When can I claim pain and suffering compensation?
Whether you’re entitled to pain and suffering compensation depends on a few factors, like the type of claim you’re making and the state you’re in.
Depending on your situation, you can claim for injuries that happened:
In most cases, you’ll need to show that your injury was caused by someone else’s ‘negligence’. This means they had a responsibility to keep you safe but failed — either by doing something careless or failing to do something expected of them.
Proving negligence can be a complex process, so make sure to get advice from an expert lawyer before filing a claim. We’ll help you gather the right evidence to demonstrate your injury and directly link it to someone else’s negligence.
If you’re in NSW, it’s important to know that you generally can’t claim pain and suffering for a work injury, even if your employer’s negligence was the cause. The only exception to this rule is if you’re an emergency services worker, such as a police officer or a paramedic.
What does my pain and suffering compensation include?
When you make a claim for pain and suffering, your compensation can cover a range of impacts, including:
- Physical pain and discomfort: this includes the ongoing pain from your injuries, any physical limitations you now face, and even the discomfort caused by treatments or recovery.
- Emotional distress: stress, anxiety, depression, PTSD, and other psychological conditions caused by the injury are all considered. The emotional toll of your experience matters just as much as the physical.
- Loss of enjoyment of life: if your injury has taken away the ability to enjoy the things you once loved, this can also be factored into your claim.
To maximise your compensation, you’ll need strong evidence that shows how your injury has affected each of these areas. That’s why it’s so important to work with a lawyer to build your claim. We’ll help determine if you’re eligible for pain and suffering compensation and make sure you have persuasive evidence proving the full impact of your injury on your life.
How is pain and suffering calculated?
Pain and suffering compensation is calculated differently depending on which state you’re in. Below, we’ll explore how it works in each state.
New South Wales
In NSW, pain and suffering compensation is calculated based on the severity of your injury compared to the “Most Extreme Case” (MEC).
Once your condition stabilises, you’ll be independently assessed, and your injury will be given a percentage of the MEC. To claim pain and suffering, your injuries must be at least 15% of the MEC.
The maximum compensation is awarded to those with 100% of the MEC. As of 1 October 2024, this amount is $761,500, and it is adjusted annually for inflation.
For injuries with an MEC of 35% or higher, you’re entitled to 1% of the maximum compensation for every 1% of the MEC. For example, if your MEC is 50%, you would receive 50% of the maximum amount, which is $380,750.
For injuries with an MEC between 15% and 33%, compensation is calculated using a table in Section 16 of the Act, with increments of 0.5%.
If your MEC is below 15%, you can only claim for your financial losses.
Queensland
In Queensland, pain and suffering compensation is based on your Injury Scale Value (ISV). This involves your injury being assessed by medical professionals who allocate a number between 0 and 100, depending on the severity of your injury.
An ISV of 0 means your injury has fully healed, with no lasting impact on your life, while an ISV of 100 is reserved for severe and permanent injuries, like quadriplegia or significant brain injuries.
The amount of compensation you receive depends on your ISV and the type of claim you’re making. For example, if you’re making a workers compensation claim with an ISV of 25, you’ll currently receive $61,710. But if you’re making a motor accident, public liability or medical negligence claim with the same ISV, you’ll get $63,950. These figures are correct as of 1 July 2024 and increase every year with inflation.
There’s no cap on pain and suffering compensation for most claims, but if you’re making a workers compensation claim, the maximum you’ll receive is $442,195. This amount is also adjusted yearly for inflation.
Victoria
In Victoria, pain and suffering compensation is based on your percentage of Whole Person Impairment (WPI), which measures how your injury affects your overall life. A medical professional will conduct the assessment to determine your WPI.
To be eligible for pain and suffering compensation, your WPI must be 5% or higher for a physical injury, and 10% or more for a psychiatric injury. However, Victoria automatically allows claims for specific ‘significant’ injuries, including:
- Loss of a breast.
- Loss of a foetus.
- Psychiatric injury caused by the loss of a child before, during, or immediately after birth.
If your injury meets the minimum WPI or qualifies as a significant injury, the court will determine your final compensation. As of July 2024, the maximum compensation for pain and suffering is $713,780.
