What are Pain and Suffering Damages?
If you have been injured because of another party’s negligence or fault, you may qualify for monetary compensation. In law, monetary compensation one party pays to another is called “damages.”
This blog post provides a brief introduction to “pain and suffering” damages, a common type of monetary compensation in personal injury law.
What are Damages?
The basic idea is that courts use damages to compensate an injured party for losses caused by the Defendant’s wrongdoing. Generally, the amount of compensation the injured party receives is based on:
- the severity of the injuries;
- how long the injuries last; and
- their overall impact on that person’s life.
Unsurprisingly, the same (or similar) injury can impact people in very different ways. Significant variations in the types and effects of injuries led the courts to develop different categories of damages. For example, monetary compensation can be divided into “pecuniary” and “non-pecuniary” damages. Pain and suffering damages are a type of non-pecuniary damage.
Pecuniary damages are a type of compensation that can be measured and quantified in monetary terms. Simply put, pecuniary damages are designed to compensate the injured party for losses concerning or consisting of money. Examples of different ‘heads’ (or types) of pecuniary damage include, but are not limited to compensation for:
- medical expenses;
- physio expenses;
- lost wages; and
- costs of future care.
Non-pecuniary damages are designed to compensate the injured party for losses that are difficult (if not impossible) to measure. The overall goal of non-pecuniary damages is to acknowledge and address the subjective (i.e., personal) impacts an injury has had (and may continue to have) on a person’s quality of life.
Pain and Suffering Damages
Pain and suffering damages are a type of non-pecuniary compensation. They are a specific head of damage intended to compensate the injured party for the physical pain, mental and psychological distress, and general loss of the enjoyment of life an injury has caused. For example, pain and suffering damages can be designed to compensate an injured party for:
- reduced physical capacity;
- depression, anxiety, or post-traumatic stress disorder (PTSD);
- diminished memory or cognitive function; and
- diminished sexual capacity.
How do you Qualify for Pain and Suffering Damages?
To be eligible for pain and suffering damages in Alberta, the injured party must meet three conditions. Specifically, the injured party must show:
- that the defendant was at fault (i.e., they acted negligently or purposefully);
- the defendant’s actions caused or exacerbated the injury; and
- the severity of the injury substantially interfered with the injured party’s life, physical or mental health, or ability to function.
Calculating Pain and Suffering Damages
Pain and suffering damages are designed to provide financial compensation for the subjective impacts an injury has had on the injured party’s overall quality of life. Unsurprisingly, these impacts will vary on a case-by-case basis. Given the challenges of measuring and justifying pain and suffering damages, courts rely on “caps” that set the maximum possible payout for this type of damage.
Please note that these caps are just for pain and suffering damage. An injured party may be able to claim additional compensation under several other heads of damage.
In Alberta, the Minor Injury Regulation, Alta Reg 123/2004 set out the maximum compensation for pain and suffering damages in cases of minor injuries. The Regulation set the cap at $4000. This amount is adjusted for inflation each year. At the time of writing (July 2023), the minor injury cap in Alberta is $5,817.
According to the Regulation, the minor injury cap applies to injuries that do not cause a serious impairment. The most common injuries that fall under the cap for pain and suffering damages include
- soft tissue damages (e.g., sprains, strains, and bruises); and
- type I and II whiplash injuries.
An injury that causes serious impairment is excluded from the minor injury cap. Injuries such as fractures, disabilities, permanent injuries, and mental anguish are considered “serious impairments” and do not fall under the minor injury cap.
Although serious impairments do not fall under the minor injury cap, the Supreme Court of Canada has placed a maximum amount an injured party can obtain for pain and suffering damages. In the 1978 Andrews Trilogy of cases, the Supreme Court set a cap of $100,000 for non-pecuniary injuries following catastrophic or serious bodily injuries. This amount is adjusted for inflation each year. In 2023, the serious impairment cap for pain and suffering damages is approximately $400,000.
On first pass, pain and suffering damages generally make a lot of sense. Injuries can impact people in many ways. Some impacts are easily measured and quantified; others are much harder to express using an amount of money.
The overall purpose of pain and suffering damages is easy to understand. However, claims aimed at establishing and justifying these damages can quickly become quite confusing. There is no specific formula for calculating pain and suffering damages; each case is determined on its own merits.
Understanding and calculating damages following an injury can be complex. An experienced personal injury lawyer from Vogel LLP can help you understand your rights and legal options for moving forward.
Book a free personal injury consultation with a lawyer at Vogel LLP today. We will be happy to answer your questions and advise you on any potential next steps.