Assessing General Pain and Suffering Damages

How does a court of law go about assessing general pain and suffering damages when a victim is injured in a motor vehicle collision? As the name implies general damages are intended to provide compensation for a number of consequences which flow from a wrongful injury.  The typical list of factors that a court of law will consider include the following:

  1. Age of plaintiff;
  2. Nature of the injury;
  3. Severity and duration of the injury;
  4. Disability;
  5. Emotional Suffering;
  6. Loss or impairment of life;
  7. Impairment of family, marital and social relationships;
  8. Impairment of physical and mental abilities;
  9. Loss of lifestyle;
  10. The stoicism of the plaintiff.

Compensation for Pain and Suffering

In our experience the two most critical factors are 2 and 3, the nature of the injury and the severity and duration of the pain. Obviously, if a person is going to have an injury with permanent pain and suffering, that individual will receive significantly more compensation than someone with an injury that causes problems for two years.

The amount of compensation for pain and suffering awarded is subject to a cap that was imposed by the Supreme Court of Canada in 1978. This cap limits payouts to victims and prevents auto insurance premiums from becoming too high for auto insurers.

This is why in Canada we do not see multi-million dollar awards for seemingly moderate injuries. Also in the US they make routine use of juries and it is typically a jury that is awarded the very large amounts you hear about in the US (the award is very often reduced by 80% to 90% on appeal, but the news media does not report that because it is not sensational).

In Canada we don’t use juries because Canadians are at the opposite end of the spectrum from Americans as Canadians will under compensate a victim for a serious injury! Don’t ask why this stark dissimilarity exists between the United States and Canada when so many other cultural aspects of the United States and Canada are in fact similar.

In any event, back to the cap by the SCC in Andrews v Grand and Toy, the Supreme Court of Canada basically said at the time that they were awarding $100,000.00 for a quadriplegic as the highest amount that could be awarded for general damages for pain and suffering. Please note that updated in today’s dollars that would be $380,000.00 for general damages if you are a quadriplegic. Also note that this is only for pain and suffering and does not include the treatment costs and the loss of wages which can make a quadriplegic case worth several million dollars.

But in awarding general damages for pain and suffering the most you can receive in Canada is $380,000.00 for being unable to move any of your four limbs whatsoever. This is outrageous but it is the law in Canada thanks to the Supreme Court of Canada.  Understandably then all other injuries are going to receive something less than $380,000.00.

This is why a person with a chronic pain condition can receive the grandiose sum of $125,000.00 from an Alberta court in Red Deer. $125,000.00 for a chronic pain condition that a victim may have for thirty or forty years is the epitome of under compensation. Nevertheless, this is due to the Supreme Court of Canada cap.

Other factors which will be considered are listed at the beginning of this blog and can raise or lower the amount accordingly.

Pain and Suffering Lawsuit

As lawyers, we:

  • Gather all of the medical-legal reports
  • Analyze them in detail – the exact nature of the injuries (diagnosis), the exact prognosis from various doctors, which often disagree
  • Research the case law for similar injuries (which are often not the exact same injuries due to the nature of legal advice). A similar injury (not exact) will attract similar dollars and those are what we call “precedents”. Thus the aspect of legal research becomes very important in trying to find legal cases which are similar to the case you are trying to quantify.

Of course the cases must also be from Alberta, as the Alberta courts typically are much more likely to follow a precedent if it is an Alberta case rather than a BC case.

In BC the judges are much more sympathetic to victims and provide probably 150% of the value of damages received by Alberta judges, but that is a blog for another time.

Brent L. Handel, Q.C.