Written by: David Cossalter When most people hear “pain and suffering,” they think of the immediate physical impact of an injury: the broken bones, the hospital stays, the recovery period. But in personal injury law, this term carries a much broader meaning that extends well beyond physical wounds.
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Pain and suffering covers the lasting emotional, psychological, and lifestyle impacts that continue long after visible injuries heal. It recognises that an injury doesn’t just damage your body. It can disrupt your career, strain your relationships, rob you of independence, and fundamentally alter how you experience daily life.
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In this article, we break down what pain and suffering means in legal terms, when you can claim it, how it’s assessed, and what evidence strengthens your case.
What is pain and suffering?
Pain and suffering refers to the non-economic damages you experience as a result of an injury. These are the physical, emotional, and psychological effects that cannot be calculated simply by adding up medical bills or lost wages.
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Unlike economic damages (measurable financial losses), pain and suffering addresses the human cost of injury:
- How much harder is your life now?
- What have you lost that can’t be replaced with money?
- How has your capacity for joy, connection, and independence been diminished?
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In legal terms, pain and suffering represents general damages: compensation for losses that don’t have receipts but are nonetheless real and devastating.
What pain and suffering includes
Pain and suffering is not a single experience but rather a collection of impacts that vary significantly between individuals and injuries. It can include physical, emotional and cognitive impacts.
| Physical impacts |
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| Psychological and emotional impacts |
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| Lifestyle and quality of life impacts |
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| Cognitive impacts |
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Key takeaway
Pain and suffering is highly individual. Two people with similar physical injuries may experience vastly different emotional and psychological impacts. The law recognises this by assessing each person’s unique circumstances rather than applying a one-size-fits-all formula.
When can you claim pain and suffering?
Not every injury automatically qualifies for pain and suffering compensation. Australian law imposes specific requirements and thresholds that vary by state and claim type. Understanding these criteria helps you determine whether your circumstances warrant a claim.
Types of claims that include pain and suffering
| Motor vehicle accidents | Injuries sustained as a driver, passenger, pedestrian, or cyclist in car, motorcycle, truck, or other vehicle accidents caused by another party’s negligence. |
| Workplace accidents | Injuries occurring at work due to employer negligence, unsafe working conditions, or inadequate safety measures. Note that workers’ compensation has specific thresholds for pain and suffering claims. |
| Public liability incidents | Injuries sustained on someone else’s property or in public spaces due to hazardous conditions, inadequate maintenance, or negligent conduct. |
| Medical negligence | Injuries resulting from substandard medical care, surgical errors, misdiagnosis, medication mistakes, or failure to obtain informed consent. |
| Institutional abuse | Sexual, physical, or psychological injuries caused by another person’s deliberate actions. |
| Nervous shock | Psychological trauma suffered by witnessing a loved one’s serious injury or death, even if you weren’t physically harmed yourself. |
| Wrongful death | Family members and close loved ones of someone killed due to another party’s negligence may claim compensation for their grief and loss of companionship. |
Who can claim pain and suffering?
- Direct victims: If you sustained injuries in an accident or incident, you can claim pain and suffering as part of your compensation.
- Witnesses to trauma: If you witnessed a close family member suffer serious injury or death and developed psychological trauma as a result, you may claim for nervous shock.
- Family members of deceased victims: When someone dies due to another party’s negligence, immediate family members can claim compensation for their emotional suffering and loss of companionship.
Important note
You’ll typically need a formal medical or psychiatric assessment documenting your injuries and their ongoing effects to qualify for pain and suffering compensation. Self-reported symptoms alone are rarely sufficient. Professional medical evidence is essential.
What does pain and suffering cover?
Pain and suffering manifests differently for each person and injury type. Courts and insurers examine claims on a case-specific basis, but certain factors consistently appear across personal injury cases.
| Impact category | What it includes | Real-world scenario |
|---|---|---|
| Ongoing physical discomfort |
| A construction worker with chronic back pain can no longer lift his young children or play sports he once enjoyed. |
| Emotional and psychological effects |
| A car accident survivor experiences panic attacks while driving and avoids highways completely. |
| Reduced quality of life |
| An avid runner whose knee injury prevents her from participating in social sports activities. |
| Sleep disruption |
| A workplace accident victim wakes repeatedly with nightmares about the incident, leading to chronic fatigue. |
| Cognitive difficulties |
| A head injury victim struggles to focus at work, forgets important appointments, and can no longer manage complex tasks. |
| Relationship strain |
| A disabled accident victim experiences tension with family members and withdraws from social events. |
Pain and suffering in context
Consider two workers injured in separate accidents:
| Worker A | Suffers a broken arm requiring surgery and three months off work. He experiences pain during recovery but returns to full function with no lasting limitations. His physical pain resolves completely. |
| Worker B | Suffers a similar broken arm but develops Complex Regional Pain Syndrome, a chronic pain condition. Years later, he continues experiencing severe pain, can no longer work in his trade, struggles to sleep, has developed depression due to chronic pain, and requires ongoing pain management. |
Both had the same initial injury, but Worker B’s pain and suffering is dramatically greater due to lasting physical, emotional, and lifestyle impacts. Compensation reflects this difference.
