Pain and Suffering


When an injury results from a negligent or malicious action of a person to another person, the person who suffered the injury can claim damages in the form of monetary compensation.  The jury or judge exercises wide discretionary power in granting compensatory damages in matters of personal injury.  The measure of compensatory damages must be real and tangible.  It is difficult to fix an amount with certainty in cases involving claims such as pain and suffering or emotional distress.  In assessing the amount of compensatory damages to be awarded, the judge or jury should exercise good judgment and common sense, based on general experience and knowledge of economics and social affairs[i].  However, an appropriate award would be based on the substantive evidence produced[ii].

Pain and suffering is a proper element to recover monetary compensation for the injury caused because of a negligent act or an omission of a person.  When an award is based on mental distress, the judge or jury relies on elements such as:

  • total circumstances that surround the incident, and
  • credibility of substantial evidence and witnesses.

Any plaintiff is entitled to compensation for the pain and suffering endured by him/her as a result of the wrongful act or omission of a defendant.  Pain and suffering also include the suffering that the person endured during any surgery or medical treatment that was reasonably required by the accident.  An award compensating for pain and suffering can be considered equal to the loss of wages[iii].  If there is a compensable severe injury, then compensation under the category of pain and suffering can be based on the same evidence[iv].

Under the category of ‘pain and suffering’, a plaintiff can claim damages even for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, or ordeal[v].  Pain and suffering also includes disfigurement and deformity, impairment of ability to work or labor, anxiety or worry proximately attributable to an injury, and mental distress caused by impairment of the enjoyment of life[vi].  However, damages for pain and suffering can not be awarded if there is no proof of severe injury and if there is sufficient proof that the pain is just imaginary[vii].

In a state of unconsciousness, pain cannot be experienced and there can be no recovery for pain and suffering[viii].  However, infants can recover for pain and suffering caused by a negligent accident because they are too young to explain their pain.  Infants communicate their pain only through their crying[ix].  The jury should be convinced beyond doubt that the plaintiff suffered pain before allowing compensation for pain.  The issue of pain and suffering must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence[x].

The general rule is that when special damages apply to a case, general damages should also be awarded.  Where there is no immediate or substantial pain, damages for pain and suffering need not be awarded.  A jury can deny an award for pain and suffering even though the plaintiff incurred a loss of wages and medical expenses, if the plaintiff’s evidence of injury is subjective[xi].  There is no specific standard to be followed to ascertain the exact amount as damages for pain and suffering.  The discretionary power provided to the jury should not be abused.

When it is certain that pain and suffering will result as a consequence of an accident, future pain and suffering on the part of the injured person will constitute a proper element of the damages which can be allowed for an action for a personal injury.  There should be a reliable probability that such future pain and suffering will result from the accident[xii].  Even if the injury is not permanent, a plaintiff can be allowed future pain and suffering only if the plaintiff proves that his/her pain and suffering is certain and can continue for a long period.

Generally, a right of the deceased to recover damages for his/her pain and suffering can be transferred to his/her representative.  When a person dies during an action seeking damages based on pain and suffering, the action can be continued by the person’s representatives[xiii].  Damages can be recovered for the pain and suffering endured by the injured before his/her death if the injury was not the proximate cause of the death.

In a personal injury action damages can also be sought for mental anguish.  This is because mental agony will come under the pain and suffering endured by an injured person as a consequence of the injury.  Mental agony can be inferred from physical pain and suffering[xiv].  A jury can award damages under their discretionary power to an emotionally distressed person if it is evident from the evidence that the mental distress was caused as a result of the accident.  The amount that can be awarded is also under the jury’s discretionary powers.

In actions regarding mental anguish, damages can be actual or compensatory.  However, the damages will not be punitive [xv].  The award can be provided as a result of insult and indignity.

Judges and juries rely on physical pain and suffering, mental suffering, and several other relevant factors to determine the amount of damages in a pain and suffering action.  Fully accurate determination of the amount is not possible in such cases.  There is no standard rule to measure damages.  The jury can decide on the matter using their discretionary power.  The courts can only interfere in such cases where there is clear abuse of this discretion.  The juries mostly determine the amount based on a fair and reasonable standards, free from sentimental or fanciful standards, and based upon evidence provided.  Damages awarded should be proportionate to the injury incurred.  The jury should consider the nature and extent of injuries, the resulting pain, and the length during which the person suffered pain from the injury.  The jury should also consider the age, health habits, and condition of the injured party pre-injury as compared with his/her condition after the injury.  The judge or jury also consider the need for medical, psychological, or psychiatric treatment, the presence of physical symptoms, the loss of income, and the impact on the plaintiff’s conduct and lifestyle before apportioning the amount of damages.  The use of sedatives and drugs to relieve the injured of the pain is also prominent evidence to show the gravity of the pain and suffering.  The injured also has to live under an increased living cost when earning power is lost by the person.  This factor also helps the jury to determine the extent of damages to be awarded.

[i] Cooksey v. Atchison, T. & S. F. R. Co., 78 Cal. App. 2d 504 (Cal. App. 1947)

[ii] Foster v. Pestana, 77 Cal. App. 2d 885 (Cal. App. 1947)

[iii] Pesic v. Pezo, 2008 Ohio 5738 (Ohio Ct. App., Cuyahoga County Nov. 6, 2008)

[iv] Miller v. Swift, 42 S.W.3d 599 (Ky. 2001)

[v] Ciarrocca v. Campbell, 282 Pa. Super. 60 (Pa. Super. Ct. 1980)

[vi] Krusinski v. Chioda, 394 Pa. 90 (Pa. 1958)

[vii] Durosky v. United States, 2008 U.S. Dist. LEXIS 97383 (M.D. Pa. Dec. 1, 2008)

[viii] Gregory v. Carey, 246 Kan. 504 (Kan. 1990)

[ix] Friel v. Vineland Obstetrical & Gynecological Professional Asso., 166 N.J. Super. 579 (Law Div. 1979)

[x] Domann v. Pence, 183 Kan. 135 (Kan. 1958)

[xi] Eisele v. Rood, 275 Ore. 461 (Or. 1976)

[xii] McPherson v. Bi-State Dev. Agency, 702 S.W.2d 129 (Mo. Ct. App. 1985)

[xiii] Jones v. Flood, 351 Md. 120 (Md. 1998)

[xiv] Kaufman v. Miller, 414 S.W.2d 164 (Tex. 1967)

[xv] Georgia R. & E. Co. v. Davis, 6 Ga. App. 645 (Ga. Ct. App. 1909)