A lump sum compensation payout is available to sufferers of whiplash caused by motor vehicle accidents. This lump sum is accessed by way of a claim under the CTP compensation system. Payouts for whiplash are calculated in accordance with common law or court-based principles for the assessment of damages, but in the first place, such claims are not commenced in court. Instead the law requires the claim to be made under a pre-court process that is designed to resolve claims for motor vehicle accident related injuries by negotiation before commencement of a claim in court is necessary.
The lump sum compensation recoverable under this system is a total of different elements, or components, of damages compensation. These are assessed having regard to the impact of the whiplash on the individual claimant. Depending on the particular case, these components can include any combination of the following:
• Pain, Suffering and Loss of Amenities;
• Out of Pocket Expenses;
• Loss of income from the date of the incident to the present;
• Future Loss of Income;
• Future Expenses; and
• Unpaid Care and Assistance.
The assessment of compensation for Pain, Suffering and Loss of Amenities is heavily regulated by Government legislation aimed at suppressing the amounts awarded for whiplash injuries compensation for pain and suffering. A points system based on the type and degree of the injury is applied to calculate a figure. It tends to be a very limited form of compensation for whiplash injuries.
More substantial payouts for whiplash tend to incorporate amounts for loss of income, both for the period from the accident to date, and for the future. This assessment depends on the particular circumstances and will vary from case to case, but two very broad categories of this assessment are:
- The relatively more straightforward category being a catastrophic situation where someone has been prevented from working for the rest of their lives or at least for a substantial period of time. In that case the exercise is usually one of simply claiming the injured person’s entire income over the relevant period.
- A more complex assessment involving the more common and less serious situation where the injured person has returned to work either on a full time basis or on some lesser basis. Here a more discretionary approach may be required. Often this will result in the assessment of a general lump sum assessed globally for an injured person’s ongoing disadvantage on the labour market, or such other limitations on their work as can be established. Careful expert analysis is required to ensure proper compensation for the effects on employment.
In any case it will generally be necessary for an injured person to show either that they have suffered a loss of income to date or will suffer a loss of income in the future in order to recover an amount for lost income. This requirement means that it must be more than just a possibility that some interference with work will arise even if there are significant symptoms of whiplash.
Another potential basis for substantial compensation for whiplash is unpaid or gratuitous care. This is an entitlement based on a legal principle that the extent of a person’s impairment can be measured by the amount of time family, loved ones, and friends might spend looking after them or caring for them following a motor vehicle accident. Examples of this can include providing massages, cooking meals, doing housework, and driving to and from medical appointments.
Provided this care meets basic threshold criteria, it can be claimed at a commercial hourly rate, both for the period to date and for the future. The threshold requirement is that this care must be provided for at least 6 hours per week for a continuous period of 6 months from the date of an incident. As long as this threshold can be met in the first 6 months, then ongoing care can be claimed even if it has subsequently reduced to something less than 6 hours per week.
This is a very general summary of the calculation of lump sum damages compensation for whiplash. Sufferers of whiplash will only get one chance to make a claim for their condition and expert legal representation will be essential to ensure proper compensation.
This blog was written by John Vandeleur, Director
Phone: 07 3379 2513 or Toll Free 1800 316 716