Pain and suffering damages < Back

Claiming damages for pain and suffering is only possible in a common law claim and is a very complex matter. Placing the dollar value on the pain and suffering somebody has experienced is almost an impossible task. Many claimants say that no amount of money can compensate for the pain and suffering experienced. Nonetheless, courts can only award financial compensation and, therefore, have to make an educated ' guesstimate ' of the value. The WorkCover legislation has a maximum cap on pain and suffering damages of $468,720.00. This level is indexed annually and only applies to the most severe cases.

The type of case that would attract the maximum payment would be for example a young quadriplegic or a person who had suffered multiple limb amputations. A person who has suffered a severe head injury and is in a permanent coma may get a lesser payment than someone else with a similar injury that has insight into the effects of their injury. This occurs because the person in the coma, although grossly disabled, may have no ongoing 'experience' of pain and suffering.

In assessing a claimant's pain and suffering, a court is not restricted to the clinical concept of pain but can look at the wider social effects of an injury. These include the effect of an injury on the ability to perform domestic, social, sexual, sporting and work activities. Each case must be assessed on its own factors. A person who has suffered a severe head injury and is in a permanent coma may get a lesser payment than someone (with a similar injury) who has insight into the effects of their injury. This occurs because the person in the coma, although grossly disabled, may have no ongoing 'experience' of pain and suffering.

A claimant who suffers a crush injury to the hand is likely to receive a significantly higher assessment if, for example, their hobby is playing classical guitar. A younger person, who is likely to experience the consequences of their injury for a longer time, may receive a higher payment and a person with a similar injury who is considerably older.

A payment for pain and suffering is likely to be considerably higher for a person who has had or will undergo surgery when compared to someone with a similar injury who does not undergo painful medical treatments.

Assessing all these elements to a claim for pain and suffering damages is very complex. The overriding principle adopted by the courts is that any allowance for pain and suffering must be proportionate when compared to the general range of injuries. This means, that when assessing the value of a claim for pain and suffering damages, a court must compare the claimant's position with its experiences of other cases where decisions have been made about the value of this component of claim. No two cases are identical - comparisons with other cases can only be indicative rather than decisive of an entitlement.

An amount of an assessment for pain and suffering damages must be reduced by the amount of any impairment payment already received in respect of the same injury. Pain and suffering damages can also be reduced by the extent to which a person might be considered to have contributed to their injury.


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