The general principle of damages is that a plaintiff who has been injured by the negligence of a defendant should be awarded such sum of money as will (as nearly as possible) put them in the same position as if they had not been injured.
A damages claim is not a free-ride, or a ticket to become an instant millionaire. The greater the injury’s impact to one’s life, the higher the damages. If an injury is temporary or largely insignificant, there may be minimal or no damages to be claimed at all – even if another party was at fault.
Heads of Damage
Those who are injured due to the negligence of someone are often entitled claim for the following heads of damage:
- General Damages (Pain and Suffering) – a claim to receive a lump sum payment for the injured person’s pain, suffering, and loss of amenity of life.
- Past Economic Loss – a claim to recover the income you were not able to generate because you were unable to work while you were injured and receiving treatment. Any superannuation benefits you’ve missed out on due to not working is also claimable.
- Future Economic Loss – a claim to receive a lump sum payment in advance to compensate for the income you are no longer capable of earning because of your injuries. This is often the largest head of damage. Any superannuation benefits you’re expected to miss out on in the future is also claimable.
- Past Care & Assistance – a claim to recover the care and assistance you received (or expenses you incurred to pay someone to assist you) because of your injuries. Qualifying criteria usually applies to this head of damage, particularly if the assistance provided to you was on a gratuitous (free) basis from friends and family.
- Future Care & Assistance – a claim to receive a lump sum payment in advance for the ongoing care and assistance you will require because of your injuries. Qualifying criteria usually applies to this head of damage.
- Past Out of Pocket Expenses (Special Damages) – a claim to recover your expenses already paid because of your injuries, such as medications, bandages, medical bills, etc.
- Future Out of Pocket Expenses (Special Damages) – a claim to receive a lump sum payment in advance for the future medical treatment you will require.
If you deal directly with an insurer, they will intentionally not tell you about your entitlements to the above heads of damage. We have even seen insurers intentionally mislead injured victims about their rights and entitlements. For this reason, it is incredibly important not to attempt to negotiate with the insurer directly.
There are also other heads of damage beyond the list provided above – but for the purpose of this article we are considering only General Damages (previously known as Pain and Suffering). This head of damage typically only forms a small percentage of most personal injury claim values.
General Damages – Pain and Suffering
The amount claimable for General Damages is determined by the legislation that applies to your Queensland personal injury claim.
- If you were injured at work, the Workers Compensation and Rehabilitation Act (WRCA) applies with damages determined by Sch 12 of the WCRA.
- If you were injured in a motor vehicle accident, the Motor Accident Insurance Act (MAIA) applies with damages determined by Sch 7 of the Civil Liability Regulation 2014.
- If you were injured in a public or private place, or by the general negligence of someone else or a faulty product then the Personal Injuries Proceedings Act (PIPA) applies with damages determined by Sch 7 of the Civil Liability Regulation 2014.
- If you were injured whilst you were working, but not at your own work site, both the WCRA and the PIPA apply making it a ‘hybrid claim’, and pain and suffering can be determined by Common Law. This slightly unusual circumstance means that previous court judgements influence the determination of the reasonable and maximum damages payable to you. A Judge may use discretion in this instance, and for this reason the maximum damages are not capped.
In all instances (other than common law circumstances – i.e. claims not captured by the above legislation), a person’s dominant injury is awarded an injury scale value (ISV) between 0 and 100. An ISV of 0 would mean that the dominant injury had fully healed and resolved and leaves no lasting or permanent damage to you – for example, a bruise. On the other hand, an ISV of 100 would mean that the dominant injury causes you permanent incapacity – for example, a brain or spinal injury causing quadriplegia. Independent medical examination reports (IME reports) assist the court in determining which ISV should apply.
The tables contained in the legislation that set out General Damage awards is indexed and updated annually to increase in line with inflation.
For an injury arising on or after 1 July 2019 – 30 June 2020, the maximum General Damages (based on an ISV of 100) that can be awarded in Queensland by the Civil Liability Regulation 2014 is $389,900 or by Sch 12 of the WCRA is $377,300.
Actual Court Awards for General Damages
Knowing the maximum award for General Damages is typically of little use considering how few claims it would apply to. We consider it more useful to know awards from actual Queensland court judgments:
| Personal Injury Claim | General Damages | Total Damages |
| Pelvis/hip injury and secondary psychological injury due to a nurse not being trained how to properly restrain a patient – Wilson v Gold Coast Hospital and Health Service | $25,150 | $1,634,419 |
| Whiplash style neck injury (cervical spine) and secondary psychological injury sue to a rear-end car accident – Eustace v Dubrava | $5,920 | $12,967 |
| Broken leg from a fall at work – Sneddon v Petts | $27,050 | $178,832 |
| Rib, pelvis, neck, and lower back injury due to being hit by a car as a pedestrian – Baldock-Davis v Popham | $21,510 | $40,635 |
| Ankle injury and secondary psychological injury – Nkamba v Queensland Childcare Service Pty Ltd | $15,600 | $197,014 |
| Bowel perforation injury sustained during a medical procedure – Chapman v Wide Bay Hospital and Health Service | $21,780 | $201,770 |
As you can see, awards for General Damages are relatively consistent in the sense that the amounts are low, and not truly reflective of the actual daily suffering an injury usually causes someone. However, total damages vary greatly. This is because a personal injury claim’s value is mostly influenced by the impact of the injury on a person’s ability to earn income – rather than the pain and suffering caused by the injury generally.
If you are unsure as to what ISV applies to your injuries or want to know how to maximise your personal injury claim, contact Roche Legal for free initial advice or request a free claim check today.