Pain and suffering compensation claims

Commonly asked questions about pain and suffering personal injury claims

Pain and suffering claims might include compensation for a range of factors.

  • Actual pain and suffering
  • Future pain and suffering as a result of the accident
  • Inability to participate in former activities, such as sport or hobbies.
  • Impacts on functional capacity
  • Psychological injuries, such as stress, depression or post-traumatic stress disorder
  • Loss of enjoyment and amenity of life
  • Disfigurement

There is no clear-cut answer to the question of how pain and suffering claims are calculated. Different jurisdictions deal with pain and suffering claims differently. For example, workers compensation, motor accident, common law, Civil Liability Act, Australian Consumer Law and pure mental harm cases have various caps and thresholds that modify or limit claims for pain and suffering.

We look to previous decisions for guidance on how similar cases were decided. Calculating a claim involves assessing where on the scale an injury lies by analysing a range of factors:

  • Severity of the pain and suffering, injury or damages
  • Any pre-existing conditions, disabilities or other factors that may have an impact on your life, particularly in the future (for example, pre-existing degenerative conditions)
  • How the injury has affected your lifestyle
  • Past and future treatment required as a result of the injury, particularly where that treatment may be painful, invasive or distressing
  • Inability to perform various tasks and functions
  • Primary and consequential psychological difficulties such as adjustment disorders, post-traumatic stress disorders (PTSD), anxiety and depression
  • Your age and life expectancy

Yes. In Australia almost all jurisdictions have enacted a maximum that can be claimed by way of non-economic loss. In addition, depending on the law governing your claim, there may be minimum thresholds and objective tests that you may be required to meet before any claim can be made.

It is important to seek legal advice in relation to the caps and thresholds that apply in your particular circumstances.

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