Damages are a separate element of the causes of action in negligence and strict liability cases. With the trespassory intentional torts, general damages will be awarded once the jury finds that the intentional tort has been committed. In other words, damages are not a separate required element.

The amount of damages is a question of fact for the jury. Jurors are told that they are to compensate the injured to the extent possible, so as to place the person injured by the defendant into a position he or she would have been in had the defendant not injured him or her. To the common law, though money may never be a sufficient compensation, it is better than nothing at all, and theoretically substitutes for violence and provides for the peaceful resolution of disputes.

 

1. Economic Loss

A prominent element of economic loss is an award of lost wages. In general, the calculation of lost wages relies on the following variables: the person’s present wages and benefits, expected wage growth due to expected increase in job responsibility and promotion, years of work expectancy a subtraction for other employment in mitigation, a discounting to present value, and a determination of the tax effect on the award, if any.

A person’s wage can be difficult to determine. For example, if a ball player is injured just when he is about to sign a contract, past wages are not relevant to his reasonably expected wage. And how is the law to deal with children, who are permanently disabled or killed before they ever worked? One way is to use average wages of others similarly situated. Here, damages experts can consult national labor statistics for information about average wages, average wage growth, and averages work expectancies. There may be personal characteristics of the injured person that may reasonably affect these averages.

Again, figuring past medical expenses is also fairly easy, but determining future medical expenses requires predicting the future. Will continuing care be more or less expensive? What if a miracle cure is found? What incentives are there for the patient to try to get better, compensate for their injury and move on with life? How do you factor in all these uncertainties and come up with any reasonably accurate figure for future medical expenses? One way to handle the uncertainty of future damages is for the parties to enter into structured settlements. These agreements are contracts that provide payment for certain needs, if and when they arise.

Despite these difficulties, structured , or “periodic,” payments is the method of payment provided by worker’s compensation statues, because the conduct and health of the plaintiff can be effectively monitored by the worker’s compensation system of providing health benefits.

 

2. Non- Economic Loss: Pain and Suffering

One types of damage that is recoverable in personal injury case is for “pain and suffering.” Pain is the physical pain that plaintiff suffers from his injuries. Suffering is the psychological pain that plaintiff feels because of his condition.

The difficulty is that, unlike lost wages or medical expenses, few “pain and suffering” cases can truly be measured in dollar terms. Consider the prior problems in which one plaintiff suffered paralysis, another suffered facial disfiguration and a third suffered brain injury. All of these injuries may involve a great deal of pain. They may also impose psychological suffering on the plaintiff subjected to them.

 

3.     Loss of Consortium  （配偶的地位和权利）

Loss of consortium claims is wrapped  in the sexism of early English common law. And even as late as 1952,  in England, while a husband was allowed compensation for loss of society and sexual services of his wife, a wife was  not allowed compensation for the loss of her husband. The wife was treated like the man’s property or as a servant. The American cases, however, since the 1950s, universally vest the action  for loss of consortium in the wife as well as the husband.

The debate over the loss of consortium has now shifted to suits by children whose parents have been injured or killed. The leading case against providing for the loss of  a parent by a child is Borer v. American Airlines, Inc., where Justice Torbiner rejected the damage claims of the injured party’s nine children. More recently, a different perspective emerged in Villarreal v.. Arizona. The  Arizona rule allows parents to recover for  the loss of companionship of their adult children, even though the parents were not dependent upon those adult children for financial support. To the Arizona courts, the nature of the loss- companionship, love and support—required recovery without regard to the archaic pecuniary theory of parental rights.

 

4.     Punitive Damages

In recent years there has been a proliferation of claims for unitive damages in tort cases, and to some, the awards of punitive damages have grown too high. Accompany this increase in punitive damages claims is renewed criticism of the concept of punitive damages in a tort system that is designed primarily to compensate injured parties for harm. The result has been for states to exam