By Cather­ine Ram­nar­ine

You may have heard of the in­fa­mous Amer­i­can “hot cof­fee” law­suit. A cus­tomer of a fast food chain placed a cof­fee cup be­tween her legs while she tried to re­move the lid. The cup spilled and hot cof­fee ran in­to her lap, burn­ing her skin. She sued and a ju­ry award­ed her al­most US$3 mil­lion in dam­ages. Many have held up this case as an ex­am­ple of friv­o­lous lit­i­ga­tion and com­pen­sa­tion cul­ture run amok. But, does it re­al­ly paint a re­al­is­tic pic­ture of the type of award that a claimant in a per­son­al in­jury claim can ex­pect to re­ceive? What con­sid­er­a­tions fac­tored in­to that US$3 mil­lion award?

In this ar­ti­cle, we will ex­plain the prin­ci­ples gov­ern­ing the as­sess­ment of dam­ages in per­son­al in­jury claims.

What is a ‘per­son­al in­jury’ claim?

A per­son­al in­jury claim is a civ­il ac­tion against an in­di­vid­ual or en­ti­ty (the de­fen­dant) for caus­ing harm to an­oth­er (the claimant) through neg­li­gence or in­ten­tion­al wrong­do­ing.

What are ‘dam­ages’?

The term ‘dam­ages’ refers to the amount of mon­ey award­ed by a Court in or­der to com­pen­sate a claimant who has suf­fered in­jury or loss as a re­sult of a wrong for which a de­fen­dant is re­spon­si­ble.

‘Com­pen­sato­ry’ vs ‘ex­em­plary’ dam­ages

As a gen­er­al rule, dam­ages in per­son­al in­jury cas­es are ‘com­pen­sato­ry’. They aim to com­pen­sate the claimant for the ac­tu­al in­juries or loss­es that they sus­tained, or put an­oth­er way, to put them (as best as pos­si­ble) in the same po­si­tion that they would have been had they not suf­fered the in­jury or loss, but no more than that.

By con­trast, ‘ex­em­plary’ or ‘puni­tive’ dam­ages are award­ed to pun­ish a de­fen­dant for their bad be­hav­iour or to act as a de­ter­rent against sim­i­lar be­hav­iour.

In the hot cof­fee law­suit, com­pen­sato­ry dam­ages rep­re­sent­ed on­ly a small frac­tion of the to­tal amount award­ed to the claimant. Those com­pen­sato­ry dam­ages in­clud­ed re­im­burse­ment for med­ical bills, as well as com­pen­sa­tion for pain and suf­fer­ing and the last­ing im­pact that her in­juries would con­tin­ue to have on her every­day life go­ing for­ward. The vast ma­jor­i­ty of the award, US$2.7 mil­lion, rep­re­sent­ed puni­tive dam­ages. Those dam­ages were in­tend­ed to pun­ish the de­fen­dant for what the ju­ry be­lieved to be its bad be­hav­iour, serv­ing cof­fee at tem­per­a­tures like­ly to cause third de­gree burns af­ter on­ly a few sec­onds of con­tact.

Would a Court in T&T have made a sim­i­lar award?

There are some key dif­fer­ences be­tween per­son­al in­jury lit­i­ga­tion in Amer­i­ca, and per­son­al in­jury lit­i­ga­tion in this coun­try. First­ly, in T&T, per­son­al in­jury claims are de­cid­ed by a judge, with­out any ju­ry in­volve­ment. Sec­ond­ly, the cir­cum­stances in which ex­em­plary or puni­tive dam­ages can be award­ed in per­son­al in­jury claims is very lim­it­ed. Such dam­ages will usu­al­ly on­ly be award­ed:

* Where there is op­pres­sive, ar­bi­trary or un­con­sti­tu­tion­al con­duct by ser­vants of gov­ern­ment;

* Where the de­fen­dant’s con­duct had been cal­cu­lat­ed to make a prof­it for him­self, which may well ex­ceed the com­pen­sa­tion payable to an in­no­cent par­ty; or

* Where it was statu­to­ri­ly au­tho­rised.

