In Part 1 of this topic, we discussed the basics of pain and suffering damages and how calculators that are used by many insurance companies aren’t that reliable since they don’t take into consideration certain things such as causation.
We would like to discuss the topic a bit further, focusing on defining pain and suffering, what constitutes as pain and suffering and what type of damages are there. So let’s begin.
Definition of pain and suffering
Pain and suffering can be generally defined and both physical and mental anguish which was caused by an injury, even physical damage to your body e.g. fractured skull. It can also be defined as discomfort caused by aches, inability to perform some activities (temporarily or permanently), shorter life span (of you or your loved one), mental anguish (depression, embarrassment because of injuries etc.).
Pain and suffering is a category of general damages which are paid by the one who caused them, either through his/her negligent behavior or intentionally. The amount that is paid for pain and suffering is subjective and it depends on a case-by-case basis.
Pain and suffering as damages
Victims of an accident are allowed to ask to be compensated for non-economic damages. These damages are usually a result of bodily injury that they sustained in the accident, as well as any pain and suffering disability, physical impairment, mental anguish, loss of capacity etc.
When the incident is minor, this is covered through compensation for the inconvenience, but in major incidents it is covered by the compensation for the agony and suffering.
Special vs general damages
When we talk about damages in a personal injury case, we need to tell the difference between special and general damages. They can be counter-intuitive and tricky, but let’s see what is considered a general and what a special damage and where do pain and suffering damages belong to.
General damages are damages that aren’t necessarily monetary e.g. for pain and suffering, emotional trauma and loss of consortium. There are no specific bills with specific amounts that need to be paid. However, these are still losses that need to be covered.
On the other hand, special damages have exact monetary values, such as medical bills, lost wages etc. and they represent the victim’s out of pocket expenses. These economic damages are easy to calculate and obtain.
In personal injury cases, the victim often suffers both economic (special) and non-economic (general) damages. This creates additional difficulties for pain and suffering claims, because these pain and suffering damages need to be calculated fairly for the insurance company and victim.
General damages usually include
- Physical pain and suffering
- Physical impairment
- Mental pain like stress, trauma or anxiety
- Lower quality of life
- Loss of companionship
As you can see, all of these damages don’t have a specific bill or ‘price tag’ and their monetary value is sometimes difficult to determine. Emotional distress for example, can be a good example of pain and suffering damages that is a bit hard to calculate or quantify.
However, special damages usually include
- Medical bills
- Lost wages
- Cost of home care
- Cost of repair or replacement etc.
These examples have an exact monetary value and can be easily calculated and compensated for. For example, if you were in a car accident that broke your leg, the bills you receive from the hospital could be used to calculate these types of pain and suffering damages.
How to prove pain and suffering damages?
When including pain and suffering in your claim, you need to make sure that there is documented evidence of such pain and suffering damages. Evidence that will help convey and improve your claim can be:
- Documents or written opinions of an expert in a specific field e.g. a doctor or psychologist
- Documentation of past and present medical prescriptions (both physical pain and mental issues)
- A written or oral testimony of your pain and suffering
- Your family’s and loved one’s written or oral testimony
The easiest way to prove pain and suffering is through medical documentation and medical bills. Even photographs of injuries can be useful. Even your rating of your pain (from 0 to 10) is recorded and can be used as additional proof.