It is a significant part of a compensation claim.
Particularly for those who cannot claim wage losses, such as young people, retirees or the unemployed, pain and suffering often comprises the most considerable part of a compensation claim
We are back again with the final part of our four-part series on quantum or how much is your claim worth.
In this article, we learn about the final factor (or head of damage in legal-speak), known as pain and suffering.
For the injured person, the suffering post-incident can feel like it has the most significant impact on their life.
The hardest part is quantifying that intangible pain left after an injury. While difficult, it shouldn’t be overlooked.
What are pain and suffering damages?
Pain and suffering damages (aka general damages) refer to an award given by the court to the plaintiff for physical and emotional pain due to injury, illness, or loss.
These damages are not the same as economic damages, which reimburse the injured person financially but are meant to assist them with the pain inflicted after an incident.
What are some examples?
Typically, claims for pain and suffering are for such things as:
- Actual pain and suffering experienced
- The pain and suffering you will encounter in the future
- Loss of enjoyment of life
- The inability to participate in your pre-injury sports, hobbies, education and recreational activities
- The shortening of your life
- Grief over the death of a loved one
Unfortunately, just because you may have experienced pain and suffering does not mean you will necessarily be entitled to compensation for it.
Why would you not be entitled to it?
The awards for pain and suffering depends very much on the circumstances surrounding the incident in which you were injured.
For example, being injured at work can result in different compensation entitlements to being injured in a car accident or a fall in a shopping centre.
This difference is because there are different laws apply to each type of accident.
How is pain and suffering proven?
The pain and suffering of an individual can be subjective and very difficult to prove.
Medical experts are typical witnesses in these cases and often pivotal to a cases success.
This is because they can determine the impact the injuries may have had on the injured person's livelihood. They can do this based on an Injury Scale Value (ISV) scale (see below).
However, the court takes into consideration other factors in its analysis, including:
- The extent of the injury, as well as the medical diagnosis and prognosis.
- Length of time that the symptoms have been presenting.
- Physical or mental limitations in the plaintiff’s daily life (e.g., work, school, everyday tasks).
- Accounts of other individuals with similar injuries, and the extent of their reported pain and suffering.
How much can you claim?
More on the ISV Scale…
Without getting too complex, the ISV scale is used to calculate pain and suffering damages in Queensland.
The scale regulates the award given for the areas of compensation based on the individual's level of injury.
Each injury has a corresponding ISV range. For example, a minor injury such as whiplash might have an ISV range of 5 – 10. Whereas, a severe injury such as quadriplegia may be at the top of the scale at 100.
Medical experts can help determine where a person might sit on this range.
Once the ISV range is known, then that range corresponds to a monetary amount on the scale.
For bicycle injury claims, your ISV range can be determined from the civil liabilities act Schedule 4.
These can be very subjective and confusing, so we recommend seeking expert advice before lodging any claim.
Tips for maximising your settlement amount.
When filing a claim that involves pain and suffering damages, you may wish to follow these guidelines:
- Try to be as specific as possible when presenting your condition- vague conditions that can’t be proven will not result in an award of compensation
- Make a log of your injuries before and after the incident - this will help to determine how your pain and suffering is related to the event, whether it be a car accident, slip and fall case, or another type of personal injury
- Keep all written legal documents, such as police reports, medical receipts and bills, pay slips, and other records that can be used as evidence
Be sure to read up on the other areas of compensation available to you to maximise your overall settlement amount. Click the links below to read them all.