Compensation for Pain and Suffering
The Motor Accidents Compensation Act 1999 applies to accidents occurring after 4 October 1999 and restricts an injured person’s ability to access damages for non-economic loss such as pain and suffering.
Non-economic loss damages involve compensation for injuries sustained and disabilities caused. This type of compensation is only available to those who overcome the 10% whole person impairment threshold.
This threshold limits the amount of compensation payable to an injured person in cases of minor injuries. There is a cap on the maximum amount recoverable for non-economic loss which is indexed annually.
Any assessment of whole person impairment is subject to the American Medical Association Guide to the Evaluation of Permanent Impairment (4th Edition) or guidelines issued by the Motor Accidents Authority.
Where a person is assessed at greater than 10% whole person impairment, common law principles in relation to the assessment of general damages apply. This involves an assessment of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
When there is a dispute as to the level of permanent impairment, the issue is referred to a medical assessor appointed by the Medical Assessment Service. The medical assessor then issues a medical certificate which is binding on all parties involved.
Multiple assessments may be performed for physical injuries and a certificate will be issued calculating the combined total of whole person impairment. Impairments arising from psychiatric or psychological injuries will not be considered unless the impairment assessment is made only in respect of a psychiatric or psychological injury.
In circumstances where a medical certificate contains a material error, a party may apply to have a medical assessment referred to a panel of three medical assessors for review. The review panel will either revoke the original certificate and issue a new certificate or confirm the certificate issued by the original assessor.
If proceedings are commenced, the Court has the ability to reject a certificate as to the degree of whole person impairment and refer the matter again for assessment. The Court also has the power to substitute a determination of the Court as to the degree of whole person impairment.
If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist compensation lawyers.