Compensation for personal injury in Jamaica is based on awards being made for special and general damages. In the case of general damages, the amount of compensation is based on local precedents, which are lower than those in high cost countries. Thus, a foreigner who lives in a high cost jurisdiction will get less monetary damages. Special damages are awarded as proved. In sum, foreigners from high cost jurisdictions are at a disadvantage in the amount general damages that they may receive.
Introduction
Jamaica is undoubtedly one of the premier tourist destinations in the world and boasts approximately two million visitors each year soaking up the beach, fun, reggae, and sun to name a few attractions. Things can and do go wrong including personal injury and very rare cases of death. In the realm of tort, the innocent victim, as well as the victim who is partly to be blamed for his accident and injury, is almost always entitled to compensation. Understandably, the injured foreign party is accustomed to a set of legal rules in his homeland and, arguably, looks to those rules to apply in his claim or litigation process. This is particularly true with regards to the level or amount of compensation.
Unfortunately, these rules and customs do not apply. It is in this light that we seek to share some of the features of the Jamaican personal injury legal regime. In a nut shell, the proprietor or person in control of the property on which or through which you sustain your injury owes you a duty of care. This is a universal rule of law. The owner of the property or the instrumentality of the person operating the property must be at fault or acted without care and brought about the injury. Next, the injury caused you to suffer a loss, which may entitle you to compensable damages. Put another way, there must be duty, from which there was a breach, causing loss, and such loss is compensable.
General Damages
Damages are either general or special. General damages are those relating to pain, suffering, and loss of amenities or enjoyment of your ordinary way of life, and impairment in the work place or handicaps. Typically, the visitor breaks a bone or suffers lacerations to the body. Of course, there is the issue of psychiatric and or psychological discomforts arising from the incident. Unfortunately, these last sub-heads are assessed at relatively low or small monetary values. Further, the courts have looked to the measure of happiness of the claimant or plaintiff before the incident.
The courts in Jamaica have made general damages awards based on the type and severity of the injury, nature and extent of the injuries sustained, the nature and gravity of the resulting physical disability, pain and suffering, loss of amenities, and the extent to which one’s earning capacity is affected. In the same vein, claims are settled based on the pattern of these awards. And, these are not comparable to those that may be granted in the United States of America or Canada.
Nevertheless, these awards are fairly constant in size and there are very little surprises in these awards or settlements. One thing is certain, the figures are locally derived and the courts do not take into the account the residence or domicile of the claimant or injured party or plaintiff. Locals and foreigners are treated alike.
Special Damages
In the realm of special damages, the court and arbitrators alike are duty bound to compensate you for actual and proved losses. In brief, you are generally entitled to what may be in “your boat”. And, these must be proved to the satisfaction of the court or finder of fact or arbitrator. Some examples of special damages are the cost of your ruined vacation, medical expenses, special devices and appliances, lost personal property stemming from the incident, and wages or salary.
Costs
In Jamaica, the winning party is generally entitled to recover the costs associated with the claim including reasonable fees paid to an attorney whether paid out of pocket or under the terms of a contingent or conditional fee agreement.
Litigation Time - Frame
The time period in which most personal injury cases are resolved is painfully slow because of the structure of the civil legal system. Cases with damages of less than JM$250,000.00 must be brought in the resident magistrate court system, which is roughly equal to a county court in the US and England and Wales. Cases in which the claim exceeds the magistrates’ jurisdictional limit must be filed in the Supreme Court, which is the equivalent of the High Court in England and Wales and superior courts in the US. These structural features of the legal system viewed against the background of a rapidly growing population and a relatively small judiciary have been blamed for the chronic backlog of cases, including personal injury matters, in the system.
Attorney Fees
The attorney may advance the expenses associated with your case and will insists on being reimbursed once judgement of the court is collected or the settled sum is paid over. These expenses are variable and are usually associated with actions or steps taken to prove your case. Typically, we are dealing with courier services, medical consultations, opinions rendered by an expert to prove an essential element of your case. One must be guided by the principle that an item of evidence that may appear ordinary may not be so ordinary to the other side or defendant or even the court hence it must be proved by an expert. Thus, the expenses that you may be faced with are undeterminable at the outset. In the circumstances, you should be willing to trust the judgement of your legal team.
Equally, it is not reasonable to ask for an advanced itemization of out-of- pocket expenses. Nevertheless, these expenses are recoverable from the losing party. And, it would not be unreasonable to insist of a monthly report of expenses that may be incurred.
Regarding the amount paid under a contingent or conditional fee agreement, it is fair to say that attorneys charge one third of the award or settlement. This percentage is consistent with the amount being charged by attorneys in the USA, Canada or the UK. It is common to pay a lower amount for cases that are settled and a slightly higher amount for ones that go to trial. As always, one cannot say how a case will end because there are too many factors.
Conclusion
In sum, personal injury actions are based on the same legal philosophies but an award or settlement for general damages are locally derived whilst special damages and special legal concepts are unique to the claimant and must be proved. In case of special concepts or principles, they must be proved to be applicable and deserving. It is difficult to estimate expenses. Your case should be undertaken under the terms of a written agreement. Most importantly, you must trust your legal advisor or counsel to prosecute your case for an optimal award or settlement.
