Can I make a pain and suffering claim?
You may be able to claim pain and suffering compensation if your injury was caused by someone else’s negligence. Legally, negligence means a person or organisation had a duty to keep you safe but failed — either by acting carelessly or by not taking reasonable precautions.
Some common examples include:
In every case, you’ll need to show that your injury was directly caused by someone else’s negligence. This can be complex, which is why it’s best to get advice early. An experienced lawyer can help gather evidence, prove the link between your injury and their actions, and put you in the strongest position for a successful claim.
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Pain and suffering settlement examples
To give you an idea of what your settlement might look like, here are three recent client case studies. Each claim covers both economic losses (such as medical bills and lost income) and our client’s pain and suffering.
Emma wins $1.55 mil for severe trauma after workplace slip and fall
After a slip-and-fall at work, Emma suffered severe injuries to her neck, back, shoulder, knee, and ankle, requiring extensive surgery. Her accident was caused by wet floors in the workplace bathroom, so our lawyers helped her file multiple claims against not only her employer, but also the building manager, cleaners, and contractors.
To build her case, we gathered expert evidence to show how each party’s negligence directly led to Emma’s injuries and the significant pain and suffering she experienced. Medical reports and witness statements highlighted the ongoing physical, emotional, and financial impact of her condition.
Through detailed negotiations, we secured a $1.55 million settlement, recognising Emma’s pain and suffering and covering the costs of her treatment and care.
Esther secures $1.2 mil for pain and suffering due to delayed diagnosis
Esther went to a public hospital with persistent groin pain, but doctors failed to detect a suspicious mass on her scans. This critical oversight meant her rare, aggressive cancer wasn’t diagnosed until much later. By the time it was found, Esther required invasive treatment, including surgery, chemotherapy and radiation, and she continues to live with lasting complications.
We built her case around the severe pain and suffering caused by this delay. With evidence from medical experts, we showed that proper investigation at the time would likely have led to an earlier diagnosis, less intensive treatment, and a better prognosis. Instead, the hospital’s negligence left Esther facing not only greater physical suffering, but also emotional distress and a diminished quality of life.
Her case settled for $1.5 million, covering her medical costs, financial losses, and the profound impact on her life.
Angela wins extra $300k for pain and suffering — despite insurer saying she wasn’t entitled
Angela’s life was turned upside down after a serious car accident left her with multiple injuries and ongoing pain. Although she eventually returned to work, she could only manage reduced hours and missed out on a promotion. The biggest impact wasn’t just financial — it was the constant pain, fatigue, and loss of independence that affected every part of her life.
The insurer accepted responsibility for the accident but refused to recognise Angela’s entitlement to pain and suffering compensation. They argued her injuries weren’t serious enough to meet the 10% WPI threshold. To challenge this, we arranged assessments with independent specialists in orthopaedics and neurology, both of whom confirmed the extent of Angela’s chronic pain and limitations. We presented this evidence before the Medical Tribunal, which ruled in her favour despite the insurer’s objections.
The insurer then appealed the decision. We worked quickly with our medical experts to prepare a strong response. The appeal was dismissed, and Angela was awarded an additional $300,000 for pain and suffering. In total, her claim settled for $750,000 plus legal costs, giving her financial security and recognition of the hardship she continues to endure.
What is the average pain and suffering settlement in Australia?
Across Australia, there’s not really an average settlement for pain and suffering. The amount depends entirely on the facts of your case, including factors like:
How are pain and suffering settlements calculated?
Because pain and suffering is personal and subjective, it’s more complex than other personal injury claims. Courts don’t just look at time off work or medical bills; they consider how the injury has affected your life. This makes pain and suffering claims harder to prove, but they can also result in substantial lump sum payouts.
In most states, you’ll need to meet a minimum impairment threshold before you can claim. This is assessed by an independent medical specialist, who gives you a rating of permanent impairment. Depending on where you live, it’s called Most Extreme Case (MEC), WPI (Whole Person Impairment) or ISV (Injury Scale Value).
The higher your rating, the larger the payout may be, though each state also sets maximum pain and suffering settlement amounts.
