In this blog, the last in our series, we’ll look at what we mean by “actual loss” in a personal injury claim based on negligence. In earlier blogs, we addressed the standard of care, as well as the requirement that a causal link be established.
The purpose of a personal injury lawsuit is to try to put the injured party as close to the position they were in before the accident. Accordingly, most damages that are available are what are known as “compensatory” damages, designed to compensate or reimburse the injured party for past, present or future losses.
Therefore, even if you can show that the defendant failed to act as a reasonable person, and that the failure caused an accident, you won’t be able to recover pecuniary damages if you can’t show that you incurred any expense, suffered any physical injury or experienced any diminution in the value of any property. For example, assume that you are at a stop light and the person pulling up behind you slows down, but just lightly taps the rear of your car. You never seek medical treatment, you can’t find a mark on your car and you never pay a penny for anything related to the accident. There was clearly a breach of the standard of care and there was a collision. But there were no actual losses.
Another instance where you can’t claim actual losses is where personal injury or property damage are paid for by insurance. Under the law, you can’t recover twice for the same loss. If your insurance company pays for any medical expenses, they may have a claim to recover them, but you won’t.