Valuing Pain and Suffering


A recent British Columbia Supreme Court decision provides an example of how our courts value pain and suffering, or non pecuniary damages.  The assessment involves an analysis of the harm or damage suffered by the individual plaintiff, the impact of that harm or damage on the lifestyle of the plaintiff and an assessment of what the future holds for that plaintiff in terms of further recovery.  Judges also take into consideration awards made by other judges in cases involving similar injury and similar effect of injury.

In the case of Maldonado v. Mooney 2016 BCSC 558 the 30 year old male plaintiff was awarded $110,000 for the pain and suffering that he endured following a motor vehicle accident  that had occurred six years prior to trial and would continue to experience in the future.  In describing the nature and extent of injury and its impact on the plaintiff, the trial judge said as follows:

[60]  In summary, I find that at the time of trial, six years post-accident, the plaintiff’s recovery from soft tissue injuries to his cervicothoracic and lumbarsacral spine has plateaued   He experiences significant low back pain and thoracic pain when his spine is subject to the stresses of his physically demanding occupation.  His prognosis is, in the words of Dr. Kleinman, “guarded”.  He is unlikely ever to fully recover and the likelihood is that he will continue to have significant back pain for the rest of his life, with increased vulnerability to future injury.  There is some significant possibility that Mr. Maldonado would have gone on to experience some degree of low back pain but for the accident, but it is not probable that this would have been disabling, or to the same degree that Mr. Maldonado now experiences.

[61]  Mr. Maldonado is also suffering from depression.  Although Dr. Rasmusen believes there is a causal connection between the major depressive disorder and the motor vehicle accident, from Mr. Maldonado’s own testimony his reaction to the break-up of his marriage must be a significant causal factor as well.  It is clear from Mr. Maldonado’s testimony that he relates the break-up of his marriage to the effect of his injuries.  I am unable to draw that conclusion.  We heard no testimony from Mr. Maldonado’s wife.  There is rarely a single cause to the break-up of a relationship.  I do not dispute the genuineness of Mr. Maldonado’s perception that the accident was a factor, but there is simply not sufficient evidence for me to make that finding on a balance of probabilities.

[62]  Nevertheless, I do conclude that Mr. Maldonado’s psychological reaction to his injuries has undoubtedly complicated his emotional reaction to his divorce.  In this respect the two causal factors are best viewed as one tortious and one non-tortious cause.  The injuries continue to contribute to the depression as a causal factor and the defendant is fully liable for the consequences.

[63]  The prognosis for the depression, I find, is not so grave as with respect to his physical injury.  There is a reasonable prospect that Mr. Maldonado may experience at least some degree of recovery from his depression, although as Dr. Rasmusen concluded some degree of permanent depressive symptoms will likely continue.

The effect of any injury is unique to the individual and the award of non pecuniary damages is unique to the injury and individual.  The award made in any particular case however can help you understand the assessment that is undertaken by trial judges and the manner in which pain and suffering is valued.

2016-04-05T13:33:13+00:00 April 5th, 2016|Uncategorized|