When determining a settlement, it’s not just the bills that get counted anymore.
Imagine this: You were a passenger in a serious car accident. While the driver walked away with a concussion and some bruising, your injuries were more serious. Even so, you were able to resume some of your pre-accident activities of living. The problem became the PTSD—post traumatic stress disorder—that left you paralyzed with fear every time you needed to get into a car.
Is that worth something, in the court’s view? Or in the view of insurance companies, working on a settlement negotiation?
There are damages awarded for pain and suffering, and then there are cases where psychological trauma are the sum total of the case. The difference can be a matter of opinion but the tide of opinion is shifting to include quality of life as a factor in the decisions.
What Is Pain And Suffering?
Even with a soft tissue injury, like whiplash, physical pain is an ongoing reality for many people. While it can’t be measured in any standard way—some people have a higher pain threshold than others—chronic pain can prevent an accident victim from getting back to the life they had prior to the accident.
In addition, there is psychological pain, and that is even more difficult to measure objectively. However, psychological damage resulting from the physical effects of an injury are part of pain and suffering.
For example, a serious head injury can result in organic permanent and serious cognitive damage, which could prevent a victim from ever resuming their pre-accident lives. Psychological issues, such as PTSD, are ever more recognized as an issue that can prevent recovery, and that has attached to it real financial consequences.
How Much Money Can You Claim, With Regard To Pain And Suffering?
The Insurance Act has put a cap on what can be paid out in a claim for non-pecuniary (non-financial) damages, that include ‘pain and suffering’, and in what circumstances.
It is adjusted for inflation annually but in 2018, that cap was just over $360,000. There is also an applicable deductible to consider, which is applied on awards from $0-$126,610.00 and is also indexed to inflation. In 2018, the deductible was $37,983.33. That deductible has to come off the pain and suffering award, before it is provided.
What Is A Threshold Limit On Awarding Of Pain And Suffering Damages?
Damages for pain and suffering are only awarded in cases where the victim meets a certain threshold.
Your injuries need to consist of a serious and permanent impairment to an important physical or mental function to qualify. That includes death, permanent and serious physical disfigurement or permanent and serious physical or mental impairment.
The intent of the limit is to prevent people from seeking damages for pain and suffering when in fact they will at some point be able to return to some form of their pre-accident lives. The permanence of the injury, whether mental or physical, is key.
Of course, psychiatric impairment is much more difficult to evaluate, including how permanent it is, but society has turned in its willingness to deal with mental health.
We more commonly see mental health as being as important as physical wellbeing, so much so that PTSD is now in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, fifth edition). Anxiety, depression and chronic pain are all a part of pain and suffering.
Can You Sue For Psychological Trauma, Above And Beyond ‘Pain And Suffering’?
Some accident victims are so traumatized that their lives are forever altered. It’s in these instances that a person should seek the advice of a personal injury lawyer as pecuniary damages might be in order.
These are economic damages like loss of income, medical and treatment expenses and all the other costs related to assisting the victim or managing their inability to do the things they did, pre-accident.
In fact, it is possible to be so traumatized that a victim could be physically well and yet be able to seek compensation. In one of the most interesting cases in the province, the driver of a vehicle, Sharlene Simon, who struck and killed a boy, Brandon Majewski, while he was riding a bicycle, sued his estate for $1.35 million in damages because of her own psychological trauma.
In an article by CTVnews.CA: “According to her lawyer, Michael Ellis, Simon has since been diagnosed with post-traumatic stress disorder and is no longer able to work. The statement of claim says that she suffers from headaches, depression, irritability, anxiety and severe emotional discomfort and trauma.
“She relives the terror of this incident every day. Ms. Simon has been unable to return to work since the collision. She has been diagnosed with post-traumatic stress disorder. She is also a victim,” Ellis said in a statement.”
This is an extreme case that has implications in morality, but it does effectively demonstrate the possibility of suing for psychological damage independent of any physical injury. The outcome of that case is still pending.
The idea of awarding damages for pain and suffering isn’t new. According to an interesting article in Macleans magazine: “Awards for “nervous shock,” or acute stress, date to the 1897 case Wilkinson v. Downton, in which defendant Wilkinson told Downton’s wife that her husband was badly injured in a car accident (he wasn’t) which led to her suffering incapacity; a British court awarded her £100.”
What is new is that quality of life is increasingly becoming a factor that courts, and settlements, need to factor in. It’s not just about the physical ability to carry on life activities: mental factors matter too.
Whether soft tissue injuries or a serious impairment are the result in your accident situation, it’s always worthwhile to check in with a personal injury lawyer, who can put you on the right track to setting up a claim, should the need arise.