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THE THREE ELEMENTS OF A PERSONAL INJURY CLAIM

by John L. Aris

A personal injury claim has three required elements. A lawyer must show all three elements are present in order to win a judge or jury award. Without these elements, the claim will ultimately fail. Similarly, an insurance claims adjustor will evaluate these three elements in deciding whether to offer money to settle and if so, how much.

These elements are:

1- Liability (usually negligence)
2 - Causation
3 -Damages


1. Negligence

Negligence is defined as "the failure to do something that a reasonably careful person would do, or doing something that a reasonably careful person would not do, in light of all the surrounding circumstances."

A typical example is when a person in a vehicle gets hit from behind by a person driving another vehicle. The person who caused the collision is almost always considered negligent just because he hit the vehicle in front of him. This is because the law requires that any driver must keep an "assured clear distance" between his vehicle and the vehicle in front of him, so that even if the vehicle in front of him stops unexpectedly, he can still stop his vehicle in time to avoid hitting that other vehicle. Hitting that other vehicle is not acting as a "reasonably careful" driver would.

2. Causation

It is not enough to show that the other person was negligent. You must also show that the negligence was the cause of injury.

For example, if a person drove his car down the street with his eyes closed, he was negligent. However, if he did not damage anyone his negligence was not the legal cause of any harm.

Another aspect of causation is that one cannot make a claim for an injury unless one can show that the injury suffered was caused by the negligence of the other person. For instance, you could be involved in an automobile collision, from which neck and back injuries are common, and it is likely that if you suffered that kind of injury, your doctor would say that the injuries were caused by the collision. However, you might also be diagnosed with lung cancer shortly after the collision. A doctor would not be able to connect the lung cancer with the collision.

3. Damages

The third element is damages. You must show that the negligence caused actual damages, such as "pain and suffering", loss of life's pleasures (participating in sports, home activities, social activities), medical expenses, lost wages, etc. This third item is what a judge, jury or insurance claims adjuster evaluates when deciding how much to award a person making a personal injury claim.