Disability caused by a car accident should be considered a separate element of damages in a motor vehicle collision settlement claim. Physical disability is a permanent physical injury or permanent health condition resulting in impairment of any physical function. Some use the terms disability and permanent injury interchangeably, but it is clear that damages awarded for physical disability should be separate from damages for future pain and suffering and loss of earning capacity, and even loss of enjoyment of life. An accountant loses his leg in a railroad crossing accident may have no future loss of earnings or future pain and suffering, but he definitely has a disability and certainly a loss of enjoyment of life.
Permanent mental disability can also be the basis of a damages award. Wisconsin courts have awarded damages for diminished mental disability when tied to physical injuries, but the harm must be more than emotional distress, which is a different type of damage with different proof standards.
The lines defining either physical disability or mental disability certainly bleed over into pain and suffering and loss of enjoyment of life. Most likely an insurance company adjuster is not going to appreciate the distinctions and a trial judge in formulating jury instructions and a verdict form may be nonplussed as well.
Wisconsin civil jury instruction 1767 seems to combine disability with pain and suffering:
If you are satisfied that (plaintiff) will endure pain, suffering, (and) disability, (and disfigurement) in the future as a result of the accident, you will insert as your answer to this (question) (subdivision) the sum of money you find will fairly and reasonably compensate (plaintiff) for this future pain, suffering, (and) disability, (and disfigurement).
Pain, suffering, (and) disability, (and disfigurement) includes:
• physical pain
• worry
• distress
• embarrassment
• humiliation
In answering this damage question, you should consider the following factors:
• the extent (plaintiff)’s injuries have impaired and will impair (his) (her)
ability to enjoy the normal activities, pleasures, and benefits of life;
• the nature of (plaintiff)’s injuries;
• the effect the injuries are reasonably certain to produce in the future
bearing in mind (plaintiff)’s age, prior mental and physical condition, and
the probable duration of (his) (her) life.
Disability is the flip side of loss of enjoyment of life. Cutting the grass may be an unpleasant chore to most, but the inability to do it is a disability. On the other hand, if you’re one of the few that enjoy grass cutting, then it’s a loss of enjoyment of life damage.
McCormick Law Office in Milwaukee, Wisconsin views each case individually and include auto accident disability as a separate element of damages when appropriate. Believe in better.
