Pain and suffering

For other uses, see Pain and Suffering (disambiguation).

Pain and suffering (also called non-economic loss or general damages) is a legal concept referring to the physical and emotional distress sustained by a person as a result of injury or wrongdoing. It forms a component of general damages, intended to compensate claimants for subjective, non-pecuniary harm not captured by medical costs, lost income, or other quantifiable economic losses.

Definition and scope

Pain and suffering encompasses two interwoven dimensions:

• Physical pain — the sensory experience of bodily injury (ache, sharp pain, loss of mobility, intrusive treatments).
• Emotional or psychological distress — such as anxiety, depression, humiliation, loss of enjoyment of life, or mental anguish.

Because of its inherently subjective nature, courts rely on precedents, expert medical and psychological evidence, functional assessments, and judicial discretion to quantify such damages.

Assessment factors

When assessing pain and suffering, courts typically consider:

1. Severity, duration, and prognosis of the injury
2. Intensity and invasiveness of medical treatment, surgeries, rehabilitation
3. Permanent impairment, scarring, disfigurement, limitations in daily function
4. The age, life expectancy, personal circumstances, and lifestyle of the claimant
5. Preexisting conditions, contributory negligence, and causation issues
6. Benchmarks from analogous cases in the same or comparable jurisdictions

Judges often use comparative awards or verdict databases as reference points, adjusting upward or downward based on individual circumstances.

Settlement size, calculation methods, and variation

Because pain and suffering is not directly measurable, a variety of methods are used to estimate or negotiate a monetary value. Common approaches include:

• Multiplier method: economic damages (e.g. medical bills, lost wages) are multiplied by a factor (e.g. 1.5 to 5) depending on severity, permanence, and risk.
• Per diem method: a daily rate is assigned to the claimant’s suffering (e.g. $X per day) and multiplied by the number of days of recovery or until “maximum medical improvement.”
• Comparative verdict method: lawyers and courts use historical verdicts and settlements in similar cases to guide their valuation.

In practice, settlement awards or jury verdicts for pain and suffering vary enormously:

• Minor soft tissue or whiplash injuries often produce awards of only a few thousand dollars (or equivalent)
• Catastrophic injuries (brain injuries, spinal cord injuries, amputations, severe disfigurement) may lead to multi-million awards
• Variation arises due to differences in jurisdiction, jury attitudes, plaintiff presentation, expert quality, insurer exposure, and local legal culture

Jury verdicts for pain and suffering are notoriously unpredictable and may depend on social, political, and economic factors within the forum jurisdiction. Thus, lawyers frequently negotiate within a “range” rather than expecting a fixed number.

Relation to general and special damages

Pain and suffering is a component of general (non-pecuniary) damages — the “intangibles” — as opposed to special (pecuniary) damages (e.g. past/future medical expenses, lost earnings). The distinction is often summarized: economic losses are measurable; non-economic losses (pain, grief, loss of enjoyment) are not.^[1]

Limitations, caps, and jurisdictional constraints

Many jurisdictions impose legal constraints on awards for non-economic loss, including:

• Statutory caps on pain and suffering (especially in medical malpractice or wrongful death cases)
• Procedural thresholds or gating mechanisms (minimum severity, impairment or percentage thresholds)
• Guidelines or schedules used by insurers (though not binding on courts)
• Reduction for contributory negligence, preexisting conditions, or causation disputes

These constraints act as filters or ceilings on non-economic recovery rather than direct measurements of harm.

Thresholds and entitlement in selected jurisdictions

Because pain and suffering is inherently subjective and non-pecuniary, some legal regimes require a minimum severity or impairment threshold before allowing recovery. Below is how such thresholds operate in certain common law systems.

New South Wales, Australia

In NSW, statutory regimes impose thresholds or gates especially in personal injury, motor accidents (CTP), and workers compensation contexts.

Civil injury / general negligence claims (non-motor, non-workers comp)

Under the Civil Liability Act 2002 (NSW), section 16 states:

> “No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15 % of a most extreme case.” ^[2]

If that threshold is met, damages are calculated by reference to a table as a proportion of a maximum non-economic loss amount, indexed and rounded. ^[3]

Motor Accident (CTP / third-party) claims

Under the Motor Accident Injuries Act 2017 (NSW):

• Section 4.11 provides that no non-economic loss may be awarded unless the claimant has a permanent impairment exceeding 10 % whole person impairment (WPI). ^[4]
• Section 4.4 excludes damages for *threshold injuries* (i.e. injuries that do not satisfy set diagnostic or functional criteria). ^[5]
• The Motor Accident Guidelines (Part 5) elaborate how to assess whether an injury qualifies above the threshold — especially for soft tissue or psychological injuries — using history, examinations, diagnostics, and expert opinion. ^[6]

