People who are injured due to the negligence of another party are often entitled to claim for damages. There are various heads of damages for any personal injury claim, some of which include:
• General damages (also known as pain and suffering);
• Past and future economic loss;
• Past and future loss of superannuation;
• Past and future care and assistance;
• Past and future out-of-pocket expenses (travel, pharmaceuticals, medical expenses etc.)
What are General Damages?
General damages include compensation for the pain and suffering caused from an injury, and the loss of quality / enjoyment of life caused as a result of the injury.
Pain and suffering considers not only physical injuries, but also psychological injuries or the effects of secondary psychiatric injuries, such as post-traumatic stress disorders, anxiety and depression and adjustment disorders.
For other heads of damage, such as economic loss and out of pocket expenses, the direct monetary impact suffered by a plaintiff can generally be mathematically calculated.
When it comes to calculating general damages, there is naturally more ambiguity, as pain and suffering is incapable of precise calculation and is a subjective exercise.
It is important to note that general damages are particularly important in a compensation claim for those who are unemployed or retired, as they may not be able to claim for loss of income. For these individuals, general damages often form the largest component of their compensation claim.
However, for the majority of plaintiffs, general damages typically represent only a small percentage of their overall award of damages.
How are General Damages calculated?
Under the Civil Liability Act 2003 and the Workers Compensation and Rehabilitation Act 2003, general damages are calculated by reference to an Injury Scale Value (ISV). An ISV reflects the level of adverse impact of the injury on the injured person.
To ensure a claim for general damages is maximised, an independent medical examination report is generally obtained to assist the court in determining which ISV should apply.
When assessing an injury to determine the ISV range, an independent medical examiner will take into consideration whether multiple injuries have been sustained, the nature of the injury and the body part which has been injured. Other factors which influence an ISV range include the person’s age, life expectancy, loss of amenities of life and any pre-existing conditions.
For cases where there are multiple injuries, the dominant (or most severe) injury will be used to calculate general damages. There is opportunity for an ISV to be uplifted in these circumstances.
Notably, the objective of the ISV system is to promote:
• consistency between assessments of general damages awarded by courts for similar injuries; and
• similar assessments of general damages for different types of injury that have a similar level of adverse impact on an injured person.
How does the ISV scale operate?
ISV ranges and the calculation provisions are set out in the Civil Liability Regulation 2014 (CLR) and Workers’ Compensation and Rehabilitation Regulation 2014 (WCRR). The circumstances of the injury determine which piece of legislation applies.
In assessing the ISV for an injury, a court must consider the range of ISVs stated in relevant schedule for the injury (Schedule 4 (CLR) and Schedule 9 (WCRR)). In addition to considering the ranges of ISVs, a court must also have regard to the provisions set out in the relevant schedule, which include have regard to examples of the injury, examples of factors affecting ISV assessment and comments about appropriate level of ISV.
For example, under the Civil Liability Regulation 2014, if a person has been diagnosed with a cervical spine injury, a court will have regard to the following when determining the appropriate ISV:
‘Schedule 4 – Part 6 Orthopaedic Injuries
Item 88: Moderate cervical spine injury—soft tissue injury with an ISV range of 5 to 10
The injury will cause moderate permanent impairment, for which there is objective evidence, of the cervical spine.
An ISV of not more than 10 will be appropriate if there is whole person impairment of 8% caused by a soft tissue injury for which there is no radiological evidence.’
In essence, under the ISV system, injuries are assigned a point value between 0 to 100, where 0 correlates to an injury not severe enough to justify any award of general damages and 100 is the most severe injury possible.
When converting the allocated ISV to a monetary value, courts need to look at the compensation tables set out in the relevant legislation (Schedule 7 (CLR) / Schedule 12 (WCRR)).
At the present time, (being for an injury arising on or after 1 July 2021) the maximum award of general damages based on an ISV of 100 that can be awarded in Queensland by the Civil Liability Regulation 2014 is $400,300.00.
Looking at a less severe injury with an ISV of say 10 (for an injury arising on or after 1 July 2021), general damages would be awarded in the sum of $17,650.00 under the Civil Liability Regulation 2014.
The compensation tables contained in the legislation that set out general damage awards are updated annually to increase in line with inflation.
If you have been injured and are unsure of your entitlements or want to know how to maximise your personal injury claim, we encourage you to seek a legal opinion.
