We are back again with the final part of our four-part series on quantum or how much is your claim worth.

As discussed in Part 1, Part 2 and Part 3, many factors influence the amount of compensation a person can receive.

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.

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.

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.

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.

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.

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.

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.

Without stating the obvious too much, medical expenses relate to the costs of rehabilitation following an injury.

The expenses include both past fees that were already paid for, as well as future medical costs.

As is the case in every other area of compensation, the amount that can be recovered will vary depending on the individual’s treatment plan and care needs.

Some real-life case examples have been provided.

Some typical medical expenses that are included in a compensation claim include:

For this reason, it's essential to be very thorough when documenting injuries in your claim file so that it is possible to calculate damages to account for future problems.

It is also important to attend all medical appointments or therapy sessions.

Proving these expenses may require the help of an expert medical professional. Usually, thorough documentation is needed to calculate the total costs of medical treatment. These may include the presentation of various items of evidence in court, such as:

• Hospital bills;
• Chiropractor or medical therapy costs;
• Medical treatment receipts;
• Pharmaceutical bills; or
• Any other documents showing the costs of the medical expenses

Keeping a record of the medical expenses (treatment costs, medications, assistive technology) you had due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having a claim at all.

Keep a spreadsheet that details the following:

• Type of service or item
• Service or item provider (doctor surgery or pharmacy)
• Date of service/purchase
• Cost of service/item
• Will the service/item be required in the future and how often

• Buy all of your prescriptions/dressings/painkillers etc. from the one pharmacy and ask your pharmacist to record all of your purchases.  When it comes time to claim your damages, you can simply obtain a printout from the pharmacy;
• Keep receipts for any purchases that you have made;
• Photocopy or scan those receipts, in case they get lost or destroyed;
• Consistently fill out the table as each service is provided.

Don't miss out on other aspects of your claims...

...read the other blogs in the series below.

Care costs relate to an injured party inability to complete daily living tasks.

The idea is the amount of money received under this head of damage will pay for another person to assist with daily living and maintenance task.

The care can be provided to you by friends, neighbours or relatives, or you may have engaged paid services to undertake the tasks you could not perform yourself due to your injury.

Legislation in Queensland imposes threshold care requirements in cases of motor accident injury or public liability claims, and there are increased restrictions on care claims when claiming for a work injury.

Again, this is dependent on the level of care that is required based on your unique circumstance.

It’s known as gratuitous care.

Confusing title aside, it relates to any voluntary work of third parties (like your friends, family (including your partner), neighbours, and very kind strangers) who assist you in any of the above tasks.

You will need to prove that you completed the tasks before the accident.

For personal care tasks (such as showering, cleaning your teeth), it’s assumed you would have completed tasks those tasks yourself.

For jobs such as cooking, cleaning, garden care and child care, evidence is needed to show that you were responsible for some or all of these tasks within your household.

Equally so, you will need to put a monetary value on the work that you do. 

Some examples of evidence might include:

• Testimony from partner, or someone living with you of the jobs you usually do around the house
• Tax invoices and receipts for commercial care post accident
• Quote for commercial care (such as a gardener, cleaner, nanny etc.)
• Record of help provided by friends and time allocated
• A medical note from a medical professional on your ability to complete daily tasks
• Written testimony from friends and family of the hours worked and tasks that were undertaken.

Keeping a record of the care and assistance provided to you due to your injuries is very important, as it can mean the difference between having a claim for care and assistance, or not having such a claim at all.

Keep a spreadsheet that details the following:

• Type of care (paid or unpaid)
• The service provider (company or person's name if unpaid)
• Kind of service provided (i.e. mowing, laundry, cleaning)
• Date and duration of service
• Cost of service (if paid)
• Will the service be required in the future and how often

• Keep receipts for any services that you have paid for;
• Photocopy or scan those receipts, in case they get lost or destroyed;
• Consistently fill out the table as each service is provided;
• Ask the service provider to give you an "Itemised Account" that details the dates and costs of each service when they are performed

Like the saying – don’t put all your eggs in one basket - don’t forget to read the rest of the articles in this series on the other areas of compensation available to you.

As we learn through this four-part series, there are a number of areas under which you can determine what your quantum is and in turn discover how much your claim is worth.

The first topic we will be covering is a person's future economic loss. This area often makes up the most significant percentage of your quantum.

[RELATED: Calculate your Future Economic Loss using our worksheet here)

Future Economic Loss relates to an injured person’s ability (or inability) to work after an accident.

Simply, it covers a person's reduced income.

For example, this area of compensation might cover a person’s:

• Total inability to return to work
• Fewer hours or a move to part-time work
• Change in duties or job
• Inability to progress career through promotions or job changes

..up until they retire.

The amount awarded for future economic loss varies considerably.

It depends on five major factors including:

• The extent of injuries and their lasting impact on the ability to continue working
• Pre-employment history
• Likely career trajectory
• The ability to prove the above three factors; and
• Age at trial or settlement (how far you are away from retirement).

