Duhaime's Law Dictionary


Pain and Suffering Definition:

Pain and other forms of distress caused by another's tort.

Related Terms: Addis v Gramophone, the Rule in, Non-pecuniary Damages, Personal Injury, Damages

University of Saskatchewan professor Ken Cooper-Stephenson proposed that pain and sufering referred to: "...all manner of distress which personal injury victims might feel as a result of their injuries...."

In their 2008 edition of Civil Jury Instructions, justices Wilson, Garson and Hinkson of the Supreme Court of British Columbia referred to pain and suffering as:

"... all distress and discomfort felt by the plaintiff including physical pain, whether caused by the accident directly or medical treatment or its complications, and mental duistress, where properly proved."

In the Civil Jury Instructions just quoted from, the authors then advised the judiciatry to use these words when describing pain and sufering to a jury:

"Your award should compensate (the plaintiff) for the pain and sufering (he/she) has excperienced from the date of the inury to the present, as well as for the pain and suffering you conclude (he/she) is likely to experience in the future. In making your award, you should consider all disttrress or discomfort caused by or contributed to by the accident that has been felt by (the plaintiff) in the past and is likely to be felt by (him/her) in the future."

It is a most challenging task to place a monetary amount on one's pain and suffering. As one California judge suggested:

"In truth the admeasurement of suffering in terms of money is a most clumsy device; but it is the best device which the law knows, and it is a device which the law will employ until some better is discovered."

Similarly, in Buffalo v City of Des Moines;

"In one sense of the word there is no such thing as a money equivalent for a broken and crippled body or for physical or mental suffering, but as the nearest practical approach to satisfaction for torts of this nature the law allows the jury in proper cases to assess money damages."

REFERENCES:

  • Buffalo v. City of Des Moines, 186 N.W. 844 (Iowa, 1922)
  • Cooper-Stevenson, Ken, Personal Damages in Canada, 2nd Ed. (Toronto: Carswell, 1996), at page 485
  • Professor Fleming, Professor John G., "Damages for Non-Material Losses", Law Society of Upper Canada Special Lectures 1973, 1
  • Merrill v. L.A. Gas & Elec. Co., 111 P. 534 (California, 1910)

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