Can I sue for Damages for my Chronic Pain?

Posted by Stevenson Whelton MacDonald & Swan
December 10, 2018

Many accident victims suffer from long-term or chronic pain after they are injured in a car accident and sometimes, the pain continues long after the initial injury appears to have healed.  But, chronic pain is not limited to injuries caused by a major motor vehicle accident; in fact, accident victims injured in seemingly minor accidents or fender-benders may also develop debilitating, ongoing pain.

One such case, Everding v. Skrije, arose after a woman sustained a soft-tissue/whiplash injury in a low-speed collision, while she was a front-seat passenger. The woman was initially advised by a lawyer, that the absence of a visible or objective injury meant that she didn’t have a case for damages.  However, the accident victim suffered with ongoing pain for four years until she was eventually diagnosed with a chronic pain condition.  During that time, she sought treatment from her family doctor and underwent many treatments, including chiropractic treatment, physiotherapy, pain-killers and anti-depressants.  One year after her chronic pain diagnosis, an MRI scan showed two areas of disc bulge in her cervical spine.  Then, seven years after her accident, the injured woman commenced a lawsuit for damages against the at-fault driver. On Appeal, the Court found that her claim could go ahead and was not statute-barred for being commenced too late, as the plaintiff did not discover that she had a condition that met the threshold of impairment of a serious, permanent and important function until she received the results of her MRI.

Under Ontario law, if you seek damages for pain and suffering resulting from a car accident, you are entitled to such damages only if your injury meets the ‘severity threshold’ defined under Section 267.5 of the Insurance Act.  Under the Act, you must have sustained a permanent, serious impairment of an important physical, mental or psychological function, or have suffered a permanent, serious disfigurement.

Therefore, the three key criteria in assessing your impairment are: serious, important and permanent.  A ‘serious’ impairment is one that substantially interferes with your ability to continue to work at your job, to train in your career, or function in day-to-day activities.  An ‘important’ function is essentially a function that is necessary in performing the essential tasks of your job, training in your current field, day-to-day activities or personal care.  And, in order to be considered ‘permanent’, the impairment must be continuous since the injury occurred and likely to continue indefinitely, based on the medical evidence presented for your case.

Anyone who's struggled with ongoing pain knows that it can have a substantial impact on their ability to perform household tasks, their job and activities that they previously enjoyed.  Constant pain often leads to a loss of interest in being involved in social situations, family events and sports, and sufferers are more likely to be irritable and have difficulty concentrating when they’re always in pain.  It’s no wonder that chronic pain is also frequently associated with psychological conditions such as depression.  And, pain interferes with the ability to sleep, which leads to fatigue and listlessness, and can contribute further to depression and anxiety. 

Like other physical or psychological injuries that may result from an accident, chronic pain is clearly a legitimate loss and as such, accident victims can claim damages in a civil lawsuit against the at fault driver. In addition to monetary losses they experienced, such as lost income and rehabilitation costs, an accident victim suffering from chronic pain may seek non-pecuniary damages for their loss of enjoyment in life and their pain and suffering.  

The amount of damages you are likely to receive for chronic pain generally relates to the severity of your injury and how much it effects your life; but the amount of damages to be awarded for pain and suffering is capped by Canadian Courts.  On the high end of pain and suffering awards in Ontario, in Degennaro v. Oakville Trafalgar Memorial Hospital, the Court awarded a woman $175,000 in non-pecuniary damages for pain and suffering (in addition to substantial awards for loss of income and future care costs) after the woman was injured on a hospital bed that collapsed, while accompanying her sick child. The fall caused a fracture to the woman’s sacrum and led to severe and long-term pain that effected almost every aspect of her life. She became unable to participate in any significant physical activity, and eventually developed fibromyalgia (wide-spread pain, often accompanied by fatigue, muscle stiffness and hyper-sensitively to pain).

As noted by Justice Gray in Degennaro, chronic pain is real, but because it has no clear cause and often has few objective symptoms, it is almost exclusively determined by symptoms described by the injured person.  If you were injured in a car accident or another traumatic event, it’s in your best interests to seek timely counsel from a skilled personal injury lawyer at Stevenson Whelton MacDonald & Swan.  We well understand the complexity of chronic pain syndrome and the legal and medical evidentiary foundation required in building a strong case for compensation. 

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.