Serious Personal Injury

Damages for “Pain and Suffering” in a Personal Injury Claim

Written on behalf of Cuming & Gillespie LLP Published on March 7, 2023
a man leaning head in hands against a wall

Individuals involved in a car accident can quickly flip their lives upside down. Injuries may be immediate or can begin to ensue in the following days, impacting the individual’s physical and mental ability to work or engage in daily activities. Significant medical bills and financial concerns can come with these limitations, which can exacerbate any existing issues. 

Fortunately, Albertans who have been injured due to the result of someone else’s negligence can advance a personal injury claim for compensation to help alleviate some of the financial pressure. The amount of compensation being claimed is often based on several heads of damages, including pain and suffering. However, depending on the type of accident and resulting injuries, the amount that a person can claim under this head of damage will vary. 

Personal injury claim overview

A personal injury claim is generally advanced as a mechanism to seek monetary compensation for an individual who has suffered injuries due to someone else’s negligence. The claims process is a formal process for an individual to recover compensation from the party who was responsible for an individual’s injuries. 

The overall purpose of awarding damages in a personal injury claim is to restore the plaintiff to their position if the injury had not happened. Financial compensation can help the individual return to life with financial stability.

A claim may be advanced following various accidents, including car accidents, pedestrian and motor vehicle accidents, recreational accidents and slip and falls. 

What types of damages can be awarded in a personal injury claim?

In a personal injury claim, there are three primary categories of damages which may be available to an injured party, which are:

  • General (non-pecuniary) damages;
  • Economic or special (pecuniary) damages; and
  • Aggravated or punitive damages. 

Beyond these categories, there are various heads of damages which consider compensation relating to various impacts on a person’s life, which include damages for pain and suffering. Due to the complexity and broad impact of an injury on a person’s life, assessing the amount of damages in a claim can be difficult. Because of this, there are numerous “heads of damage” which an individual may seek to recover compensation under. However, this blog post will focus on “pain and suffering.” 

What is “pain and suffering”?

Pain, suffering is a head of damage which generally refers to an injured party’s physical discomfort, mental and psychological anguish resulting from the injury, and general loss of enjoyment of life. It is important to recognize that these symptoms and factors will vary from one person to another. For example, a person in a recreational accident may suffer pain and limitations due to physical injuries. In contrast, an individual involved in a car accident may suffer from psychological shock, driving anxiety and flashbacks of the accident. Notably, both examples can impact an individual’s daily routine, ability to work, and social interactions. 

This head of damage is considered general (non-pecuniary) damage as it is a loss which is not monetarily quantifiable. 

Pain and suffering is a head of damage intended to provide the injured party with financial support to help them through the circumstances and move forward. 

Evidence required to justify your pain and suffering claim

Generally, medical documentation and personal testimony are used to support a claim of pain and suffering. This information can help shed light on the impact of the accident and injury on the plaintiff. Statements from the plaintiff and those close to them can help establish that the plaintiff’s life has been altered due to the injury. 

Due to the nuances associated with proving pain and suffering, it is helpful to work with an experienced personal injury lawyer so that they can help you collect evidence and present it convincingly.  

How much can I recover under pain and suffering?

There are various factors which can impact the amount of compensation awarded to a plaintiff, including:

  • Established negligence of the defendant; 
  • The type and seriousness of the injury;
  • The type and amount of treatments which have been or will be required;
  • The anticipated future impact of the injury; and
  • The overall impact of the accident and injury on the plaintiff’s life.

Currently, in Alberta, the minor injury regulations state that the maximum amount of compensation recoverable for pain and suffering is set at $5,817 as long as the injury does not cause a “serious impairment.” The most common injuries that fall under this cap are soft tissue injuries, including sprains, strains, and contusions. It is important to note that an injury which resolves quickly or initially appears to fall within this cap may not be the case. Therefore, speaking with a knowledgeable personal injury lawyer who can assess your claim before you agree to a settlement is important. 

Suppose a plaintiff has suffered an injury that falls outside the cap, such as a permanent injury, disability, traumatic brain injury, or paralysis. In that case, they may claim compensation in excess of the cap. In the 1978 case of Andrews v. Grand & Toy Alberta Ltd, the Court awarded the plaintiff $100,000 for pain and suffering. This case has set the general maximum for claims under this head of damage. However, the cap has increased from $100,000 in consideration of inflation. The maximum cap is now approximately $370,000 for pain and suffering related to injuries resulting in a serious impairment. 

The Accident Lawyers at Cuming & Gillespie LLP in Calgary Help Clients Recover Compensation  

After an accident, it is important to prioritize your health and recovery. However, seeking legal advice regarding your personal injury claim as soon as possible is important to ensure that you are positioned for success. The accident lawyers at Cuming & Gillespie LLP are ready to help whenever you require assistance. Our lawyers will help you understand each component of your claim and advocate on your behalf throughout the claims process, negotiations, and litigation, if necessary, to ensure you receive the compensation you deserve. Our office is located in Calgary. However, we proudly assist clients throughout Alberta. Call us at 403-571-0555 or complete our online form to arrange a confidential consultation.