It’s not uncommon for courts to grant damages of over $100,000 to injured plaintiffs suffering chronic pain. This includes compensation for pain and suffering as well as past and future income loss. Damages just for the chronic pain component tend to range between $35,000 and $125,000.
What Is Chronic Pain?
Chronic pain is pain that lasts beyond the normal healing time for the injury and can’t be proved by objective medical findings.
For example, in a typical whiplash involving small tears within the muscles and ligaments around the neck, the pain is usually better after a few weeks and gone within several months. But in about 10% of cases, the injured victim develops a chronic pain syndrome. Although there may no longer be a physical cause, the pain they suffer and their resulting disability is very real. Coping with this can be very difficult and, understandably, often leads to depression.
Chronic Pain Case Examples
A crucial factor in compensating chronic pain is the person’s credibility. Their testimony, if accepted as true and reliable by the judge, is often the most persuasive “proof” of their claim.
Consider the case of A.S., decided by the BC Supreme Court in 2010. Mr. S, 55, was an energetic hardwood floor installer. Hurt in a rear-end crash, he suffered a mild to moderate soft tissue injury to the left side of his neck and shoulder. Four years later, he still experienced neck pain, although it was much less intense than before. He continued to work, but his jobs took longer. He couldn’t swim or canoe anymore, but he still hunted and hiked occasionally.
The judge referred to an earlier BC Court of Appeal case. That case confirmed that courts must be careful compensating an injured person when there is little or no objective evidence of the pain and the complaints continue longer than expected. But that case also reiterated that the plaintiff’s own evidence, “if consistent with the surrounding circumstances” is sufficient proof.
In the case of A.S., the judge described Mr. S as a “stoic and determined person,” who tried to remain physically active despite his continuing pain. The judge accepted his evidence of his problems and awarded him total damages of $156,820, including $75,000 for his pain and suffering.
The evidence of doctors and other medical specialists also helps to substantiate an injured plaintiff’s claim of chronic pain.
For example, in another recent case, all the specialists who examined P.R. had a “guarded prognosis for her complete recovery” from her soft-tissue injuries “despite her tremendous efforts to rehabilitate herself.” A 26-year-old graphic designer, she was rear-ended in two accidents and ended up suffering chronic neck and back pain, depression and post-traumatic stress disorder. Before the accidents, she was a fun-loving active woman. After, she couldn’t sit comfortably for long periods and gave up activities she loved like horseback riding. Her relationship with her common-law husband was also affected.
“There is no doubt that Ms. [R] has been in pain almost continuously since the accidents,” said the judge. “Neither her family physician nor the many specialists she has seen have found any exaggerated or non-organic symptoms. She is clearly not a malingerer.” She was awarded over $360,000 in total damages, including $95,000 for her pain and suffering.
Chronic pain cases require a careful and thorough assessment to make a solid legal claim. Seek legal advice if you are hurt in an accident.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice.
Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.