Workers compensation / work injury damages

Under the NSW workers compensation framework:

• A worker seeking Work Injury Damages (modified common law) must satisfy, among other criteria, a minimum 15 % whole person impairment threshold as assessed by an approved specialist. ^[7]
• The statutory workers compensation scheme generally does not permit ordinary workers compensation payments to include non-economic loss (pain and suffering), except in restricted categories (e.g. exempt workers) or via work injury damages. ^[8]
• The NSW impairment guidelines adopt modified versions of the AMA Guides (especially AMA5) for rating permanent impairment in workers compensation claims. ^[9]

Notes and caveats

• The 10 % WPI threshold (motor) and the 15 % WPI threshold (work injury damages) are procedural gates, not assessments of actual suffering.
• A claimant may still endure significant pain or distress but fail to recover non-economic damages if the impairment falls below the statutory threshold.
• The 15 % threshold under the Civil Liability Act for general negligence claims (measured as a proportion of a “most extreme case”) is conceptually distinct from WPI thresholds and operates differently.
• Legislative amendment or court decisions could change thresholds and caps over time, so periodic review is necessary.

United States

In the United States, pain and suffering awards are a routine part of tort litigation. Empirical studies have found that non-economic damages often constitute the majority of total recovery in serious injury cases.

• A RAND Institute study found that pain and suffering accounted for roughly half of all compensatory damages in jury trials involving personal injury.^[10]
• Some U.S. states impose statutory caps on non-economic damages, particularly in medical malpractice cases (e.g. California’s MICRA cap of $250,000, Virginia’s tiered caps).^[11]
• Jury unpredictability has been noted in scholarly literature, with social, cultural, and geographic variation producing divergent results even for similar injuries.^[12]

American appellate courts may remit (reduce) jury awards deemed “grossly excessive,” applying standards such as proportionality to economic damages or comparison with similar verdicts.

United Kingdom

In England and Wales, pain and suffering is compensated under the head of general damages, alongside “loss of amenity.” The leading reference is the Judicial College Guidelines (JCG), published in successive editions, which provide bracket figures for a wide range of injuries.^[13]

• The JCG tables list guideline ranges for injuries by category (orthopaedic, head, psychiatric, sensory, scarring, etc.), factoring severity and long-term impact.
• Courts often adopt these brackets as starting points, but retain discretion to adjust based on particular facts.
• Loss of amenity — the diminished ability to engage in ordinary pursuits and pleasures — is closely linked with pain and suffering and is typically assessed together.
• The Court of Appeal plays an active role in reviewing and harmonising awards, ensuring consistency across England and Wales.^[14]

Scotland and Northern Ireland maintain their own assessment practices, though English JCG figures often provide persuasive guidance.

See also

• Damages
• Tort law
• Personal injury
• Workers’ compensation

References

1. "Judicial Commission of NSW – Civil Trials Bench Book: Damages". Retrieved 1 October 2025.
2. "Civil Liability Act 2002 (NSW) s16". Retrieved 1 October 2025.
3. "Civil Liability Act 2002 (NSW) – full text". Retrieved 1 October 2025.
4. "Motor Accident Injuries Act 2017 (NSW) s4.11". Retrieved 1 October 2025.
5. "Motor Accident Injuries Act 2017 (NSW) s4.4". Retrieved 1 October 2025.
6. "Motor Accident Guidelines – Part 5". State Insurance Regulatory Authority (NSW). Retrieved 1 October 2025.
7. "Work Injury Damages – Workers Compensation NSW". Retrieved 1 October 2025.
8. "Comparison of workers' compensation arrangements in Australia and New Zealand – Table 5.3". Safe Work Australia. Retrieved 1 October 2025.
9. "NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment" (PDF). State Insurance Regulatory Authority (NSW). Retrieved 1 October 2025.
10. Kritzer, Herbert (2000). "Measuring Pain and Suffering". Law & Society Review. 34 (1): 57–78. doi:10.2307/3115115.
11. "Medical malpractice damages caps by state". National Conference of State Legislatures. Retrieved 1 October 2025.
12. Bovbjerg, Randall; Sloan, Frank A.; Blumstein, James F. (1989). "Valuing Life and Limb in Tort: Scheduling Pain and Suffering". Northwestern University Law Review. 83 (4): 908–976.
13. Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (16th ed.). Oxford University Press. 2022. ISBN 9780192867629.
14. Harris, Donald (1986). "Damages for Non-Pecuniary Loss in England, Canada and Australia". Oxford Journal of Legal Studies. 6 (2): 213–234. doi:10.1093/ojls/6.2.213.