Legal Guide

What Constitutes “Pain and Suffering” in a Personal Injury Claim?

Although we all hope we’ll never be injured in a car accident or in an incident at work, statistics show it may be more likely than you’d think. Transport Canada’s National Collision Database reports that there were 10,322 serious injuries resulting from car crashes in 2016, while the most recent statistics from the Canadian Centre for Occupational Health and Safety reveal that there were 241,508 claims accepted (and potentially many more rejected) for lost time related to work injuries or illnesses.

If you do become injured in an accident for which another party is at fault, it may be advisable for you to work with a personal injury lawyer in Halifax in order to file a claim against the person(s) responsible. One reason for doing so is to conceivably receive damages to cover medical bills subsequent to your injury. Seeing as total Canadian healthcare expenditures were predicted to reach $253.5 billion (or $6,839 per person) in 2018, pursuing compensation from those whose negligence resulted in your injuries could ease your financial burden.

This may not be your only reason for filing a personal injury claim, however. You may also be seeking an award to cover lost wages if your injury has made it impossible for you to return to work. In some cases, it may be appropriate to seek damages for what’s known as “pain and suffering.” While this concept may not apply to every personal injury claim, it’s important to discuss this possibility with your attorney and determine whether it might be reasonable for you to pursue.

What is pain and suffering?

Legally speaking, there are two different types of pain and suffering: physical and mental or emotional. If you experience physical pain and suffering related to your injury, this could refer to the tangible aches and discomfort stemming from the harm you’ve endured or even the negative physical effects you might endure in the future. Mental or emotional pain and suffering could relate to the emotional distress, mental anguish, anxiety, stress, depression, shock, trauma, fear, or other negative feelings that have resulted from the accident and your injuries. This category can cover anything from lethargy or insomnia to post-traumatic stress disorder and sexual dysfunction.

How is pain and suffering determined?

Many accident victims experience emotions and mental health scenarios that could fall under this category. However, these effects can be a bit more difficult to prove in a court of law than a clear-cut physical injury. In order to prove pain and suffering, plaintiffs may need to provide medical treatment reports and bills, prescription and over-the-counter medication receipts, injury photos, documented logs of pain and missed activities, proof of lost wages, psychological treatment records, and more. Friends and family may also have to testify on your behalf to illustrate how your personality or quality of life has changed after your accident.

Making matters more complex is the fact that there is no standardized method of calculating the value of a given plaintiff’s pain and suffering. Some insurers may use complicated software platforms to determine the value of an individual’s pain and suffering, while others will use specific formulas to come up with a number. They might multiply the number of medical bills you have by a number assigned to the severity of your injuries or determine a daily cost of your pain and suffering and multiply that number by the number of days you have been injured. If the case goes to court (rather than being settled privately between the insurer, the plaintiff, and their legal representatives), a judge or jury might even take the plaintiff’s likeability and perceived trustworthiness into account when determining the value of their pain and suffering.

It’s important to note that injuries defined as “minor” have, since 2003, come with a monetary value cap that limits how much you may be able to receive for pain and suffering. Injuries that have occurred after 2010 that involve soft tissue damages (like whiplash, strains, and sprains) can be considered “serious impairments” rather than “minor injuries” if they severely limit your ability to perform any and all essential employment, training, or educational duties, as well as normal daily tasks. Injuries not defined as “minor” do not have a government-imposed limitation on pain and suffering compensation in Canada.

When should you sue for pain and suffering?

There’s no definitive answer here, which is why it’s essential to consult with an experienced attorney on the particulars surrounding your case. However, if you have endured a severe injury that results in debilitating, long-term pain or it can be proven that the defendant’s behavior was negligent to the point of being outrageously dangerous (and it can be clearly linked to your emotional trauma and physical injuries), it’s fairly likely that your lawyer may advise you to include this component when filing your claim. In Canadian tort claims, only serious and permanent injuries will warrant significant pain and suffering damages. Your lawyer will be your best resource in deciding whether you should file a claim to recover a financial award for emotional/mental or physical pain and suffering.


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