Someone's future loss is usually calculated by looking at four things.

How future economic loss is calculated sounds complex, but if you follow our worksheet it breaks down the steps into easy to understand (and action) summaries.

When a person’s earning capacity is difficult to determine (such as in children’s cases, or where a person hasn’t taken time off work) a court will award a global sum.

This a blanket award of money determined by the trial judge. Such a case was evidence in example 1 above.

The discount rate relates to the rate of return that may be expected on money awarded in a lump sum settlement and is expressed as a percentage per annum.

A discount rate of 5% implies an expectation that the money, when invested, will achieve a return of 5% per annum.

Discount rates are used when assessing someone's future economic loss.

They are essential in determining how much needs to be paid now to compensate for amounts that would have been received in the future.

[RELATED: Calculate your Future Economic Loss using our worksheet here)

Critical pieces of evidence required to prove your future economic loss include:

• Pay summaries
• Salary estimates or your current and future jobs
• Examples of colleagues who have progressed and their wages
• Average retirement age in your industry
• Medical reports on your likelihood of returning to work
• Pre-injury medical history

Like the saying – don’t put all your eggs in one basket - don’t forget to read the rest of the articles in this series on the other areas of compensation available to you.

We don’t need to explain the phenomenon of near-misses.

They happen far, far too often on our roads.

We often hear stories of people too afraid to get back on the bike after a near miss.  

So much so we decided to ask for some expert advice on the matter.

Brisbane Psychologist Romana Bowd has put together a quick article on the mental impact near misses can have on cyclists.

Discover how to identify psychological trauma and what your next steps should be.

As a driver of a car, bike rider or even pedestrian we can be involved in a significant accident that can leave not only physical injuries but also psychological injuries.

However we can suffer psychological injuries due to a ‘near miss’ or even witnessing an accident. These injuries can leave emotional scars that are as traumatic as physical ones.

We refer to these emotional problems as Post Traumatic Stress Disorder (PTSD) if a person’s emotional state remains unstable many days or months past the original incident.

A person is diagnosed with PTSD if there are any emotional or environmental triggers that can bring back memories of the trauma accompanied by intense emotional and physical reactions.

Symptoms may include nightmares or flashbacks, avoidance of situations that bring back the trauma, heightened reactivity to stimuli, anxiety or depressed mood.

It also can include:

Often people do not consider themselves to be suffering from PTSD because it is often associated and most commonly reported in war veterans and just witnessing an accident or being involved in a ‘road accident’ is under-estimated by most of us as not serious enough to seek help.

However, health professionals consider that anyone subjected to severe or sudden stress needs to be treated seriously just as if they had a physical injury.

PTSD can occur in anyone of any age, gender, culture and socioeconomic background.

If you are suffering  from symptoms, then it is recommended that you go and see your GP.

Your GP and you can assess whether it would be helpful to see a psychologist, psychiatrist and/or start medication.

If PTSD is severe it does not just ‘go away’ often our brain cannot erase the memories of the incident and it is very important to seek help.

Romana is a qualified psychologist based in Brisbane. For any questions relating to this blog post, psychological trauma or other related issues, please contact Romana using the details provided below.

Dr Romana Bowd PhD, BSc(AppPsych), BSc(Hons), MAPS, CHP, Assoc. CCounsP

Taringa 7 Day Medical Centre

Phone: 3830 5999

Email: [email protected]

If you need immediate help, please contact emergency services on 000 or LifeLine on 13 11  14

We often hear reports of accidents involving cyclists and cars.

The physical injuries are often well-known.

Trauma is the elephant in the room.

The anxiety and mental problems riders face after they are involved in repeated ‘near misses' can be life changing.

In January 2018, over 50 percent of the riders CycleLaw spoke to suffered psychological trauma as a result of an incident involving a motorist.

Emily Billiau said, "The cyclists who I spoke to listed the same anxiety triggers when getting back on the bike. These included the:

These anxiety triggers, if left untreated, can sometimes develop in to more serious mental illness.

The downward spiral often has a devastating impact on the cyclists ability to carry out their job.

You don't have to physically touch a rider to be liable for the mental harm you cause them.

In the meantime, initiatives such as Bicycle Queensland’s incident debrief service is a valuable support resource for cyclists.

If you would like more information on this service, please visit the BQ website here.

To successfully prosecute a driver in Court, it is necessary for Qld Police to have evidence to support the case.

The police prosecutor must be able to prove the case.

Well, they don't need you to take your evidence to the police in Scotland, but no doubt sometimes you probably feel as if that might get you a better result.

So here's what they do need.....

If you say one thing and the driver of the vehicle contradicts what you say, then the police officer (and ultimately the Court if police prosecute the matter) will have to decide which version they accept.

In order to convince police of your version, you need to be able to present them with solid evidence. 

You can help persuade them…

Qld Police will then make the decision as to whether they iIssue a traffic infringement notice (and ultimately prosecute the matter in the Court).

