Following a serious injury, it can cost a great deal of money to aid you back to recovery. State governments across Australia maintain schemes to determine the appropriate compensation for economic loss experienced as a result of an injury or illness due to someone else’s negligence. In addition, pain and suffering claims can be made to compensate you for non-economic loss.
This article explains how pain and suffering is calculated and what payout you may expect if you’re considering pursuing this type of claim for a personal injury.
Accident compensation: Economic and non-economic loss
Payouts following a personal injury fall into two categories: economic and non-economic loss, also referred to as general damages or pain and suffering.
Economic-loss payments are calculated based on the monetary impact of your injuries and may cover past and future lost income, rehabilitation and medical expenses. Non-economic loss is associated with a decrease in a quality of life post-injury and tends to be more ambiguous than economic losses, since psychological impairment is more difficult to qualify objectively — a hospital bill is more simple to measure, for example, compared to the extent of depression stemming from an injury.
Despite its subjectivity and reliance on self-reporting, each Australian state has its own systems for accurately measuring and compensating pain and suffering, with the type of personal injury also coming into play. You may be able to make a claim for pain and suffering compensation if you’ve been injured as a result of:
- Medical negligence or malpractice.
- An accident that happened in a public place.
- A car accident.
- A work-related injury.
Each of these four categories comes with its own distinct legislation and compensation thresholds. While we’ll look into how they differ from one another below, consider reaching out to a personal injury lawyer for personalised legal advice.
What qualifies as pain and suffering?
Extending beyond the physical impact of an injury, pain and suffering considers the claimant’s emotional distress — considered a psychological injury. While examples vary significantly, here are common forms of general damages:
- Prolonged pain and discomfort endured due to the injury.
- Mental illnesses, commonly including depression, anxiety and/or PTSD.
- Impairment to the relational and social areas of the injured person’s life.
- Sleep disturbances.
Pain and suffering also includes any cognitive impairment from the injury, which may affect memory and concentration, as well as the ability to manage regular tasks. Across all Australian states, a medical examination is required — generally from a psychiatrist — to assess the extent of these psychological and cognitive impacts. The psychiatrist’s assessment serves as evidence in court, providing an objective evaluation of the claimant’s pain and suffering.
How is pain and suffering calculated in Australia?
The amount you may be compensated depends, in part, on where you’re located.
New South Wales
The amount you’re compensated for in New South Wales depends on how your pain and suffering compares to the ‘Most Extreme Case’ (MEC) — this is true of each of the four categories of personal injury. The MEC is considered to be the most extreme of any possible injury alternatives and is weighed on a percentage scale.
General damages of less than 10% of the MEC aren’t compensated for, whereas on the other end of the spectrum, the compensation payout for 91% to 100% of the MEC may be between $641,500 and $705,000. There is a degree of subjectivity in determining how your injury weighs compared to the MEC: A personal injury lawyer will navigate the ambiguity, advocating for your rights to ensure you’re maximally compensated.
Two key pieces of legislation that apply to pain and suffering in Queensland:
- Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (WCRR): Generally covers workplace personal injury accidents.
- Civil Liability Regulation 2014 (Qld) (CLR): Generally covers all other forms of personal injuries, including those stemming from a public place, medical negligence or a vehicle accident.
Both of these pieces of legislation use what’s called the Injury Scale Value (ISV) to categorise and measure pain and suffering, whereby the degree of impairment is given a ‘score’ of between 0 and 100 — with 100 representing the gravest of general damages. The higher the ISV, the more compensation you may be entitled to.
Notably, if you have more than one psychological impairment, the combined ISV scores are not simply added together. The Court will determine what your ‘dominant injury’ is, referring to the injury with the highest ISV. While the dominant injury plays a central role in determining how much compensation you may be owed, non-dominant injuries are also holistically factored in.
There is no cap on how much you may be compensated for under common-law assessment. This means the Court considers precedent and case law to determine appropriate compensation amounts, taking into consideration the specifics of individual cases.
Under WCRR, however, the maximum compensation payout as of 1 July 2022 is $400,655, while the maximum payout under CLR — as of the same period — is $414,000.
The Wrongs Act 1958 governs the way personal injury compensation claims — and their associated pain and suffering criteria — are conducted in Victoria. Under this legislation, the Court considers various circumstantial factors to determine the appropriate amount of compensation, including:
- The age of the injured person and their credibility in providing first-hand evidence.
- Medical evidence.
- The claimant’s prior injuries — both mental and physical.
The maximum amount of compensation for pain and suffering in Victoria is $644,640, though compensation is determined on a case-by-case basis. In the past, the Court steered away from considering precedent in the assessment of the claimant’s general damages. But today, judges are increasingly drawing on past cases for guidance — though they don’t hold the same weight as binding precedents (meaning judges aren’t obliged to align with the outcomes of past related cases).
The Australian Capital Territory
Regulated by the Civil Law (Wrongs) Act 2002, compensation rates in the Australian Capital Territory are determined by a judge, factoring in the injury’s severity and its impact on the claimant’s ability to work, socialise and enjoy life more generally. The judge further considers the claimant’s age, future economic loss and earning capacity, and prior injuries, among other relevant factors.
Past cases of a similar nature will also be brought into consideration to ensure consistency and fairness. Consistency and fairness are further upheld by the ACT Civil and Administrative Tribunal (ACAT), which serves as an independent forum — outside of the traditional Court system — where claimants can bring their disputes forward in a less formal, more streamlined manner.
Like the Court, the ACAT carefully evaluates the evidence presented by all parties involved and makes compensation decisions based on the merit of each case.
Maximising Your Pain and Suffering Compensation
Pain and suffering’s ambiguity doesn’t mean it’s any less serious than the physical impacts of an injury. The frameworks we’ve discussed are in place due to the recognition of the gravity of general damages, acknowledging the psychological and cognitive toll.
To best navigate the subjectivity of these cases and to get you the compensation you’re owed, expert legal representation can go a long way. At GMP Law, we’re prepared to aid you along each step of the legal journey, rigorously advocating for your rights.
With over 25,000 victories and counting, our team of personal injury law experts have the experience to handle even the most complex of pain and suffering compensation claims — at no expense to you personally, due to our no win, no fee policy.
To learn more about how GMP Law can help you pursue a personal injury claim, click here to contact our team today, or call us for a confidential chat on 1800 004 878.