Workers compensation, public liability and medical negligence claims
| State | Requirements for claiming pain and suffering compensation | Maximum compensation for pain and suffering |
| NSW | At least 15% of the Most Extreme Case (MEC). | $761,500 |
| QLD | Injury Scale Value (ISV) of 1 or higher. | No cap except for workers compensation claims ($442,195) |
| VIC | At least 5% Whole Person Impairment (WPI) for physical injuries or 10% WPI for psychological injuries. | $713,780 |
| SA | The injury must have impacted you for over 7 days or your medical expenses reach the ‘prescribed amount’ (currently $7,440). | $478,500 |
| WA | At least 5% WPI and meet the minimum claim value (currently $25,500). | No cap |
| TAS | Minimum claim value must be met (currently $7,000). | No cap |
| ACT | None | No cap |
Remember, if you’re in NSW, you can only get a workers comp pain and suffering settlement if you’re an emergency services worker. However, you’re still entitled to weekly payments through a standard workers compensation claim.
And if an injury means you’re permanently unable to return to work, you could also get a lump sum benefit through a Total and Permanent Disability (TPD) claim. It doesn’t matter how the accident happened or who’s to blame.
Car accident claims
| State | Requirements for claiming pain and suffering | Maximum compensation for pain and suffering |
| NSW | Your injury must be assessed at over 10% WPI. | $654,000 |
| Victoria | You must have either:
• 30% WPI or
• A serious injury certificate from the Transport Accident Commission
| $663,580 |
| Queensland | You must have an ISV of 1 or higher. | $456,950 |
| South Australia | You must have an ISV of 11 or higher. | $405,780 |
| Western Australia | • Your injury must be assessed at over 5% Whole Person Impairment (WPI), and
• Your claim must be worth over $25,500. This amount increases every year with inflation.
| $485,000 |
| Tasmania | Your claim must be worth more than $7,000. This minimum value increases every year due to inflation. | No cap on damages. |
| ACT | No requirements for claiming non-economic loss. | No cap on damages. |
To learn more about how your pain and suffering settlement is calculated, head to our complete guide or reach out to our specialist lawyers.
And keep in mind: pain and suffering is just one part of a personal injury claim. You may also be entitled to compensation for medical expenses, lost wages, reduced earning capacity, and future care costs.
Frequently asked questions
To succeed in a pain and suffering compensation claim, you generally need to prove four key elements:
- Duty of care: The responsible party had a legal obligation to keep you safe. This is automatic in some relationships, like doctor/patient or employer/employee, but in other cases, expert evidence may be needed to prove that you were owed a duty of care.
- Breach of duty: The responsible party failed to meet that duty, either through careless action or inaction. For example, a surgical error or an employer not providing proper safety equipment. This is judged against what a competent person with the same training would reasonably do in a similar situation.
- Causation: Your injury must have been directly caused by the breach. You’ll also need to prove that your injury was a ‘foreseeable result’ of the breach of duty of care. Put simply, your injury wouldn’t have occurred ‘but for’ the negligent act or omission.
- Pain and suffering: You need to show that the injury caused physical or emotional pain beyond just financial losses.
Whether you can claim pain and suffering for whiplash depends on how serious your injury is. In most states, minor whiplash won’t meet the minimum impairment threshold, so you’d only be entitled to things like medical expenses and lost income.
But if your whiplash causes long-term pain, restricted movement or the need for ongoing treatment, you may qualify for pain and suffering. An independent medical specialist will usually assess whether your injury is severe enough to pass the threshold.
For example, if your neck strain heals within a few weeks, you probably won’t be eligible. But if you develop chronic neck pain that affects your ability to work or live normally, you may be entitled to significant compensation.
To learn whether your whiplash qualifies for a pain and suffering settlement, reach out today. In a free consultation, our lawyers will explain what you’re entitled to and the best strategy for securing your full settlement.
Across Australia, the average settlement for a car accident depends on many factors, like how seriously you’re injured, whether you can go back to work, and what state you live in.
As an example, the average car accident settlement in NSW from October 2023 – 24 was between $125,000 and $130,000, according to the State Insurance Regulatory Authority (SIRA). However, this amount covers more than just pain and suffering — taking into account things like lost wages, medical bills and ongoing care needs.
While there’s no average settlement for car accident pain and suffering, there is a maximum amount you can receive. As of 2024, this is $654,000. But keep in mind, this amount increases every year with inflation.
To get a better idea of what car wreck settlement you can expect, get in touch today. Our lawyers have helped hundreds of injured people secure the pain and suffering compensation they deserve, and we’re ready to do the same for you.