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How is pain and suffering measured?
Unlike economic damages with clear dollar amounts, pain and suffering requires translating subjective human experiences into compensation figures. Australian states use different frameworks to achieve consistency while respecting individual circumstances.
Evidence that strengthens your claim
| Evidence type | Why it matters | What to include |
|---|---|---|
| Medical assessments | Provides objective documentation of injury severity and lasting effects. | Reports from treating doctors, specialists, and rehabilitation professionals detailing diagnosis, treatment, prognosis, and permanent impairments. |
| Psychiatric evaluations | Confirms psychological impacts and their connection to the injury. | Formal psychiatric assessments diagnosing conditions like PTSD, depression, or anxiety and explaining causation. |
| Impact on daily life documentation | Demonstrates how your life changed before and after. | Journal entries describing pain levels, activities you can no longer do, sleep quality, emotional struggles, and daily limitations. |
| Employment records | Shows economic and psychological impact on your career. | Documentation of missed work, reduced performance, inability to return to your profession, or forced career changes. |
| Personal statements | Provides the human story behind medical reports. | Your detailed account of physical pain, emotional distress, relationship changes, and lost life enjoyment. |
| Witness statements | Corroborates your account with outside observations. | Family members, friends, or colleagues describing changes they’ve witnessed in your behaviour, mood, capabilities, and engagement with life. |
| Photographic evidence | Creates visual record of struggles. | Photos or videos showing physical limitations, assistive devices needed, visible scarring, or inability to participate in previous activities. |
Expert tip
Start documenting immediately after your injury. Keep a daily or weekly journal noting pain levels, emotional state, sleep quality, activities you couldn’t do, and how your injury affected interactions with family and friends. This contemporaneous record is far more credible than trying to recall details months or years later.
State and territory thresholds for pain and suffering
Laws differ between states and territories in Australia, and these differences can affect both the evidence you need to provide and the severity of injury required to qualify for certain claims. It’s important to be aware of these variations.
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For example, in New South Wales, damages for pain and suffering are capped, with the maximum amount currently set at approximately $804,000. In Victoria, the maximum amount for pain and suffering is $577,050, and this figure is indexed annually. Other states apply different thresholds, caps, and assessment methods, which can significantly influence the value of a claim.
| State/Territory | Assessment method | Threshold requirements | Key considerations |
|---|---|---|---|
| New South Wales | Most Extreme Case (MEC) percentage scale | 15% of MEC | Applies across motor vehicle, workplace, public liability, and medical negligence claims |
| Queensland | Injury Scale Value (ISV) 0-100 points | ISV ≥ 6 (Civil Liability) | Different thresholds apply for workers’ compensation |
| Victoria | Case-by-case judicial assessment | Injury must be “significant” | Medical assessment determines impairment level; Transport Accident Commission (TAC) has specific “serious injury” threshold for motor accidents |
| Australian Capital Territory | Case-by-case judicial assessment | No fixed statutory threshold | Courts examine injury severity and impact without predetermined minimums |
Why thresholds exist
These thresholds serve important policy purposes. They prevent compensation systems from being overwhelmed by minor injuries while ensuring people with genuinely life-altering injuries receive appropriate recognition. Minor bruising, temporary discomfort, or brief emotional upset don’t meet these thresholds. The injury must significantly impact your life.
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Example: In NSW, a minor soft tissue injury causing discomfort for several weeks likely falls below the 15% MEC threshold. However, chronic pain syndrome developing from the same injury type, preventing you from working and requiring ongoing pain management, may well exceed the
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Challenges you may face proving pain and suffering
Pain and suffering claims face unique obstacles that economic damage claims don’t encounter. Understanding these challenges helps you prepare stronger evidence.
