Often it is asked whether or not attorneys play a guessing game as to how much money can be placed on a person’s feelings. Do we merely roll the dice or use some or other random act to determine how much money a plaintiff should receive to soothe their pain? Instead we propose that it is difficult to take something that is so subjective, such as the emotions and feelings of each individual, and try and produce an outcome that is objective, that it is fair and reasonable in the circumstances, that it may look like a guessing game is being played, but the reality is that a great deal of research and thought go into each individual case.
Unlike special damages, general damages are not quantifiable on paper. General damages essentially entail a subjective enquiry. Special damages can be proved as loss actually suffered by a person for specific monetary amount evidenced by a voucher, an invoice or a receipt. General damages are the various infringements that a person can experience through an injury, which are difficult to quantify due to their nature. General damages cannot be printed on a voucher or a receipt as the damage has either not been suffered as yet but there is a probability that the damage will be incurred (future hospital and medical expenses) or because they hold no monetary value (pain and suffering and emotional trauma). The issue then becomes, how does one quantify that which cannot be quantified?
Pain and suffering are the physical and mental pain a person consciously experiences as a consequence of the injury that they sustained. Emotional shock is experienced by a person upon witnessing certain upsetting events or scenes, or becoming aware of a certain occurrence. For example when a mother is told of the death of her child in a motor vehicle collision, she may experience emotional shock. Emotional shock is usually experienced by a person who does not sustain the injury directly.
Pain and suffering and emotional shock are very personal and subjective feelings experienced by an individual. When an attorney is claiming on behalf of a plaintiff or is being claimed from as the defendant, these emotional elements must be quantified.
In law we endeavour to use objective standards so as to be fair, reasonable and just to each person whom the law protects, but for a claim so personal and so subjectively experienced, how does one quantify such a claim. There is no scientific basis on which to base these claims and there are no mathematical equations to be used to assist us. Each person experiences pain and the loss of a loved one differently. How does one put a price on the physical and emotional pain and anguish experienced by an individual? In order to take a more objective approach to the subjective emotions experienced by an individual, we revert to case law. When assessing a claim for pain and suffering or emotional shock, we use comparable case law as a basis. A case will be researched where the injury and extenuating circumstances of the case and current claim are similar and then the amount awarded by the court in that case will be used as a basis. Other factors such as age, lifestyle, culture and nature of the injury are all taken into account so as to adjust the award accordingly. However, this is merely a starting point and as stated by the Appellate Division in Sandler v Wholesale Coal Supplier, 1941 AD, 194 at 199, “...there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty”.
Although attorneys can endeavour to uphold the law and claim or pay an amount for general damages to a claimant that is fair, reasonable and just in terms of the law, this will always provide a source of contention. It becomes difficult to claim a very subjective and personal feeling in objective monetary terms. That conversion cannot be made in this instance. Money cannot take away pain or bring a loved one back. The amount pain out in personal injury claims for pain and suffering or emotional shock is a gesture of goodwill by the law, by trying to show that the defendant is at fault while balancing that with the compassion for the plaintiff. We do not play guessing games with the emotional and physical pain claimants have suffered but rather we are attempting to do the impossible, put a price on emotions.
