The Requirement of Actual Loss

In the first two blogs in this series, we looked at the elements of a personal injury claimed based on negligence and went into greater detail about the first two: the breach of the duty of care, and the demonstration of a causal link between the breach and the accident. However, you can successfully prove that the defendant failed to act as a reasonable person would, prove that the failure caused an accident (in which you were involved), but still fail to recover any monetary compensation, if you are unable to show that you suffered any actual loss.

What Is Actual Loss?

The purpose of most damage awards is to compensate the injured party for any losses suffered, an attempt to put them back in the position they were in before the accident. That necessarily requires that the party seeking compensation be in a different position that before the accident. That may involve the loss of property, the payment of medical expenses, the loss of wages, or the physical pain and suffering of the injured person. But what if you haven’t actually incurred any type of loss?

Let’s look at some examples:

• Suppose you were hurt in a car accident, but your health insurance company paid all your medical expenses (with no deductible). Because you didn’t have to pay them out of your own pocket or resources, you are not in a different position and cannot recover damages from the defendant for your medical expenses. That does not mean, however, that you can’t recover monetarily for pain and suffering or loss of enjoyment of life, if your injury prevents you from engaging in activities that you love.
• Suppose you were in a car accident, but the car you were driving had no fair market value (or its fair market value was not changed by the accident). If the value of the car is the same after the accident as before the accident, you haven’t suffered a loss (in the value of the car).