How do the Courts decide on an Award for Pain and Suffering?

Posted by Injury Lawyers of Ontario on February 22, 2017

Non-pecuniary damages, also known as general damages, are intended to award a plaintiff for their non-monetary losses, such as for their pain and suffering, a loss of enjoyment in life, and inconveniences caused by their injury.  As asserted in Parypa v. Wickware (1999), a plaintiff is entitled to reasonable damages for their pain and suffering, and a fundamental principle in tort law is, “to the extent a monetary award can accomplish it, the plaintiff should be placed in the same position he or she would have been in had the accident not occurred, but not more”.

The court refers to case law, particularly involving similar injuries and circumstances, when determining an appropriate amount of non-pecuniary damages.  In Stapley v. Hejslet (2006), the court concluded that a non-pecuniary award will vary based on the unique circumstances of each case and the following factors should be considered in a determination of the appropriate damages for pain and suffering.

  •       Age of the plaintiff
  •       Type of injury
  •       Duration and severity of pain
  •       Disability
  •       Emotional suffering
  •       Loss or impairment of physical and/or mental abilities
  •       Impairment of family, marital and social relationships
  •       Loss of lifestyle
  •       Plaintiff’s fortitude/endurance

In the trial, Redmond v. Krider, the judge was tasked with determining non-pecuniary damages arising from a motor vehicle accident.  This civil action arose after the defendant driver turned left and crashed into the plaintiff as the plaintiff was driving through an intersection on a green light, in March 2010. The plaintiff was then 47 years-old and had several pre-existing conditions and injuries, including fibromyalgia which resulted from two previous accidents, one of which was a front-end collision caused by a drunk driver.  She also suffered from post-traumatic stress disorder (PTSD) after becoming the victim of an armed robbery in 2006, although she overcame her symptoms with treatment and over time.

The 2010 (third) motor vehicle accident re-activated the plaintiff’s pre-existing injuries and caused soft-tissue injuries, fibromyalgia (or chronic pain), persistent somatic symptom disorder, sacroiliac joint dysfunction, headaches, and cognitive and psychological disorders (including short-term memory and concentration problems, as well as anxiety and depression).  The judge acknowledged that the plaintiff’s quality of life has been drastically reduced since the accident.  She was once able to enjoy physical fitness, a pain-free life, and the ability to travel with her partner, but she now arrives home from work “completely exhausted and preoccupied with measures to try to lessen her pain”.

The trial took place four years after the accident and medical experts gave the opinion that the plaintiff’s pain is chronic and her symptoms are unlikely to improve. In determining the appropriate amount of damages, the judge relied on two cases introduced by plaintiff’s counsel, Cantin v. Petersen (2012) and Cumpf v. Barbuta (2014). Both plaintiffs, in these cases, were awarded $150,000 in non-pecuniary damages and both suffered many of the same injuries as Ms. Redmond and their quality of life was similarly impacted, particularly with respect to the challenges of functioning with chronic pain syndrome.  On these grounds, the judge awarded $150,000 in non-pecuniary damages, included in the almost $550,000 in total damages awarded to the plaintiff.

The knowledgeable Kitchener motor vehicle accident lawyers, with the Injury Lawyers of Ontario group, specialize in representing accident victims who were injured in car accidents, motorcycle accidents, and pedestrian and cycling accidents.  We apply our vast experience and expertise to developing a strong case for compensation and in supporting our clients and their families throughout the recovery and claims process. We invite you to read testimonials from clients and find out how we can help at this difficult time. 

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