Suffering psychological or physical injuries due to your work, a transport accident or the negligence of someone else can be overwhelming. Trying to understand the compensation options available to you can be equally as overwhelming due to the complexities involved in navigating personal injury law in Victoria.
While every personal injury claim is unique, knowing what factors are considered in assessing your compensation to medical and like expenses and damages/compensation for pain and suffering and loss of earnings can give you a better idea of your potential compensation.
This guide will provide a detailed breakdown of what factors will impact your compensation entitlement.
Factors Affecting Personal Injury Compensation
Medical and like expenses
Recovering from an injury often involves attendances with your doctor, physiotherapy, surgery, hydrotherapy and gym programs. It may also include attendances with a psychologist or a psychiatrist, along with medication. Commonly claimed medical services include gardening, home help and assistive equipment in the home.
All these costs, both past and future, can be included in your claim for compensation.
Reasonable medical and like expenses are covered by the WorkCover insurer if you have an accepted WorkCover claim for a work injury or similarly by the Transport Accident Commission (TAC) if you have an accepted TAC claim for a transport accident.
For public liability claims, if it can be established that the injury was caused by negligence of another party, you can sue to recover your financial loss. This includes the cost of medical treatment and/or lost earnings during your time of incapacity. This type of compensation is payable regardless of the severity of your injury.
Pain and Suffering Damages
Pain and suffering damages is a form of compensation designed to compensate you for your pain, emotional distress and loss of enjoyment of life by reason of your injury, which you have suffered and will continue to suffer into the future. For that reason, a number of factors will be considered to determine the value of your pain and suffering damages. These include:
Severity of the Injury
The severity of your physical or psychological injury is the most critical factor in determining the value of your pain and suffering damages. For instance, more serious spinal injuries requiring significant surgical intervention resulting in permanent nerve damage and chronic pain, typically result in higher compensation payouts compared to muscular injuries which have not required any surgical intervention.
Impact on Daily Life and Work Duties
Consideration will be given to the extent that your injuries have impacted your capacity to:
- Perform daily activities of living, such as your domestic, social and recreational pursuits; and
- Perform your work duties.
The greater the impact on your daily activities of living and work capacity, a greater amount of compensation is usually awarded. But this decision is for the jury to determine.
Factors that are taken into consideration include but are not limited to the following:
- work capacity
- sleep
- mobility
- cognitive functioning
- capacity for self-care and self-management
- performance of household and family duties
- recreational activities
- social activities
- sexual life; and
- enjoyment of life.
Credibility
Your credibility is particularly important when the Court assesses pain, suffering and loss of enjoyment of life. The Courts place considerable reliance on the documentary evidence and complaints made to doctors, your presentation and demeanour in Court and whether your evidence is honest, truthful and consistent and whether there is any video surveillance which contradicts your evidence. Your credibility can make or break your legal case.
Loss of Earnings Damages
People with injuries often face the challenge of long periods away from work.
Compensation can be given to cover any past loss of income, any future loss of income and superannuation by reason of your inability to work. An assessment to loss of income will take into consideration your work history and your commitment to ongoing employment.
Contributory Negligence
Proving negligence on the part of another entity or person is crucial in order for you to be successful in your claim for damages. However, it is important to note that if it is found that you have contributed to your injury, the amount of compensation awarded will be reduced to the extent of your contribution.
For instance, if you are found to have contributed to your injury by 50%, any damages awarded to you will be reduced by 50% to reflect your level of contribution.
Vicissitudes of life
Any future economic loss damages awarded to you are reduced by the Court to take into account other circumstances and risk factors that may impact your future work capacity. In legal terms we refer to these as ‘vicissitudes of life.’ These may include an unforeseen accident, a medical illness/condition and job loss amongst other things. The usual reduction is 15%, however, a greater reduction can also be applied based on the specific circumstances of a case.
Average Compensation Payouts
If your matter gets to Court, it is the jury’s role to determine the issue of negligence and the assessment of damages. Members of the jury will decide whether you succeed in your legal claim and how much compensation is awarded to you.
