If you’ve ever experienced whiplash – an injury to the muscle and soft tissues of your neck and back – you know how troublesome the injury can be. It’s even more difficult to assign a dollar value to the pain and suffering caused by whiplash. But if you’re injured in a car accident, you’ll generally be compensated if the court finds you didn’t cause the accident and you can prove your claim.
The amount you receive varies from case to case. Typically, you’ll be paid your economic loss, including lost wages (net), future lost earnings if you can’t work as much or in the same job as before, and expenses such as chiropractic fees, taxi charges to and from the doctor’s office, and prescription costs.
It’s much harder, though, to be properly compensated for the “human loss” – the headaches, the stiffness and soreness you feel when you move, or the fact that you can’t garden or play golf anymore. The courts have therefore said that a fair amount for this human loss – your pain and suffering – is one that should make your life more endurable and be of some solace to you.
Whether a whiplash or back injury is mild or moderate depends on how the court classifies it. If your doctor describes your injury as “moderately severe”, that doesn’t mean the court must also classify it as moderate. Also, someone might have a “moderate” injury, yet still suffer a huge loss, like a missed opportunity, which could attract a substantial total award.
Very severe, chronic problems attract the highest awards, usually because of the claimant’s inability to work for a long period of time.
One of the precedent-setting court awards for a chronic pain condition arising out of a soft tissue whiplash injury was established in Anson v. Karoway. Ms. Anson was awarded $1,170,567 – including $105,000 for “human loss” or pain and suffering; $586,610 for future income loss; $100,222 for past wage loss; $91,750 for live-in assistance; $46,547 for expenses; and court costs.
Damage awards vary widely to accommodate individual facts and circumstances. Legal recovery depends upon what you have lost and a full appreciation of the value of that loss. Evaluating the “human loss,” or pain and suffering, depends upon the length and severity of your pain, activity restrictions, the extent of medical treatment, any pre-existing condition, how well you follow medical advice, and whether you do your best to seek recovery.
The bottom line is that you’ll generally recover as much of your loss as you can prove. Anyone with a significant loss, whether income, function or enjoyment, should seek legal advice.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.