How is a claim for pain and suffering calculated?

There are various areas of compensation law in New South Wales and different jurisdictions deal with pain and suffering claims differently,. Each scheme has specific criteria which must be met before you are able to claim pain and suffering.

Whether or not you are entitled to claim pain and suffering largely depends upon the circumstances of your injury.

This article will not discuss the different schemes and thresholds applicable, but rather focus on some of the key elements that a Court or Commission may consider when awarded pain and suffering.

When you sustain an injury or illness and make a personal injury claim, you are often able to claim for your economic loss (i.e. loss of wages), your medical and treatment expenses along with a claim for pain and suffering for the permanency of your injuries.

Pain and suffering compensation is often described as non-economic loss compensation or damages.

A claim for pain and suffering is meant to compensate you for the actual physical pain and suffering you have suffered, along with future pain and suffering. It factors in your inability to perform former activities, such as recreational and sporting activities, and your pre-injury pastimes. A pain and suffering claim is designed to compensate you for the loss of enjoyment and amenity of life that you have suffered due to your injuries, along with the psychological impacts of sustaining a physical injury and the stress that often causes.

When it comes to calculating a pain and suffering claim, the provisions are often discretionary, meaning the decision maker has the discretion to consider the individual aspects of your case. Often reference is made to a ‘most extreme case’, for example, paraplegia or total blindness. The Court can consider the impact of your injuries as opposed to a worst-case scenario, and where your case sits on a sliding scale.

As part of this exercise, the Court or Commission will consider things such as: -

·         The disruption to your usual way of life.

·         The severity of the pain and suffering and injury.

·         How the injury has impacted upon your lifestyle.

·         Past and future treatment that will be required, particularly if treatment is painful, invasive or distressing.

·         Your age and life experience.

·         The inability to perform various tasks and functions.

·         Primary and consequential psychological injuries, such as adjustment disorder, anxiety and depression.

We often use the example that the pain and suffering awarded for a left middle finger amputation would be vastly different to a right-hand dominant worker who could continue to work as compared to a renowned international pianist who could no longer travel the globe playing piano.

The circumstances of each case are individual, and no case is alike. In saying that however, we can often consider previous decisions of Courts and Commissions to give some guidance as to what awards have previously been given.

We obtain evidence from your treating doctors, along with medico-legal specialists, to provide opinions as to the extent of your injuries. A pain and suffering claim is also supported by your own evidence as to the way in which the injury has impacted on your life. The impact of an injury can be a very personal thing.

If you would like advice as to your own pain and suffering claim, contact our specialist lawyers who are here to help.