If you are searching for information on how pain and suffering is calculated in Queensland, you might be self-represented in a personal injury claim.
You may have even been told by an insurer, a lawyer or on Facebook that you should claim damages for the “pain and suffering” you have experienced because of your injury.
In this article we explain how pain and suffering is calculated within Queensland. But please be aware – this article is not legal advice and if you have a claim, you should seek advice about your potential entitlements.
What is pain and suffering?
Pain and suffering damages are also described as “general damages”. General damages is an amount intended to compensate a person for the injuries themselves and are for the pain, suffering and loss of amenities that a person has experienced and will continue to experience due to their injuries.
In calculating a person’s pain and suffering, a Court may have regard to a number of factors including:
What legislation applies to pain and suffering in Qld?
For injuries suffered in Queensland, pain and suffering is generally assessed using a scale of injuries under legislation.
The two (2) instruments under which injuries are assessed in Qld are the:
- Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) (WCRR);
- Civil Liability Regulation 2014 (Qld) (CLR).
The WCRR applies to workers’ compensation common law claims and the CLR applies to most other claims (e.g. public liability and motor vehicle accidents).
In a small number of cases, damages should be assessed according to common law and not the Regulations. That is, with reference to caselaw about the value of the pain and suffering damages, instead of the Regulations.
How is pain and suffering assessed in Qld?
The Regulations set out items under which injuries are categorised. The items grade injuries on a scale of 0 to 100.
An Injury Scale Value (ISV) of zero (0) represents the least serious injuries and an ISV of 100 represents the most serious of injuries.
How is pain and suffering calculated in Qld?
To look up the dollar amount payable for an ISV, we refer to ready reckoners like the Vincents’ Litigation Tables, which are available online. The tables identify the dollar amounts payable under the Regulations, depending on the date of the injury.
Calculating pain and suffering in cases involving multiple injuries
To assess pain and suffering, it is necessary to identify all accident related injuries and then identify the category which has the highest ISV range. The injury category with the highest ISV range will see that injury described as the “dominant injury”.
Where a person suffers multiple injuries and the maximum ISV for the dominant injury is inadequate to compensate the person, the may claim an uplift on the ISV. The uplift is generally 25% but may be as high as 50%.
Pain and suffering settlement examples
Example 1 – whiplash injury
Jan suffered a whiplash injury to her cervical spine in a motor vehicle accident on 2 July 2021. Radiology performed after the accident revealed no injury and that she had a normal amount of age-related degeneration. She underwent six (6) sessions of physiotherapy which were funded by the CTP insurer and her symptoms largely resolved within six (6) to 12 months.
Jan’s injury would possibly be classed as a minor cervical spine injury, which is Item 89 under the CLR. The Item has an ISV range of 0 to 4. The range of general damages to which she may be entitled is $0 to $6,520.
Example 2 – lumbar spine injury
John suffered an injury to his lumbar spine at work on 1 February 2021. Radiology performed after the incident revealed that he suffered a lumbar spine fracture, involving compression of his vertebra which was greater than 25%.
John’s injury may be described as a serious lumbar spine injury, which is an Item 90 under the WCRR. The Item has an ISV range of 16 to 35. The range of general damages to which he may be entitled is $30,130 to $86,310.
How do you prove pain and suffering?
Provided that you can establish that the other party was at fault, a claim for pain and suffering may be proven with:
Is there a limit to the amount you can claim for pain and suffering?
Yes. In Queensland, the current limit on damages payable for pain and suffering in motor vehicle and public liability accidents occurring after 1 July 2021 is $400,300 under the CLR.
For workplace accidents, the maximum payable for accidents after 1 July 2021 is $387,230 under the WCRR.
There is no limit on pain and suffering damages payable under a common law assessment.
What is not pain and suffering?
It is important to understand that there may be other amounts that you are entitled to claim for your injuries.
For example, damages for pain and suffering do not compensate you for:
A damages settlement is “once and for all”
If you have received an offer to settle a damages claim and you are self-represented, it is important to appreciate that a properly finalised personal injury settlement is “once and for all”. That is, once you settle your claim you will not be able to claim any further amount for any injuries or symptoms which you have experienced as a result of the event.
Individuals with personal injury claims are usually entitled to compensation under several heads of damage – not just pain and suffering. You should not settle a personal injury claim without first obtaining legal advice.
For advice regarding a personal injury occurring within Queensland, contact us on (07) 3067 3025 to book a free initial telephone consultation with an Accredited Personal Injury Law Specialist.
To read more about our experienced team, click here.