What is Pain & Suffering & What Does it Include?

Pain and Suffering (also referred to as general damages) is the legal term for the physical and emotional stress caused from an injury.  Essentially, pain and suffering is comprised of the Harms & Losses that a person has experienced as a result of a traumatic incident caused by the negligence or wrongful conduct of another person or entity.

 Some damages that might be under this category would be: aches, temporary and permanent limitations on activity, potential shortening of life, depression or scarring. When filing a lawsuit as a result of an injury, it is common for someone to seek money both in compensation for actual money that is lost and for the pain and stress associated with virtually any injury.

In a suit, pain and suffering is part of the "general damages" section of the claimant's claim, or, alternatively, it is an element of "compensatory" non-economic damages that allows recovery for the mental anguish and/or physical pain endured by the claimant as a result of injury for which the plaintiff seeks redress.

Apart from money damages awarded in trial, money damages are also given informally outside the judicial system in mediations, arbitration (both of which may be court connected or non-litigated claims) as well as in routine insurance settlements. Individual claimants or those represented by lawyers often present demands to insurers to settle for money.

These demand for bodily injury compensation monies often set out damages that are similarly used in the court litigated pleadings. Demands are usually written summaries of a claimant's medical care and the facts which resulted in the injury.  TRYK LAW, Accident Injury Attorneys will gather all relevant information and facts in order to completely understand your accident related medical conditions and factor that into calculating your pain and suffering. 

Judicial Counsel of California Jury Instruction 3905(a)

“Noneconomic Damages are best described in Judicial Council of California Civil Jury Instruction 3905(a), entitled Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage), which sets forth the following guidance in the expanded instructions.

In general, courts have not attempted to draw distinctions between the elements of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the unitary concept of ‘pain and suffering’ has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. But the detriment, nevertheless, is a genuine one that requires compensation, and the issue generally 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.’ ” (Capelouto v.Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893 [103 Cal.Rptr. 856, 500 P.2d 880], internal citations and footnote omitted.) 

“The general rule of damages in tort is that the injured party may recover for all detriment caused whether it could have been anticipated or not. In accordance with the general rule, it is settled in this state that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.” (Crisci v. The Security Insurance Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173], internal citations omitted.)

The following items of noneconomic damage a Plaintiff is entitled to are the following:

1. Inconvenience;

2. Physical and emotional pain;

3. Stress;

4. Loss of enjoyment of life;

5. Inability to complete responsibilities;

6. Inability to do things you enjoy.

This article has hopefully provided you with a little background on what exactly pain and suffering includes and how it may be factored into your case or trial by jury.  If you have been involved in an accident that has caused you injury and it was not your fault, in most cases you are entitled to Pain & Suffering i.e., General Damages.


Authored by, Benjamin P. Tryk, Trial Attorney, Tryk Law-Accident Injury Attorneys (559) 850-3240 or visit us online at www.tryklaw.com