Quick Tips: Assessing a Victim’s Pain & Suffering

By Matt Lalande in Hamilton Personal Injury Lawyer, Trial & Courtroom on April 05, 2023

As legal professionals we understand that success in the courtroom hinges on more than just knowledge of the law. It’s about skillfully blending our legal expertise with persuasive storytelling, calculated tactics, and an unwavering attention to detail so that we may fight for our client’s cause but also to leave a lasting impression on the judge and jury. Once and a while we like to explore the strategies and techniques and tips which help us better become a formidable force in the courtroom, no matter if you are representing a car accident victim, someone show was hurt in a motorcycle accident, pedestrian, trucking or bicycle accident.

How does the Law Assess a Victim’s Pain & Suffering?

In Canadian law, damages for pain and suffering, also known as non-pecuniary damages, are awarded to compensate accident victims for the physical and psychological harm they have endured due to another party’s negligence. These damages aim to alleviate the suffering and restore the quality of life of the injured person to the extent possible.

Physical pain includes the actual bodily harm sustained in an accident, such as broken bones, soft tissue injuries, or permanent disabilities. Psychological pain refers to the mental and emotional distress that may result from the accident, such as anxiety, depression, or post-traumatic stress disorder (PTSD).

It’s important to note that in 1978 the Supreme Court decided (through three important cases) that damages for pain and suffering would be capped at $100,000.00. As of late 2022, the cap was approximately CAD $418,000 due to inflation. However, the actual amount awarded depends on the severity and duration of the victim’s pain and suffering, as well as the specific circumstances of each case.

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Where does the Assessment Start?

Firstly, accident victims need not establish that the admitted negligence of the defendants was the sole cause of his or her injuries, but must demonstrate a substantial connection between the accident and the physical and psychological injuries: Thompson v. Helgeson, 2017 BCSC 927 at paras. 28-30.

Then, an appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

What are some “Specific Circumstances” a Judge will Assess?

The inexhaustive list of common factors that typically influence an award of non-pecuniary damages (compensation for pain and suffering) includes:

1. age of the plaintiff;
2. nature of the injury;
3. severity and duration of a person’s disability or pain;
4. emotional suffering; and
5. loss or impairment of life;
6. impairment of family, marital and social relationships;
7. impairment of physical and mental abilities;
8. loss of lifestyle; and
9. the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

Will Compensation for my Losses make me Whole again?

Unfortunately, no. While damages awarded in a lawsuit can provide financial compensation to the injured party, they can never truly make a person whole. This is because no monetary value can fully capture the physical, emotional, and psychological toll that an accident or injury can have on an individual’s life. Damages can help cover medical expenses, lost wages, and other tangible losses, but they cannot restore the intangible aspects of well-being that may be lost, such as a sense of security, enjoyment of life, or the ability to engage in cherished activities. In essence, damages are an imperfect remedy, as they can only attempt to alleviate the hardship caused by the injury, but they cannot completely undo the suffering and distress experienced by the victim.

Have you been involved in a Serious Accident?

If you or a loved one has been involved in a serious car accident, call our Hamilton Personal Injury Lawyers today, toll-free, no matter where you are in Ontario at 1-844-LALANDE or local in the Hamilton / Burlington area at 905-333-8888 or fill in a contact form on our website today. Our Hamilton car accident lawyers would be more than happy to provide you and your family a free consultation and free case evaluation regarding your pain and suffering, insurance coverage, inform you of your legal rights as a car accident victim and your options concerning your car accident related injuries and losses. Remember, we work on a contingency fee basis, meaning that if we don’t win, you don’t pay.