1. Meeting legal thresholds
| Challenge | Different states impose varying severity requirements. Your injury’s personal consequences may be significant to you but fall below the legal threshold for compensation. |
| Solution | Obtain comprehensive medical evaluations from appropriate specialists. A thorough psychiatric assessment may reveal your injury meets thresholds even when it initially appeared borderline. |
2. Subjectivity of suffering
| Challenge | Financial losses have concrete documentation: receipts, invoices, pay stubs. Psychological and emotional distress is intensely personal and harder to quantify objectively. |
| Solution | Combine medical evidence with personal documentation. Your journal entries describing daily struggles, witness statements from family observing your changed behaviour, and employment records showing performance decline together create an objective picture of subjective suffering. |
3. Credibility concerns
| Challenge | Because pain and suffering can’t be proven with X-rays, insurers and defendants may question whether your suffering is genuine or exaggerated. |
| Solution | Consistency is crucial. Ensure your statements to doctors, psychiatrists, insurers, and lawyers align with each other and with your actual behaviour. Exaggeration undermines credibility, while honest, consistent reporting strengthens it. |
4. Pre-existing conditions
| Challenge | If you had prior injuries, psychological conditions, or chronic pain before the incident, the defendants will argue your current suffering isn’t entirely caused by their negligence. |
| Solution | Acknowledge pre-existing conditions openly but document how the new injury worsened them. Medical evidence showing the difference between your pre-injury and post-injury functioning establishes causation. |
5. Delayed symptoms
| Challenge | Some psychological impacts don’t manifest immediately. PTSD symptoms may emerge months after an accident, making causation harder to prove. |
| Solution | Seek medical attention even if symptoms develop gradually. Medical records showing symptom progression and expert testimony explaining delayed psychological responses establish the connection between the incident and your current condition. |
Real examples of pain and suffering claims
Understanding how pain and suffering manifests in real cases helps clarify what qualifies for compensation and what outcomes are possible.
Case 1: Sustained institutional abuse
A woman who became a ward of the state at age 11 in 1988 was placed in foster care where she suffered severe physical, emotional, and sexual abuse from both her foster carer and a male relief worker. This trauma had profound, lasting effects on her adult life, including:
- Inability to maintain stable employment
- Difficulty forming and maintaining healthy relationships
- Chronic anxiety, depression, and PTSD
- Trust issues affecting all areas of her life
- Ongoing psychiatric treatment requirements.
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An expert psychiatrist in Victoria documented how this childhood trauma created permanent psychological damage that would affect her throughout her lifetime. The comprehensive psychiatric evidence, combined with her personal testimony and witness statements from family members, supported a substantial settlement recognising the catastrophic impact on her life.
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Key factors: Long-term psychological impacts, expert psychiatric testimony, and clear causation between abuse and ongoing suffering.
Case 2: Supermarket slip with lasting complications
A 47-year-old woman slipped on a wet floor in a Western Sydney supermarket, sustaining a serious knee injury. What began as a single injury cascaded into multiple complications.
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Her immediate impacts included:
- Torn ligaments requiring surgery
- Extended time off work causing financial stress
- Intensive physiotherapy and rehabilitation.
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This developed into long-term complications:
- Overcompensating with her other knee led to arthritis
- Chronic pain requiring ongoing pain management
- Medical advice indicated future knee replacement surgery likely necessary
- Permanent mobility limitations affecting daily activities
- Loss of ability to participate in bush walking and gardening she previously enjoyed.
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Investigation revealed the supermarket’s inadequate cleaning protocols contributed to the hazardous condition. Medical reports documented both current suffering and anticipated future impacts, supporting compensation for immediate pain and suffering plus anticipated future decline in quality of life.
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Key factors: Medical evidence of permanent injury, expert testimony about future complications, and clear negligence by the property owner.
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Case 3: A wife becoming her husband’s carer
David suffered severe leg injuries when a bollard fell on him at a remote work site. The isolation of the location meant he endured intense pain for hours before receiving medical treatment. Following surgery, the injury’s impact extended far beyond physical healing.
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The physical impacts included:
- Severely limited mobility for months
- Ongoing pain and fear of re-injury
- Inability to return to his previous work.
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The relationship and emotional impacts included:
- His wife Paula became his full-time carer for the first month
- She assisted with intimate personal care, including toileting
- The shift from spouse to caregiver strained their marriage
- David experienced loss of dignity and independence
- Both developed anxiety about future injuries
- Their social life deteriorated as David withdrew from activities.
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Their legal claim addressed not just David’s physical injuries but the emotional toll on both partners and the fundamental change to their relationship dynamic. Evidence included statements from both David and Paula, psychiatric evaluations addressing their emotional distress, and testimony from friends who observed the marriage strain.
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Key factors: Evidence of emotional and relationship impacts beyond physical injury, statements from both the injured party and the affected family member, documentation of lifestyle changes.
