In many initial conversations with a case, many clients ask the question, “Well what about my pain and suffering or emotional distress…I have anxiety, loss of sleep, etc., because of all this.” Although unfortunate, these non-economic damages are not always as easy and available as many people think. In the personal injury context, if tortfeasor liability has been established (the wrongdoer’s negligent or intentional act was the proximate cause), then the injured person is entitled to compensatory damages to make them whole. Pain and suffering are a part of these damages. However, these damage awards are not guaranteed and are subjective.
Additionally, there are limitations on the right to recover pain and suffering damages. For example, the Workers Compensation Act eliminates any recovery for pain and suffering claimed by an employee injured on the job.
Other times, there is a certain threshold of damage required before these damages can be awarded. For motor vehicle matters, the resulting injury must be significant and permanent loss of an important bodily function, permanent injury, or permanent scarring or disfigurement. An exception to the above is if the harm-causing motorist was uninsured.
The amount of damages is determined by either the judge or jury. The court can reduce or add to the pain and suffering damage number provided by the jury.
For a jury to give a plaintiff damages for pain and suffering, the following considerations must be made:
(1) what injury the plaintiff received; (2) the pain-producing characteristics of the injury; (3) the degree of intensity of the pain; (4) the duration of the pain; and (5) whether the plaintiff should receive present compensation for future damages. Braddock v. Seaboard A.L.R. Co., 80 So. 2d 662 (Fla. 1955).
An award can be for past, present, and even future pain and suffering damages.