THE INJURY VICTIM'S GUIDE TO VALUING PAIN AND SUFFERING
This guide is intended for British Columbians injured in car accidents and other events for which they are not at fault.
Pain and suffering is only one part of a claim for losses due to injury. Many injuries can result in claims for items such as past and future loss of income, loss of opportunity, cost of treatment, and out-of-pocket expenses. These losses can be substantial, regardless of the value of pain and suffering. However, there are cases were pain and suffering is the only substantial loss to be claimed.
Pain and suffering is part of an overall claim for “non-pecuniary damages”. Because non-pecuniary damages are intangible, money awards are meant to make up for what has been lost while accepting that what has been lost is incapable of being replaced in any direct way. As The Supreme Court of Canada stated, “…The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one.”
A claim for non-pecuniary damages includes factors such as pain and suffering, loss of amenities, loss of enjoyment and loss of expectation of life.
MAXIMUM AND MINIMUM AWARDS FOR PAIN AND SUFFERING
In Canada awards for non-pecuniary damages, since 1978, have been effectively limited to $100, 000. This amount has been inflated over time in accordance with the consumer price index. As of 2005 the maximum cap on claims for non-pecuniary damages is approximately $300, 000.00.
The maximum was set by the Supreme Court of Canada and it is conceivable that future decisions by the Supreme Court could vary or even eliminate the maximum.
The upper limited is reserved for cases which include permanently painful and disabling conditions such as severe brain damage.
If pain and suffering is proven to the satisfaction of the court a money award must be provided to the claimant.
If a claimant is at fault for the injury then pain and suffering cannot be claimed. If the court finds the claimant partly at fault then the claimant is only entitled compensation for the percentage fault of the other party.
To arrive at the appropriate money award judges look at prior cases with similar injuries, impairments and disabilities. For juries, they are asked to use their own judgment in arriving at a fair and reasonable amount for pain and suffering, without the benefit of prior cases. The result is that each award is decided on its own merits according to the evidence accepted by the court.
Understanding medical and legal issues is important to assessing most personal injury cases. The diagnosis, prognosis and treatment can affect the award for pain and suffering.
Legal advice should always be obtained before settling any case. It is often most helpful to have your own lawyer hired as soon after the injury as possible. This allows the lawyer to provide all the important knowledge and assistance before mistakes are made or evidence is overlooked. If a case is too small or is not worth hiring a lawyer, the lawyer will usually be the first one to point this out.
The benefit to having your own lawyer will often outweigh the perils and dangers of trying to prosecute your own case. Call us now for a FREE CONSULTATION.