The amount of compensation you may be entitled to is based on a number of factors, including which scheme you are eligible to claim compensation under. It is important to note that no matter what type of claim you are making, the amount of compensation you may be eligible to receive will vary depending upon the circumstances of your situation.
Work Injury Compensation
For work-related injuries or illnesses, you may be eligible to claim compensation through the WorkCover scheme. The types of compensation you may be eligible for include weekly payments, medical and like expenses, an impairment benefit and common law damages.
Read our Guide on WorkCover Compensation Payouts and How to calculate how much compensation you are entitled to for work injuries in Victoria for more information on these types of compensation and examples of how much compensation you may be able to claim through the WorkCover scheme.
Transport Accident Compensation
For injuries sustained in transport accidents, including drivers, passengers, pedestrians, motorcyclists and cyclists, you may be eligible to claim compensation through the Transport Accident Commission (TAC) scheme. The types of compensation you may be eligible for include loss of earnings payments, loss of earning capacity payments, an impairment benefit and common law damages.
Read What compensation and how much compensation are you entitled to under the TAC scheme for injuries sustained in transport accidents in Victoria? for more information on these types of compensation and examples of how much compensation you may be able to claim through the TAC scheme.
Public Liability Compensation
For injuries suffered in a public place through the fault of another party, you will need to make a common law claim for compensation. There is no scheme offering statutory benefits, such as weekly payments and medical and like expenses, for public liability claims.
If you can prove you have suffered a “significant injury” as required and defined by the law and that it was another party’s fault, you may be eligible to claim compensation for economic loss, pain and suffering damages and gratuitous care, or the care and assistance given to you by others at no cost to you.
Read our Guide to Common Law Claims for Public Liability claims to learn more about the compensation you may be eligible for and an example of a High Court case for slips and falls in supermarkets.
The Role of Personal Injury Lawyers
Navigating a personal injury claim can be a complex and overwhelming process, however having experienced personal injury lawyers on your side can make a significant difference.
Personal injury professionals provide an assessment of your case by thoroughly evaluating all aspects of your injury compensation claim, including your entitlement to medical expenses, pain and suffering damages and loss of earnings damages.
Whether your personal injury occurred in the workplace, on the road, or in a public place, skilled personal injury lawyers can help you navigate the complexities of each unique scheme. By working with legal experts, you increase your chances of securing compensation you deserve.
FAQs
How are pain and suffering damages calculated?
Pain and suffering claims seek to compensate for the physical and emotional toll an injury has had and will continue to have on you. An assessment of an injured person’s pain and suffering damages considers the severity of the injury, and its impact on your quality of life.
What evidence is needed for a claim?
Different types of evidence are required to support your compensation claim. These include:
- Medical reports and records from your treating practitioner and detailed medical reports from medico-legal doctors: These demonstrate the diagnosis and prognosis of your injury, any pre-existing injuries and/or conditions, the cause of your injury, the treatment required for your injury, the impact of your injury on work and activities of daily living and any ongoing care needs for your injury.
- Financial documents and pay-slips: Tax returns and pay slips and other financial documents are required to assess past loss of income and to calculate and demonstrate the income you would have earned if you were not injured.
- Evidence of negligence: Photos, videos, and witness statements/accounts can help to prove that another party was at fault. Similarly, correspondence between yourself and other parties demonstrating any potential fault can be helpful.
- Additional documents: Receipts and invoices for any out-of-pocket expenses paid are important to retain to demonstrate proof of previously paid medical and like expenses.
How long does it take to receive compensation?
The length of time it will take to receive compensation depends on how long it takes for your condition to stabilise, the type of claims being pursued and whether court litigation is required.
Conclusion
If you’ve experienced workplace injuries, a car accident or a serious physical or psychological injury, it is important to speak to an experienced personal injury lawyer as soon as possible for assistance in determining what compensation may be available to you. Call and speak directly to a member of our legal team on (03) 9321 9988 or submit an online enquiry for a free, no-obligation initial appointment.