For these rea­sons, per­son­al in­jury claimants are far more like­ly to be award­ed ex­em­plary dam­ages where the de­fen­dant is an or­gan or ser­vant of the state, such as a prison of­fi­cer who us­es ex­ces­sive force on an in­mate. Even then, such awards are quite mod­est rel­a­tive to the award made in the hot cof­fee case.

Heads of Dam­age

What types of loss or in­jury are el­i­gi­ble for com­pen­sato­ry dam­ages?

Dam­ages in per­son­al in­jury claims gen­er­al­ly fall with­in two cat­e­gories.

‘Gen­er­al dam­ages’ are com­pen­sa­tion for the non-mon­e­tary as­pects of the harm suf­fered. Com­mon­ly called ‘pain, suf­fer­ing and loss of ameni­ty’ these dam­ages are in­tend­ed to com­pen­sate a claimant for the phys­i­cal pain that an in­jury might have caused them, as well as any long term im­pair­ment or dis­able­ment. For ex­am­ple, an in­jury might leave a claimant un­able to func­tion in the same way that they pre­vi­ous­ly did, or to par­tic­i­pate in sports or oth­er recre­ation­al ac­tiv­i­ties that they pre­vi­ous­ly en­joyed.

‘Spe­cial dam­ages’ are com­pen­sa­tion for the quan­tifi­able mon­e­tary loss­es suf­fered as a re­sult of the de­fen­dant’s act or omis­sion. For ex­am­ple, med­ical bills or lost in­come where an in­jury pre­vents a claimant from work­ing.

Cau­sa­tion and Ev­i­dence

It is im­por­tant to re­mem­ber that the mere fact that a claimant was in­jured does not au­to­mat­i­cal­ly en­ti­tle them to dam­ages.

A claimant is on­ly en­ti­tled to dam­ages for in­jury or loss sus­tained as a re­sult of a wrong for which a de­fen­dant is re­spon­si­ble. This means that that the claimant must prove that the de­fen­dant com­mit­ted a wrong, and that that wrong ac­tu­al­ly caused the claimant’s in­jury. While this might seem straight­for­ward in the­o­ry, in prac­tice it can of­ten be much more com­pli­cat­ed, lead­ing to com­plex and ex­pen­sive lit­i­ga­tion and re­quir­ing the in­put of med­ical and oth­er ex­perts. For ex­am­ple, there are sit­u­a­tions in which a claimant might be found to be ful­ly or par­tial­ly re­spon­si­ble for their own in­jury or loss. Even in the ‘hot cof­fee case, the claimant’s dam­ages were re­duced by 20 per cent be­cause the ju­ry found that she had con­tributed to her in­jury by her own ac­tions.

Ad­di­tion­al­ly, as a gen­er­al rule, dam­ages will on­ly be award­ed if the claimant sub­mits ev­i­dence prov­ing their in­jury or loss. It is not enough for a claimant to say that they had med­ical ex­pens­es, they must pro­vide the Court with re­ceipts or oth­er proof of the sums they spent.

De­spite what head­lines or le­gal tele­vi­sion dra­mas might some­times sug­gest, a per­son­al in­jury claim is not a win­ning lot­tery tick­et or a road to rich­es. A claimant who has suf­fered gen­uine loss or in­jury as a re­sult of a de­fen­dant’s wrong is en­ti­tled to be fair­ly com­pen­sat­ed. How­ev­er, the lev­el of that com­pen­sa­tion is sub­ject to le­gal guide­lines and can some­times on­ly be de­ter­mined af­ter com­plex and cost­ly lit­i­ga­tion. Even in the hot cof­fee case, the claimant nev­er ac­tu­al­ly re­ceived US$3 mil­lion. The judge re­duced the ju­ry’s award to US$650,000, both par­ties ap­pealed his de­ci­sion and the mat­ter was ul­ti­mate­ly set­tled out of court for an undis­closed amount.

Cather­ine Ram­nar­ine is a Part­ner at M. Hamel-Smith & Co. She can be reached at mhs@trinidad­law.com. Dis­claimer: This col­umn con­tains gen­er­al in­for­ma­tion on le­gal top­ics and does not con­sti­tute le­gal ad­vice.