Understanding Insurance Disputes And Their Terms
You should never need to feel unsure about your case or the law. Our attorneys at Reinig, Barber & Henry are dedicated to helping you feel informed and involved — every step of the way. The terms below and our FAQ page are helpful resources while you consider your personal injury case. Our team is always available to answer questions during a free consultation.
The general test of liability, or someone being responsible for an action, requires the plaintiff/claimant to prove that:
- The defendant owed a duty of care to the plaintiff
- The defendant breached that duty of care
- This breach caused a loss or damage to the plaintiff
- The defendant should compensate the plaintiff for that loss or damage
Damages place a monetary value on the harm done and seek to place the injured party in the condition they would have been had the wrong not occurred.
Duty Of Care
A person owes a ‘duty of care’ to another when a reasonable person believes there will be a risk of injury if these particular actions are continued. This can also apply if a particular action, such as surgery, is not done.
An example of this is a car driver. A reasonable person tends to believe the driver owes a reasonable duty of care to all other drivers.
Breach Of Duty
Once it is established that the defendant owed a duty to the plaintiff, the second question is whether the duty was breached. This can happen in two ways:
- Intentionally: If the defendant actually realized that the plaintiff was being put at risk, taking the decision to continue that exposure to the risk of injury may result in a breach of that duty.
- Accidentally: If the defendant did not actually foresee that another might be put at risk, but a reasonable person in the same situation would have foreseen the possibility that another might be injured, there will be a breach of that duty.
For the defendant to be held liable for monetary damages, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained.
Inquiries into this include:
- Was the defendant the actual cause of injuries sustained by the plaintiff? (A “but for” test is usually employed)
- Was the defendant the “but for” cause of the resulting injury or damage?
- Once a breach of duty of care has been established, and it is determined that the plaintiff was the “but for” cause of the damage to the plaintiff, the question will be whether a defendant should be liable for all the loss or damage flowing naturally from that breach.
In many instances, the resulting injury may lead to hospital bills, job loss and loss of enjoyment of life. With help from an attorney, the plaintiff will have to prove that the injury caused by the defendant proximately caused all of the resulting damages (i.e., Did the automobile accident lead to the shoulder avascular necrosis or was it caused by a pre-existing condition?).
The plaintiff must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. Damages must be proven without speculation and may include loss for physical injury, lost wages, hospital bills, pain and suffering, loss of consortium, future wage loss, etc.