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Personal injury

Legal term for an injury to a person

  • 15 min read
  • 7 chapters

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History

Historically, personal injury lawsuits in tort for monetary damages were virtually nonexistent before the Industrial Revolution of the 19th century. In agrarian, pre-industrial societies where most people did not travel far from home during their lifetimes, accidental bodily injuries inflicted by one stranger upon another were quite rare. When a grievous accident did occur, the culprit was usually a relative or close friend, and part of the same small local community. Most persons were judgment proof before the rise of the middle class and the invention of modern liability insurance.

At common law, a victim of a personal injury and others with a direct interest in the outcome of an action (e.g., the victim's spouse) were automatically disqualified from testifying about the injury or its consequences (because the victim's self-interest in recovery was seen as inevitably resulting in an unacceptably high risk of perjury). Finally, pre-industrial injuries lacked the sheer magnitude of force of modern personal injuries, because they were normally inflicted by humans or animals, not powerful machines.

Injury victims were not necessarily left with no remedies at all; in some respects, criminal justice back then was much more expansive than its modern counterpart. For example, if an animal inflicted a personal injury, the animal itself could be the subject of criminal prosecution.

Another obstacle was that if an injury was severe enough to kill the victim, the common law followed the maxim actio personalis moritur cum persona. This literally meant that the cause of action died with the victim. It was not until the 19th century that legislatures throughout the common law world began to remedy this grave injustice by enacting statutes (e.g., the Fatal Accidents Act 1846) allowing for post-death wrongful death claims. Similarly, from the 1840s to the 1890s, legislatures throughout the common law world began to also enact statutes overturning the witness disqualification rule (after which victims could directly testify to how they had been injured and had subsequently suffered).

On top of all these barriers, most admissions of fault made by an employee of the defendant were inadmissible under the hearsay rule unless they could come in under the narrow res gestae exception for admissions of fault that were contemporaneously made with the negligent act. The modern hearsay exception for party admissions had not yet been invented.

In common law jurisdictions before the 1850s, an injury had to fit into a very small category in order to serve as the basis of a legal action worth pursuing to a final verdict: the injury was serious enough to justify legal action, but not so severe as to kill the victim; the injury, its cause, and its consequences had all been witnessed by entirely disinterested third parties; the defendant was a stranger to the plaintiff, but one with recoverable money or assets within the boundaries of the jurisdiction; and the plaintiff was able to find competent counsel willing and able to pursue such a rare kind of legal action. Such cases were not primarily motivated by the victim's interest in seeking compensation for their own pain and suffering, but were brought based on economic injury to someone "who possessed rights in the life and services of an immediate victim." In other words, in the eighteenth century, "American and English personal injury cases appear to have been concerned primarily with actions for loss of services—namely, damages to a master resulting from injury to members of the master’s household."

Starting in the middle of the 19th century, personal injury lawsuits were filed after accidents on the new railroads. Edward Watkin of the South Eastern Railway (England) complained in 1881 that

The result of this compensating law under which the slightest neglect makes the company liable, and the only thing to be considered is the amount of damages—the effect of this unjust law is to create a new profession compounded of the worst elements of the present professions—viz., expert doctors, expert attorneys, and expert witnesses. You will get a doctor to swear that a man who has a slight knock on the head to say that he has a diseased spine, and will never be fit for anything again, and never be capable of being a man of business or the father of a family. The result of that is all we can do is to get some other expert to say exactly the contrary.

The personal injury lawsuit evolved from a rare sight to a commonplace occurrence during the Second Industrial Revolution at the end of the 19th century. For example, in 1870, tort lawsuits made up only 4.2 percent of the contested caseload of New York City trial courts, but by 1910, that number had skyrocketed to 40.9 percent. In 1880, there were only about a dozen horsecar personal injury lawsuits currently pending in Boston; by 1910, "there were over 800 personal injury cases involving streetcars in superior court, and 600 more in the municipal court".

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