Posted January 1, 2021 - phillipgilbertlaw.com
What exactly is a “personal injury” claim, you may ask. Generally speaking, a personal injury claim is a claim wherein someone seeks reasonable compensation (in the American legal system, the types of compensation that can be recovered are referred to as “damages”) for injury to their body and/or to their mind (i.e. psychological injuries and conditions, such as post traumatic stress disorder, anxiety, depression, etc.), which injuries are caused by the tortious1 actions of someone else. Well known examples of such a claim would include claims for injuries caused in a car accident or truck accident, and slip-and-fall or trip-and-falls claims caused by someone’s negligent maintenance of their property.
The history of personal injury law is interesting, and dates back thousands of years.
Many identify Hammurabi’s2 Code of 1780 BC as the genesis of modern personal injury law. In his Code, Hammurabi established what is now referred to as the “Law of Retaliation,” (Latin translation: lex talionis) also known as the law of “an eye for an eye.” The underlying principles arose from Babylonian Law which recognized that in society without any “rule of law,” if a person was hurt, then the injured person (or their relative) would take vengeful retribution on the person who caused the injury. The retribution might be worse than the crime, perhaps even death. Babylonian law put a limit on such actions by prohibiting the retribution from being more severe than the crime (as long as victim and offender occupied the same status in society).
The same “eye for an eye” retributive law principles are also advanced in The Old Testament, in Exodus 21: 22-25: “(22) If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. (23) And if any mischief follow, then thou shalt give life for life, (24) Eye for eye, tooth for tooth, hand for hand, foot for foot, (25) Burning for burning, wound for wound, stripe for stripe.”
Retributive justice (“Qisas”) is also approved of in the Islamic Qur’an3, 2:178: “O you who have believed, prescribed for you is legal retribution for those murdered – the free for the free, the slave for the slave, and the female for the female. But whoever overlooks from his brother anything, then there should be a suitable follow-up and payment to him with good conduct. This is an alleviation from your Lord and a mercy. But whoever transgresses after that will have a painful punishment.”
Chronologically, the next significant development in the law, according to many scholars, was the development of formal legal systems in Europe. By the late 1400s, Europe effectively had two systems of law. The majority nations in that continent were ruled by Canon Law, which was closely linked to the Roman Catholic Church. This system of law relied on the church and on monarchies to establish rules and laws, so often rulings favored the wealthy and powerful. In England, however, “Common Law” prevailed. In this type of law, precedents and past rulings determined legal issues. The courts had the power to interpret and apply law. As a result, laws and legal texts tended to be longer than in Canon Law. And, since legislators were not the ones interpreting the laws, the system was, in theory, more equitable for those who were not part of the ruling classes.
Of course, as with anything, the English “Common Law” system evolved with the passage of time. The 1600’s, in particular, were important for establishing an important principle in English Common Law known as res ipsa loquitur, which, translated from the Latin, means “the thing itself speaks.” This legal principle embodies the concept that some things do not happen as a natural occurrence (happen only due to the actions or omissions of someone) , and thus if they do occur, someone must be responsible4. As well, by the 1600’s, plaintiffs bringing a claim under English Common Law who had suffered income loss because of someone’s actions could also be awarded compensation for these losses by a court.
One important English court case warrants mention in a discussion of the history of personal injury law. The case is Donoghue v. Stevenson5. In that 1932 case, the plaintiff brought a claim seeking compensation for having become ill after drinking a bottle of ginger beer that contained the remains of a decomposed snail. The House of Lords held that the defendant manufacturer owed a “duty of care” to the plaintiff, which duty had been breached, because it was reasonably foreseeable that failure to ensure the product’s safety on the part of the defendant product manufacturer would lead to harm to consumers, such a the plaintiff. Importantly, prior to this court decision liability for personal injury depended upon showing physical damage that had been directly inflicted by the defendant. The Donoghue decision created a new type of liability in the law, moving from strict liability based upon direct physical contact to a fault-based system which only required injury.
Our American civil justice system, including with reference to personal injury claims specifically, is, in significant part, based on the English “Common Law” system.
1 The legal term “tort” refers to numerous types of claims or “causes of actions,” such as claims for negligence (i.e. injury claims arising from car accidents, truck accidents, pedestrian accidents, etc); claims for assault (a type of an “intentional” tort); and claims for “strict liability” (often a legal theory available for injuries resulting from a defective product).
2 Hammurabi was the sixth king of the First Babylonian dynasty of the Amorite tribe, reigning from circa 1792 BC to circa 1750 BC.
3 Written between 610 AD and 632 AD.
4 For example, if an auto accident occurs, this is clearly not a case of spontaneous or natural occurrence; meaning that someone must have caused the accident.
5  UKHL 100