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In a personal injury case, out-of-pocket expenses always come along with emotional suffering. For the latter, the courts can award pain and suffering compensation to the plaintiff.
However, getting compensation is also a painstaking process. This involves knowing how the calculation works and providing sufficient proof. In this article, and with the help of your personal injury lawyer, we’ll discuss the basics of awards for pain and suffering.
What is pain and suffering compensation?
Damages or compensation for pain and suffering are awarded to the plaintiff for the psychological effects of the defendant’s actions or negligence that resulted in the plaintiff's injuries.
This is usually awarded in personal injury cases, although the plaintiff can also obtain compensation in other related types of legal actions. This include:
- cases on labour and employment
- medical negligence or malpractice
- product liability cases
- intentional torts
General Damages and Special Damages
In Canada, there are two main types of damages that can be awarded to a plaintiff: compensatory and non-compensatory. As for compensatory damages, it’s made up of special and general damages, of which pain and suffering is part of:
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general damages: also called non-monetary damages; awarded for the plaintiff’s pain (physical and emotional), distress, loss of enjoyment of life, etc.
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special damages: the financial aspect of the plaintiff’s loss (e.g. medical expenses, lost salaries and wages, and property damage)
As such, pain and suffering compensation (or general damages) may be an additional award to the actual expenses incurred by the plaintiff (the special damages). Not to mention that the court can also award non-compensatory damages.
Read next: Emotional distress lawsuit: how it works under Canadian laws
Here’s a video that briefly explains pain and suffering compensation:
Know more about pain and suffering compensation by consulting the best personal injury lawyers in Canada as ranked by Lexpert.
How is pain and suffering compensation calculated?
Calculating a plaintiff’s pain and suffering compensation is usually subjective in nature, as compared to calculating special damages. But these two always go hand in hand, as shown by how insurance companies compute general damages.
There are two common methods to calculate pain and suffering compensation:
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multiplier: the amount of special damages are summed up and is multiplied by 1.5, 2, or above (called the multiplier), which depends on the insurance company’s policies and other factors (e.g. the extent and impact of injuries, the contributory negligence of the plaintiff)
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per diem: a fixed amount (usually the plaintiff’s daily wage) is multiplied for every day that the plaintiff will have to suffer the consequences of the injury, whether it be a short-term or long-term disability
Knowing these computations will guide plaintiffs, not just when presenting a fixed amount of special damages in court, but also during the settlement process. As with any other civil case, there are times when personal injury cases do not reach the court, such as when it’s settled through mediation.
Factors in computing pain and suffering
There’s no straightforward rule on how to arrive at a specific pain and suffering compensation. However, the law provides some standards to guide plaintiffs and their counsel in personal injury cases.
Here are some of the factors that can be considered in calculating general damages:
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personal factors: the plaintiff's age and their health before the accident occurred; usually, there’s a before-and-after comparison of the plaintiff’s health to justify the amount of general damages being claimed for
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severity of the injury: the injury's overall impact to the plaintiff's life, such as their ability to take care of themselves, to find and maintain work, and to do other activities they used to do before the accident
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duration of the injury: whether the injury or disability is short-term or long-term
Statutory deductible on general damages
In addition to the cap on general damages (discussed below), there are provincial statutes that may limit the general damages that a plaintiff can receive.
For instance, in Ontario, victims of automobile accidents are governed by the non-pecuniary loss deductible or the statutory deductible of the provincial Insurance Act. These deductibles are legal ways to discourage lawsuits for moderate amounts, although at the expense of plaintiffs.
However, the Insurance Act also provides for exceptions to these deductibles, such as when:
- the monetary threshold is surpassed; or
- the motor vehicle accident involves a fatality
Other provinces have similar deductibles, such as British Columbia’s Insurance (Vehicle) Act or Québec’s Automobile Insurance Act. This is another important reason why hiring a lawyer, who is knowledgeable of your province's or territory's laws, is important.
Taxation of general damages
As a rule, general damages, including those for pain and suffering, is exempt from tax in Canada. This exemption from tax applies regardless of whether it’s received by the plaintiff as a lump sum or not. However, other components of the total personal injury payout may be taxed, such as damages that serve as replacement of one’s employment income.
What is the cap on pain and suffering compensation in Canada?
Under Canadian’s common law on personal injury, there’s an existing maximum compensation for pain and suffering. This cap was imposed by three cases, informally called the trilogy cases on general damages, that were decided by the Supreme Court in 1978.
These cases were:
- Andrews v Grand & Toy Ltd., [1978] 2 SCR 229
- Arnold v. Teno, [1978] 2 SCR 287
- Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267
These cases set the cap at $100,000; however, this is annually adjusted due to inflation. As of the last quarter of 2024, this limit is now set at around $460,000.
The rationale behind this upper limit is to prevent excessive general damages, which are based on the discretion of the court. It’s also to discourage the filing of frivolous personal injury lawsuits.
Because of this limit, in addition to the other factors in calculating pain and suffering compensation, it’s important to consult first with a personal injury lawyer. They’ll be able to guide you on how to determine the award that you deserve, considering the specific facts of your case.
Our directory of the Lexpert-ranked best personal injury law firms in Canada is another tool to help you when looking for lawyers for your pain and suffering compensation.