23 Mar 2022
Suppose you went out to a restaurant with a friend and ordered a drink. You later realize that the bottle from where the drink came from contained decomposing remains of a snail that was not initially visible. Unbeknownst to you or anybody else, you continue to drink from the bottle. As a result, you felt ill and suffered from nervous shock and gastroenteritis. Can you claim for personal injury? This is what Mrs. Donoghue had done in the landmark English case of Donoghue v Stevenson. It is documented as the first case to establish the law of negligence in the common law. The House of Lords held the judgment that the manufacturer of the drink owed a duty of care to her, which was breached because they had failed to ensure the safety of the product. It was reasonably foreseeable that a failure act would lead to harm to consumers. This case established the infamous ‘neighbor principle’ in the law of torts where it was stated that an individual must take reasonable care to avoid acts or omissions that are foreseeable to cause injury to your neighbor. In the simplest term, personal injury can be defined as an injury sustained by a person psychically, emotionally, or mentally due to an intentional or unintentional act of another person. A corporate entity can be liable for personal injury as well if they are found negligent. Every single person has a legal obligation to owe a standard duty of care to everyone around them. For example, property owners have a legal duty to keep their premises safe so that people on their property will not be injured. If the premise is not secure, then it is reasonably foreseeable that a person will get injured due to the property’s hazards. The case of Caparo v Dickman has provided a test to determine whether a duty of care is owed to an individual. The Court of Appeal has established a ‘three-fold test’ which must be met to have a successful claim:
- Harm must be reasonably foreseeable resulting from the guilty person’s conduct.
- The parties must be in a relationship of proximity.
- It is fair, just, and reasonable to impose a duty in all circumstances.
Victims will be entitled to claim for damages from the injuries sustained by another person’s negligent act. A victim can also claim emotional or psychological harm as a distinct form of injury. However, claiming a ‘psychiatric injury’ in tort has its own set of rules, which must be satisfied before a valid claim can be made. The Court divides claimants into two categories when determining a psychiatric injury claim:
- Primary victims – Those directly involved in shocking situations; and
- Secondary victims – Those who are not directly affected, however a close family member of theirs was injured or killed.
The Alcock test is used to determine who may qualify as a secondary victim to have a successful psychiatric injury claim. A person must satisfy all the criteria:
- Have a relationship of love and affection with the primary victim;
- Came across the immediate aftermath of the event;
- Have a direct perception of the harm to the primary victim; and
- Be of reasonable fortitude.
Personal Injury in UAE
Dubai has adopted a different approach regarding personal injury cases and the compensation that goes along with them. The victim may take legal assistance action and sue the negligent party; however, the courts shall set the amount of compensation. Personal injury claims are governed by Federal Law Number 5 of 1985, also known as the UAE Civil Code. Article 282 of the legislation has provided the scope of what the term “harm” means. 282 states that harm can mean any actions that constitute an unlawful act or an act prohibited by law. Although it is at the Judge’s discretion to decide what constitutes “harm.” Every person has a legal obligation not to cause harm, which is the basic standard of care. The article further states that there are elements of damage that must be proven by the claimant for the harmful act to be recognized by the Courts. The burden of proof lies within the victim to prove the elements; however, the Judge will decide whether a particular action constitutes harm. Article 292 stipulates that harm will be assessed on the amount of harm that is suffered by the claimant and makes the basis on what a claimant can seek damages for in regards to the loss of profits. The provision mentions that in order for the claimant to seek compensation for loss of profits, it must be proven that the loss of profits was in direct relation to the harm caused. Article 389 further supports the provision and mentions that the Court has the discretion to the amount of compensation to compensate the victim when harm is suffered. Furthermore, Article 293 provides that a claimant can be compensated concerning the profits lost and any moral harm that they suffered, which includes the infringement of their dignity or honor. In medical negligence cases, however, the claimant needs to prove beyond any reasonable doubt that the doctor involved was negligent in performing their duties, and it resulted in the claimant suffering from temporary or permanent damage.
Personal Injury damages that can be awarded in Dubai Courts
- Physical and material damages
Bodily injury is defined as anything that affects the health of a human being. Material damage, on the other hand, is the loss that the claimant suffered regarding a bodily injury. Both injuries can be awarded in Court. It is important to note that although psychical and material damages are closely linked, their compensation will differentiate. Once psychical damage is proven, it can be compensated even if the claimant has not suffered any material injury. This clause was established in Case No 186/2004, Dubai Court of Cassation. The right to protect one’s bodily integrity has been accepted and protected by any jurisdictions under the UAE law and is regarded as a fundamental and inalienable right.
- Moral Damages
Article 293 of the civil code has a moral harm clause, and it is a part of personal injury. Moral harm is the infringement of liberty, honor, dignity, reputation or social standing of another person, and it can be compensated for any damage resulting from psychological injury, as mentioned in Case No 48/1989, Dubai Court of Cassation.
- Loss of earnings
Article 292 recognizes the loss of profits as a part of the damages acquired. However, it is stated that the assessment of the loss of potential future earnings falls within the full discretion of the UAE Court. The Dubai Courts may be more generous and award compensation for loss of profits when examining whether the victim is the family’s sole provider. If a victim were to successfully claim loss of earnings, one must show that the loss of profits is reasonably justified.
- Loss of opportunity
While the loss of earnings necessarily involves the loss of money, loss of opportunity may affect both the loss of profits and the loss of opportunity. For example, cases held before the Dubai Courts often involved a loss that a parent suffers when their child cannot provide for them in the event of their child’s demise, such as seen in Case No 360/2009, Dubai Court of Cassation. In a lot of situations, loss of opportunity goes hand in hand with loss of earnings. The Courts will implement the same decision toward the loss of opportunity as they do toward the loss of earnings. The Court must be satisfied that the loss suffered is a reasonable justifiable cause.
- Potential future damages
Article 292 of the Civil Code contains no remedies in the provision regarding future damages. Potential future damages cannot simply be awarded unless there is proof. An example of this can be seen in a 2009 decision made by the Courts, where they refused to compensate the expenses incurred by a claimant in respect of continuous future treatment, as noted in Case No 78/2009, Dubai Court of Cassation. However, if a Claimant can prove that they have to undergo future treatments, then the Court may award compensation for future damages.
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