Mental anguish is an element of “actual damages” that an injured person may recover in a personal injury matter.   It’s one of the intangible losses, incapable of mathematical certainty. The jury’s role as fact-finder is to evaluate the facts and determine whether the injured party suffered mental anguish, and if so, determine an appropriate amount of money to award, based on the facts presented.

Pain and suffering, loss of enjoyment of life, alteration of lifestyle, permanency of injury, are other intangible losses that an injured party may suffer and receive compensation for in a personal injury matter.   These too, vary based on each case.

Purchasing of a Mind: Champagne Bottle Case

In most serious injury or death cases, the injured party and/or family members will tell about things they see daily,  that remind them of the catastrophic incident.

In one case, a grocer created a large shelf of champagne, located near the store front. The entire shelf of champagne fell on our client.   She suffered a severe leg laceration, requiring surgery and extensive physical therapy and rehabilitation.

She told us, and the jury at trial, that every time she saw a champagne bottle, for a brief moment, it always brought her mind back to the incident.   She said she didn’t think she would ever see a champagne bottle the same way, for the rest of her life. This was something she could not evict from her mind. So in essence, the negligent grocer owned a piece of her mind, the purchase made by the grocer’s negligence and her resulting inability to forget that traumatic moment.

It is the jury’s role to place a market value on what the at-fault party has thereby purchased; the at-fault owns a piece of that person’s mind. That’s one way to think about it.

Or consider a family member of someone who has died due to the negligence of another party.   Perhaps that family member has to pass by the scene of the traumatic incident. A parent may be employed at a workplace where a family member was killed.    Or close family members may witness another family member’s death, and suffer from a lifetime of mental anguish, but not themselves be physically injured. The symbols that remind people of incidents vary with each incident.

Mental anguish is a complex injury. It may be permanent, but unlike a permanent physical impairment that bothers someone every day as they use an injured body part, mental anguish is more subtle, and can be made worse by “triggers” such as the champagne bottle, or the scene of a traumatic incident.

Life Expectancy Table

The closest thing to a mathematical way of determining damages for a permanent mental or physical injury to someone who lives through trauma, is to consider the life expectancy of the injured party.   S.C. Code 19-1-150, is South Carolina’s Life Expectancy Table. It is based on an actuarial analysis of how long men and women will typically live. For example, a man, age 53, is expected to live 30.1 years.   The court instructs the jury that if they find there is permanent injury, including mental anguish, the jury can use the injured party’s life expectancy as a basis for determining an amount of monetary compensation.

Conclusion

Determining a monetary value for mental anquish and other intangible damages will always be a challenge for judges and juries having to make these factual determinations. It is a challenge for the heart and mind, to do what is fair.   Many cases never go into suit, they are settled by agreement; but the intangible damages must be considered by attorneys, insurance adjusters, clients and mediators in arriving at a fair and equitable settlement for all tangible and intangible losses.