equality. A personal injury award can be made to a single party. In such cases, the award is not based on the parties’ need but the court has to consider other factors such as how long the marriage has lasted.

Courts also have to consider the amount of assets available in relation to what the parties needs if they decide to depart from equality. It assets are limited; a court can apply the discretionary percentage strategy to ensure the parties’ needs are met.

In situations where the assets in question are not related to other assets, it is easy to value the damage, and there are no objections that the non-injured person party can claim the damages, a court can apply a two-stage approach.

While the approach applied in personal injury damage cases is generally similar to non-matrimonial property cases, there are some factors that only apply to the former. There may be situations where the amount of money that is awarded for damages is limited and is specifically offered because of the suffering and pain that an individual has suffered, making it unsuitable for a court to order a percentage of the sum to be paid out to the non-injured spouse.

However, the non-injured party can argue that the components of the injured party’s award should be shared. If part of the award is offered to compensate for the loss of future earnings, the non-injured party can claim they have a right to get a share of the award because they are also affected by the injured party’s inability to earn an income in future. The non-injured party should have a claim to certain elements of the injured party’s award. In this kind of case, a court can apply a discretionary percentage strategy to divide the parties’ assets.

It remains unclear how courts are to accept arguments that focus on particular elements of damage awards. This may be attributed to the fact that there are no case laws on this subject. However, a court can consider the purpose of the damage award to determine distribution. There are certain elements of an injured spouse’s award that directly reflect their needs such a need for care in the future. But courts have not addressed this factor when they determine an injured party’s need during financial remedy trials.

There are arguments that certain components of the damages need a different approach depending on the intended purpose of the award. But the courts are yet to accept these arguments.

About the Writer

benleedavis is a writer for BrooWaha. For more information, visit the writer's website.
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1 comments on Understanding the process behind a personal injury claim

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