The study of legal history, or the history of law, is important because it allows one generation of attorneys to understand how a particular legal concept of doctrine developed in the broader historical context of an era whose body of law may have been quite different from how law is understood and practiced today. This short essay will review how the concepts of personal injury law developed from the common law of England and how modern core principles of those developments are applied in personal injury lawsuits.
The law as it exists today can be broadly divided into “statutory law,” which is law that is derived from a written body of statutes that have become law by a set process, and “case law,” which is law that is derived from previous decisions of the judicial system. Case law is sometimes referred to a precedent law. Although there is often some overlap in matters of statutory and case law, the two bodies of law are generally held to be separate.
Common law is based on the principle that some things are clearly unjust, such as taking another's cow without compensating the owner or serving food at a public tavern that was not properly cooked and caused its patrons to become ill. It then follows that if the law provides for a system to compensate the injured parties, then the law should be equally applied in all factually-similar cases. Restated, this is the famous doctrine that “All are equal before the law.” In the English Common Law, the method adopted to insure that all similar cases are uniformly decided is the reliance on previous decisions of the legal system to guide, or “set a precedent,” for other courts to follow. The use of legal precedents to apply the law has not always been the case.
The discovery of the New World led to the “exportation” of European law to each newly-established colony. At the time, and with the exception of England, European law was based on Canon Law, the laws that governed the Roman Church. Since the Roman Church relied on both the monarchy and the aristocracy as its source of power, the European laws were usually “applied as they went along” and practically always in favor of the rich over the poor. This was not the case with England, which had an established system of common law in place when it emerged as a world power beginning in the 16th Century. As a consequence of colonization, English common law became the basis for the entire body of law in countries such as Canada and the United States.
Under the principles of English common law, the law related to personal injury as we understand it today evolved from the doctrine of “res ipsa locquitur” (Latin, “the thing itself speaks”). Under res ipsa locquitur, it is assumed that some things simply do not happen in the day-to-day world and, given the fact that something out of the ordinary did happen, then someone must have been responsible for that event. The classic examples used to illustrate the doctrine of res ipsa locquitur are the beer barrel rolling down the street and the surgical sponge found in someone's abdomen.
Let us imagine a beer barrel that is seen to be rolling down a street before crashing through the local blacksmith's shop. Since there are no known cases of beer barrels that spontaneously appear in the streets before trashing the blacksmith's shop, res locquitur argues that the event itself is sufficient to prove that a mortal hand entered the picture at some point. By the same token, since surgical sponges do not simply appear in a patient's abdomen, res ipsa locquitur hods that its mere presence is sufficient to prove that a surgeon must have mistakenly left the sponge behind.
Res ipsa locquitur eventually evolved into a distinct legal philosophy that is, at least indirectly, important in the history of personal injury lawsuits. Roughly summarized, these principles are:
1) Any person has a duty to conduct his affairs in a reasonable manner that will not subject another person to a risk of personal or financial injury.
2) A “breach” of this duty occurs when someone acts unreasonably and, thus, subjects another to an injury that is a consequence of the “unreasonable” action
3) “But for” this breach of duty, the injury would not have occurred (remember the beer barrel or the sponge)
4) The injury was a real, documented, injury and did not involve fault on the part of the injured party.
From the 17th Century onward, common law has recognized the legal right of an injured party to receive a “reasonable compensation” for injuries received. Initially, these damages were awarded for “real injuries” only, meaning those losses that were directly and physically related to the injury itself. In other words, a victim could be awarded money for medical expenses arising from an injury but not for “pain and suffering.” Although compensation for non-physical injury began to emerge in the American courts of the mid to late 19th Century, such awards did not become common until well into the 20th Century.
The “American Industrial Revolution” of late 19th and early Twentieth Centuries saw the first real merging of statutory and personal injury law with the passage of laws that, in addition to regulating interstate commerce, set for the the first laws that were created to protect the individual against the excesses of the corporate world. As examples, laws were passed that allowed corporations to be sued for damages in any state where they did business rather than only in their “home” states where they usually enjoyed “friendly” judges and juries. In the field of personal injury law, this meant that plaintiffs could now expect at least a fair hearing of their cases. These laws would eventually evolve into the concepts of Workmans Compensation and long-term disability law.
In conclusion, personal injury law is founded upon a rich historical background that is rooted in the English Common Law as well as in modern statutory law that was initially enacted to control the excesses of larger corporations. Although personal injury law continues to evolve, an understanding of its historical background is both fascinating as well as instructive.
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