Procedures for assessing damages in personal injury claims in NSW have become increasing complex. RMB Compensation Lawyer FRAN SMITH explains:
The aim of damages is to compensate the plaintiff and put the injured party in a position as if the injury had not occurred “as far as money can do”.
Many people make their own estimation of the damages to which they think they should be entitled, based on people they know who have also been injured or based on an amount of money that they need to clear debt. This inevitably leads to further distress and disappointment.
The assessment of personal injury damages is based on common law principles developed over hundreds of years and modified by statute. In the case of Todorovic v Waller, the High Court identified four basic principles regarding the award of damages:
- Damages are compensatory in nature.
- Damages must be recovered once and forever. There is no power for the Court to order a defendant to make periodic payments.
- The plaintiff is free to do whatever they wish with the damages
- The onus is on the plaintiff to prove the injury or loss.
The method of determining the quantum of damages essentially depends on the particular circumstances of the injury. The amount of damages for a supermarket employee who slips and falls and suffers injury due to the negligence of the supermarket is likely to be very different to the amount of damages for a customer of the store suffering exactly the same injury in exactly the same way.
Again, if a customer suffered an injury in a car accident on the way to the supermarket the damages to which they would be entitled would differ from the damages to which a supermarket employee who suffered exactly the same injuries in a car accident occurring on a work related journey would be entitled.
There is a statutory entitlement to partial payment of wages and medical expenses in workers compensation and motor vehicle accident claims. Confusingly, there are three different regimes in place for determining damages for public liability claims, third party (motor vehicle accident) claims and work injury (negligence claims against an employee) damages.
Damages for non-economic loss are those awarded to compensate a plaintiff for pain and suffering, loss of amenities of life, loss of expectation of life, or a disfigurement. In public liability and third party claims, a plaintiff may be entitled to an award for general damages on non-economic loss. In work injury damages claims, there is no entitlement to non-economic loss, however there may be a lump sum entitlement based on the “whole person impairment” of the worker.
In public liability claims, the amount of damages for non-economic loss is determined by comparing a plaintiff’s loss to that of a most extreme case. There is no entitlement to damages for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.
In motor accident claims, once it has been determined that a claimant has achieved the threshold of 10% whole person impairment based on the criteria set out in the AMA Guides to the Evaluation of permanent impairment and the Guidelines of the State Insurance Regulatory Authority (SIRA).
Once the whole person impairment of an injured motorist is determined to be greater than 10%, there is no statutory restriction on the amount of damages that may be awarded other than a maximum amount of damages. However, it is not possible to combine the percentage permanent impairment caused by a psychiatric injury with the percentage permanent impairment caused by physical injuries to reach the elusive 10% threshold. It is possible for a motor vehicle accident victim to have a 9% whole person impairment for physical injuries as well as a 9% whole person impairment for psychiatric injuries and still have no entitlement to damages for non-economic loss.
In view of the complex nature of the law in this area, it is very important to obtain early legal advice regarding your rights and entitlements. The assessment of the quantum of damages is complex and based on the particular circumstances of each plaintiff.
It is extremely important that any expectations are based on sound legal advice rather than the amount of compensation that a neighbour or co-worker might have received or the amount of your mortgage.
At RMB Lawyers, we have a number of highly qualified legal practitioners specialising in this area of law who are able to provide you with the timely advice required.