The difference between “ACTUAL” damages and “PUNITIVE” damages
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McKnight Law Firm - Personal Injury

The Difference Between “Actual” Damages and “Punitive” Damages in Automobile, Trucking and Pedestrian Injury Cases

Actual Damages

Actual damages are also referred to as “compensatory damages,” which have the sole purpose of compensating a person for the harms and losses suffered from an auto, trucking, or pedestrian roadway collision. Actual damages may include the following:

Medical Expenses Caused by the Collision

  • Lost Wages Due to Physical and/or Mental Injuries and Restrictions
  • Pain and Suffering
  • Loss of Enjoyment of Life
  • Alteration of Lifestyle
  • Permanent Injuries, Including Permanent Scarring
  • Aggravation/Exacerbation of a Pre-Existing Condition
  • Mental Anguish
  • Property Damages and/or Total Loss; and Depreciated Value of Damaged and Repaired Vehicle

Some actual damages amounts are capable of mathematical certainty, such as causally related medical expenses, lost wages and property damage, property loss, and property value depreciation. Other elements of actual damages are not capable of mathematical certainty, so the fact finder at trial, either a judge or jury, must place a value on those intangible actual damage elements, based on the testimonial and document evidence presented at trial. Every person’s injury experience differs, based on their particular injury and lifestyle losses.

When a doctor testifies that a person has suffered a permanent injury, something that will be with the person for the rest of their life, the court uses the South Carolina Life Expectancy Table, S.C. Code Annotated, section 19-1-150, to determine how long a person of a particular age will be expected to live, to aid the judge or jury in determining the value of that permanent injury. It can also be helpful to have a treating physician evaluate the injured person to determine the percentage of permanent medical impairment. The American Medical Association, Guide to the

Evaluation of Permanent Impairment (5th and 6th Editions), assists physicians in assigning percentages of medical impairment to permanently injured body parts and/or systems.

Mental anguish can flow from serious, permanent injuries. People become anxious and sometimes clinically depressed when they can no longer do the things they did prior to the automobile, trucking or pedestrian collision. Again, everyone’s story is different; so it is within the province of the judge or jury to place a monetary value on the extent of a person’s mental anguish caused by an incident.

Late model vehicles, even when completely repaired, suffer a loss of value, due to being damaged in a wreck. So when there is a fairly late model vehicle involved in a collision, an expert should evaluate the vehicle for market value depreciation, and testify to the same at trial, if the issue is not resolved by way of settlement.

When repair costs on a vehicle exceed 75% to 80% of the value of a vehicle, that vehicle is considered a total loss; and the owner is entitled to the fair market value of the vehicle as of the date of the collision.

Punitive Damages

Punitive Damages are awarded when an individual (most auto cases), or person working for a company (most trucking cases), causes the wreck due to reckless or intentional bad conduct. The primary purpose of punitive damages is to punish the wrongdoer for bad behavior, which acts as a specific deterrent to that person (or corporation), doing it again. The secondary purpose is that of general deterrence, to send a message to persons and corporations in the community, that bad behavior will not be tolerated, so that in general, persons and corporations are deterred from similar behavior.

Recklessness is defined under the common law as the “conscious disregard for the safety of others.” A violation of highway safety rule such as failure to yield the right of way, following too closely, speeding, or any other violation of a statute that causes an automobile, trucking, or pedestrian collision, is evidence of recklessness; so the judge or jury must determine first, whether the violation of a particular statute rises to the level of either being a conscious disregard for the safety of others or intentional conduct.

Punitive damages must be proved by “clear and convincing” evidence. This legal standard of proof is higher than proving actual damages, which requires proof by a “preponderance of the evidence” (i.e. is it more likely than not that the actual damage was caused by the incident).

When a person is driving drunk and causes a wreck, our law firm asks for punitive damages; when a trucking company or truck driver violates state and federal trucking regulations, such as limitations on driving time, failure to maintain brakes or other safety systems etc…, we seek punitive damages in both in the valuation of settlements, or at trial, if the case does not settle. With people, it is usually just reckless or bad intentional conduct. With corporations, we go deeper, and look into systemic issues to show that the corporation preferred profit over safety.