They will do so  on the basis of all of the evidence that is available to them at the conclusion of their investigation into the incident. 

They will critique:

1. the reliability of the evidence;
2. your character; 
3. the character of the driver, and
4. the character of any independent witnesses to the incident.

Evidence can take several forms – for example, it may be lead in the form of documents, witness statements and video recordings.

In Queensland, the Evidence Act 1977 (Qld) prescribes the rules which govern the procedure and admissibility of evidence in the Courts.

The rules are aimed at ensuring fairness.

Evidence will only allowed into Court (admissible) if it is relevant.

And it is only relevant where its existence tends to indicate that one of the facts in issue (or one of the versions (yours or the drivers)) is more likely than the other.

While generally speaking, evidence that is relevant will be admissible, there are a number of exclusionary rules that may prevent evidence from being considered by a Court.

Probably the most well known exclusion is that of hearsay.

Hearsay evidence will not be admitted.

For example, if Emily tells Ashley that she had seen a third person, Anne (a motorist), pass a cyclist only allowing a gap of 0.5m, Ashley would not, as a general rule, be able to give evidence of Emily’s statement against Anne in Court.  

One of the other more common exclusions relates to opinion & expert evidence.

When a person gives evidence it ought to be a direct account of what that person actually saw.

A person's interpretation or opinion cannot normally be admitted as evidence.

For example, if Emily, Ashley and Anne were riding together in single file (and in that order), and Anne was clipped from behind by a motorist, Emily and/or Ashley could not give that they assume Anne was clipped by the motorist because they did not actually see that occur.

In Queensland, the Transport Operations (Road Use Management—Road Rules) Regulation 2009 prescribe the rules which must be followed by road users.

So let’s get some of them down:

• Section 129 (1) states that a driver (rider), on a road other than a multilane road, must ride as near as practicable to the far left side of the road; (so we get where the motorists are coming from)
• Section 129 (3) states that the road does not include a road related area; (so what is a road–related area?)
• Section 13 (2) (a) states that the shoulder of the road is a road related area
• Section 13 (3) (b) (ii) states that any area outside an edge line is a shoulder

The short of this – if there is a wide shoulder that does not mean the cyclist has to occupy the shoulder.

Cyclist often will ride on the shoulder as a matter of courtesy. However, they should only do so if it is safe.  

Unless you had a death wish you would NOT STAY LEFT on the road pictured above - and you would be entitled to move into the centre of the lane.

The law states that you are to ride as near as practicable to the far left side of the road (and this does not include the shoulder).

The words “as near as practicable” are open to interpretation.  Whenever anything is open to interpretation, it is important to gather compelling evidence that can sway this ‘interpretation’ in your favour.

 If the edge of the road is in a bad way...

• chipped, 
• cracked,
• bitumen breaking away
• sunken depression
• potholes

...then it will be reasonable/practicable for you to move towards the centre of the lane.

A video camera on the front of your bike will capture the condition of the road – your compelling evidence.  Live ‘date-stamped’ footage will be extremely powerful should you be involved in a ‘near miss’. Particularly if the offending motorist claims you were not as far to the left as you should have been.

In recent years on-bike-cameras have emerged as a must-have among cyclists.

They have also become a common feature in social media, with videos capturing horrific incidents involving cyclists and other motorists.

Take, for example, the incident involving a young father and husband who was devastatingly struck by a passing car on his daily commute to work (see video below).

The footage is shocking – it captures the moment that the vehicle, which was travelling in the same direction, struck the young father throwing him to the ground at high speed. You can hear his screams and his tears of pain.

In the following hours, the young father would lose litres of blood and spend hours in surgery. His life changed forever.

There was also the astonishing footage out of the United Kingdom of the driver who intentionally swerved onto the wrong side of the road and drove head-on at a cyclist. It would have been very difficult to comprehend without the footage.

We speak to  Emily Billiau, our Cycle Law Expert who understands the issues cyclists face and has dealt with over 500 cycling accident claims in her legal career.

“Overall, I think there are some key advantages to cyclists using cameras:-​

One of the main advantages of cameras would have to be deterrence. With the increasing use of cameras, comes the increasing risk to impatient motorists that they will be captured on camera.

And logic would suggest that that might be enough to deter a small number of people who might otherwise deliberately target cyclists or be inclined to leave the scene of an accident.

Secondly, the footage captured on cameras can have great evidentiary value. They can help cyclists with establishing liability/fault.

And thirdly, with captured footage regularly featuring on the news and in social media, the video will help raise awareness of the vulnerability of cyclists generally on our roads. Hopefully, other motorists will come to appreciate the catastrophic effects that their actions can have on cyclists.

There are many different models of cameras available to cyclists. One of the best on the market is arguably the new Australian invented Fly-12.

With a significant number of road rage incidents and liability disputes in collisions involving cyclists, the camera footage could be vital.