Canadian law offers a remedy to those who suffer personal injuries in a motor vehicle accident. A personal injury is defined as a variety of physical and mental harm that a person suffers because of someone else’s negligence.

Such injuries can result in significant medical bills and loss of income. These economic losses are easy to quantify with invoices and receipts. However, not all personal injuries have a monetary value. 

For example, a person may also experience extreme physical pain, emotional distress, and other non-economic losses. Pain and suffering is one form of non-economic loss, which is subjective and lacks monetary value. 

Moreover, a person may need to meet certain conditions so that they can be compensated for pain and suffering. Therefore, consulting an experienced personal injury lawyer at the outset of the injury is very important to assess whether you have a viable case. 

What constitutes pain and suffering?

Filing a personal injury claim falls under tort law, which is based on common law principles. It allows individuals who were injured because of someone else’s negligence to seek compensation for their losses, such as pain and suffering.

Although common law principles primarily govern personal injury law across Canada, each province and territory has regulations governing various aspects of personal injury lawsuits. A personal injury lawyer plays a valuable role in determining which provincial laws apply to your case. 

It’s very important to understand what constitutes pain and suffering in your personal injury case. While there’s no universal definition, pain and suffering are generally referred to as intangible losses that a person may endure after being injured in an accident. 

While these terms are commonly used interchangeably, pain and suffering have medical distinctions. Pain is a physical sensation indicating an injury within the body. As pain intensifies, your physical symptoms may worsen and lead to a diminished quality of life. 

Suffering, on the other hand, is a perception of the pain an individual experiences, which encompasses discomfort and impairment due to an injury. 

These differences can be beneficial when you begin your personal injury claim so that you can present the facts of your case more effectively.

From a legal perspective, pain and suffering is a collective term that encompasses the physical pain or mental anguish resulting from the injury. It also includes any subsequent disability arising from the injury. 

For example, if you sustained a brain injury in a car accident, you may suffer from insomnia, and the inability to sleep can reduce your quality of life. In this case, you may be able to pursue damages for pain and suffering. 

Below are other types of losses and conditions that may count as pain and suffering in Canada:

• Physical pain and impairment
• Scarring and disfigurement
• Loss of enjoyment of life
• Depression
• Anxiety
• Cognitive dysfunction
• Loss of aspects of a relationship

How much is the damage cap for pain and suffering? 

Calculating the accurate value of pain and suffering can be complex. In most instances, you’ll need a lawyer who knows the appropriate amount of compensation you can claim for pain and suffering. 

Like other non-pecuniary losses, the compensation for pain and suffering will depend on the severity of the injury. Typically, catastrophic injuries can lead to more significant pain and suffering. However, unlike in the US, considerable compensation amounts for pain and suffering are rare in Canada. 

The Supreme Court of Canada has limited the amount of compensation for pain and suffering through three decisions, which are known as the Damages Trilogy. In 1978, the amount was capped at $100,000, and this was considered to be reasonable for all non-economic losses. 

You should generally receive non-pecuniary damages for pain and suffering, loss of amenities, and diminished life expectancy. Each of the rulings in the Damages Trilogy involved young individuals who either developed quadriplegia or suffered severe mobility or mental impairment because of severe accidents. 

To this day, various courts in Canada have used the $100,000 limit and adjusted the amount each year for inflation. In 2020, the limit for non-pecuniary damages amounted to roughly $360,000, depending on which province you live in. 

For instance, Nova Scotia’s Insurance Act (Act) governs the compensation amount a person may receive in the province for pain and suffering. The Act also caps the amount of money you can recover for pain and suffering caused by minor injuries, such as sprains, strains, and certain types of whiplash. 

If you were in an accident in 2022, and your injuries didn’t constitute serious impairment, your claim for pain and suffering would fall under the minor injury cap, which was $9,300 for the year. 

Courts have recognized, however, that each person’s pain and suffering are distinct, and they have allowed for some degree of flexibility in the amount of money to be awarded. 

Who can be eligible for pain and suffering damages?

Every individual’s circumstances, injuries, and losses are unique. However, the following are the general conditions that are essential in claiming damages for pain and suffering: 

Another person’s negligence caused the injury

To seek damages for pain and suffering, your injuries must have been caused by someone else’s negligence. This means that when you file your claim, you need to prove the elements of negligence under tort law. 

The injury is serious and affects your quality of life

The severity of your injury and how it affects your everyday life and overall well-being are crucial when pursuing damages for pain and suffering. 

Provinces, like Ontario, have a threshold test for those seeking compensation for non-economic losses, including pain and suffering. Under Ontario’s Insurance Act, you may not be able to recover non-pecuniary damages if you don’t meet the following criteria: 

• Incurred permanent serious impairment of a vital physical, mental, or psychological function
• Endured a permanent, serious disfigurement

Aside from passing the threshold test, you’re also required to demonstrate that your non-economic losses exceed the statutory deductible. If the value of the pain and suffering claim is equal to or less than the current deductible, you might not be able to recover any amount for non-pecuniary losses. 

There’s sufficient evidence for the injury sustained

You need to collect all relevant evidence to demonstrate that you suffered an injury and the extent of pain and suffering it has had on your life. A personal injury lawyer can help you collect all relevant evidence, including: 

• Medical reports from treating physicians
• Medical prognosis
• Expert testimonies regarding the extent of your pain and suffering
• Testimonies from family members and loved ones
• Assessments from mental health specialists
• Pain and suffering journal

Did you know?

Canada’s median value for pain and suffering awards was $77,100. The number indicates that half of the pain and suffering judgments stood at less than $77,100, while the other half went beyond this amount.

Maximize Your Pain and Suffering Settlement With Diamond & Diamond Lawyers

Proving economic losses with actual monetary value is already hard enough. It becomes even more complex when you claim damages for pain and suffering, which has no monetary value.

In such cases, you’ll need the help and expertise of an experienced personal injury lawyer. Contact Diamond & Diamond Lawyers for a free case evaluation, so that we can gain a better understanding of your case. This will also help us to develop a strategy to maximize your pain and suffering settlement. 

Our team of lawyers is skilled at determining how much to claim in damages for your pain and suffering based on the intricacies of your case. With our knowledge and experience, we can assist you in getting the maximum compensation necessary to rebuild your life.  

Secure the best possible settlement for your pain and suffering damages. Contact Diamond & Diamond Nova Scotia for expert legal representation.

FAQs on Pain and Suffering Damages

Is it possible to seek a pain and suffering settlement without legal representation?

Yes, it’s possible. However, handling a simple claim can easily become complex if you’re not well-versed in personal injury processes and the applicable laws. 

Since pain and suffering are intangible losses, it’s much harder to determine the value of your case. Securing a fair settlement that adequately compensates you will demand more time and effort if you don’t retain a knowledgeable lawyer.

What is the limitation period for filing a pain and suffering claim in Canada?

Each province and territory has varying limitation periods, depending on the nature of the claim. Generally, however, most personal injury cases have a two-year limitation period from the date of the accident.

How can a personal injury lawyer help with your pain and suffering claim?

Personal injury lawyers have extensive knowledge of personal injury law. They can help you establish a well-grounded claim that will convince the insurance company, court, or jury to grant the compensation you demand. They can negotiate a fair settlement amount with the insurance company, as well as fight for fair compensation in court.

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