South Australia
In South Australia, you need to meet one of two criteria to claim for pain and suffering:
- The injury had a major impact on your ability to live a normal life for at least 7 days, or
- Your medical expenses reach the ‘prescribed amount’ ($7,440 as of 2024).
Once you meet either of these conditions, an independent medical practitioner will assess your injuries and assign an Injury Scale Value (ISV) between 0 and 60.
Your total compensation is then calculated based on a sliding scale outlined in Part 8 of the Act. As of now, the maximum compensation for pain and suffering is $478,500, with this amount increasing annually with inflation.
Western Australia
In Western Australia, to claim pain and suffering compensation, you need to meet both the minimum Whole Person Impairment (WPI) and claim value thresholds.
- Whole Person Impairment (WPI): your injuries must be assessed at a minimum of 5% WPI. If your injury is under 5%, you can only claim compensation for economic loss, not pain and suffering.
- Claim value: your claim must be worth at least $25,500 to be eligible for pain and suffering compensation. The exact amount you get depends on the value of your claim:
- $25,500 – $74,000: you’ll receive the value of your claim minus $25,500.
- $74,000 – $99,500: you’ll receive the value minus a percentage of the first $25,500.
- $99,500 and over: you’ll receive the full value of your claim.
There’s an exception for claims related to ‘gratuitous services’ (unpaid tasks like cooking, cleaning, or childrearing) where the minimum claim value is $7,000. Keep in mind that these amounts are correct as of 2024 and adjusted for inflation each year.
Tasmania
In Tasmania, to claim for pain and suffering, you need to meet a minimum claim value of $7,000. If your claim exceeds this threshold, you’re eligible for pain and suffering compensation.
For claims between $7,000 and $35,000, your compensation is calculated as (claim value – $7,000) x 1.25. So, for example, if your claim is worth $10,000, you would receive ($10,000 – $7,000) x 1.25 = $3,750 in pain and suffering compensation.
For claims over $35,000, you’ll receive the full value of your claim. This $35,000 threshold is correct as of 1 July 2024 and will increase each year with inflation.
Australian Capital Territory
In the ACT, there’s no cap on compensation for pain and suffering, and you don’t have to meet a minimum impairment threshold to make a claim.
However, the amount you receive will depend on how much the injury has impacted your life, considering things like the severity of the injury, and how it affects your ability to work, socialise, and enjoy everyday activities.
The judge will also look at factors like your age, potential future economic loss, earning capacity, and any previous injuries. Plus, the court will consider past decisions in similar cases to help determine a fair compensation amount.
How to start your pain and suffering claim
If you’ve been injured because of someone else’s negligence, it’s important to act quickly. Start by visiting your GP to get your condition diagnosed and ensure you receive the right treatment. Your doctor can also provide a medical certificate, which is a key piece of evidence for your claim.
Once your immediate medical needs are taken care of, it’s time to speak with a specialist personal injury lawyer. We’ll help you with every aspect of your claim, including:
- Initial consultation: we’ll explain if you’re entitled to pain and suffering compensation and walk you through the personal injury claims process.
- Treatment and support: your lawyer will ensure you get the support and time off work you need to recover fully. You’ll also have access to our trusted doctors, who can provide advice and treatment for your injury.
- Gathering detailed evidence: including medical records, witness statements, and expert testimony. While pain and suffering claims often lead to substantial lump-sum settlements, they require far more proof than basic workers compensation or CTP claims. Without strong evidence, you risk missing out on the full compensation you deserve.
- Injury assessment: we’ll help you navigate the injury assessment process, ensuring it’s fair and that your ISV or WPI accurately reflects the impact of your condition. If your injury has already been assessed and seems too low, we’ll challenge the result with support from our national network of medical professionals.
- Negotiations: your lawyer has the experience to go head-to-head with even the largest insurers. We’ll advocate for you at every step, so you receive the maximum compensation for your injury.
Whether your injury is recent or something you’ve been dealing with for years, reach out to us today. We’ve helped thousands of Australians secure the pain and suffering compensation they deserve, and we’re ready to do the same for you.
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