Pain and suffering settlement examples Victoria

Common law claims are another type of compensation payment. These can amount to very large payments, certainly larger than lump sums paid under the impairment benefit scheme. Because negligence is a key factor in winning a claim, along with the seriousness of the injury, a common law action is effectively the act of suing an employer.

The payments are large at least in part because they take into account the severe nature of the injury and the impairment, the level of medical and personal care that will likely be required into the future, and the pain and suffering endured.

Cases can be prolonged, sometimes taking years to settle and sometimes needing to be contested in the courts. You need to have seriously good lawyers who are practiced in common law fights to be confident in the result, but the financial rewards are considerable. Pursuing legal actions through the courts can be a costly exercise, requiring the additional medical reports, hearings, barrister briefings, and negotiations with the insurance claims agents used by WorkCover. You should seek an experienced legal team which offers a watertight No Win No Fee policy, and preferably one which also covers you for expenses should your claim not be successful.

The important thing to understand is that the quality among law firms in the WorkCover Common Law field is extremely patchy. A quality law firm tries to spare the worker a costly and lengthy court process, and which has one of the highest success rates in the profession.

Our WorkCover Common Law compensation lawyers have initiated thousands of claims on behalf of clients and we have a high success strike rate among those cases that we represent. Of these successful cases, close to 80% are settled in mediation prior to going to court.

Ryan Carlisle Thomas uses highly experienced senior barristers to present our case as if we were presenting it in court and therefore aim and get a good result for our client early on without having to go to court.

For more information see: How Does a WorkCover Common Law Lump Sum Claim Work?

How big a common law payment? A rough guide

Note: these amounts are awarded for pain and suffering. Additional lump sums are often obtained for loss of earnings.

The Wrongs Act is the principal statute governing claims for damages for economic and non-economic loss arising from personal injury and death in Victoria, as a result of negligence or fault. The Wrongs Act applies to cases involving claims for compensation such slips or falls in public places, and harm as a result of medical treatment. Where negligence is established damages can be awarded in the form of monetary compensation for the injuries sustained.

The Wrongs Act imposes several limits on access to compensation for economic and non-economic loss arising from personal injury and death in Victoria.

Damages for non-economic loss 

Part VBA of the Wrongs Act provides for the recovery in limited circumstances of damages for non-economic loss, such as, pain and suffering, loss of amenities of life, or loss of enjoyment of life. Under Part VBA of the Wrongs Act, a person (the claimant) can only recover damages for non-economic loss caused by the fault of another person (the respondent) when the injury is a ‘significant injury’. A copy of the Wrongs Act is available on the Victorian Legislation and Parliamentary Documents website (External link)

What is a significant injury?

Injury means personal or bodily injury and includes: prenatal injury, psychological or psychiatric injury, disease and aggravation, acceleration or recurrence of an injury or disease.

Some injuries are defined to be significant injuries without any further assessment. These are loss of a foetus, loss of a breast or psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or foetus or child before, during or immediately after the birth and asbestos-related conditions.

For other kinds of injury, a determination of what constitutes a significant injury will usually require an assessment of the degree of impairment caused as a result of the injury.

Waiver of assessment

The Wrongs Act allows a respondent to agree to waive the requirement for an assessment of degree of impairment. A request by a claimant for the respondent to waive the assessment requirement must include the information prescribed in Regulation 7 of the Wrongs (Part VBA Claims) Regulations 2015. The Wrongs (Part VBA Claims) Regulations 2015 are available on the Victorian Legislation and Parliamentary Documents website (External link)

To request a waiver of assessment see below.

Assessment process

If the injury is assessed, the degree of permanent impairment must satisfy the relevant threshold level in order to be a significant injury. The relevant threshold levels are ten percent or more (psychiatric injury), five per cent or more (spinal injuries), or more than five per cent (injuries other than psychiatric or spinal injuries).

An assessment of the degree of impairment must be made by an approved medical practitioner, who must follow certain guidelines and methods in order to make the assessment. All impairments from injuries arising from the same incident must be included in one assessment. However, psychiatric or psychological impairment that arises as a secondary consequence of a physical injury must be ignored in calculating the degree of impairment.

The approved medical practitioner must then provide the claimant with a certificate of assessment stating whether or not the degree of impairment satisfies the relevant threshold level. The practitioner must not state the specific degree of impairment in the certificate of assessment. A certificate may be issued whether or not all the injuries have stabilised.

The claimant must give the respondent a copy of any certificate of assessment that they intend to rely on.

The two types certificates that can be given are contained in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015, (see below):

• Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury (Form 1 in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015)
• Certificate of Assessment of Degree of Impairment where Injury has not Stabilised (Form 2 in the Schedule to the Wrongs (Part VBA Claims) Regulations 2015)

These certificates must be served on the respondent accompanied by the ‘prescribed information’. The prescribed information is contained in Regulation 8 of the Wrongs (Part VBA Claims) Regulations 2015 (see below).

Note that these forms and templates do not provide medical practitioners with all of the information relevant to making assessments under Part VBA of the Wrongs Act. Medical practitioners need to have undertaken an approved training course if they wish to make assessments under Part VBA of the Wrongs Act.

Referring a medical question to a medical panel

If the respondent receives a certificate of assessment from the claimant, the respondent can either accept the assessment or refer a medical question in relation to the assessment to a medical panel for determination.

In these circumstances, a ‘medical question’ means a question concerning whether or not the degree of impairment resulting from the injury to the claimant alleged in the claim satisfies the threshold level. The referral is made in writing and sets out the medical question and the information prescribed in Regulation 9 (Form 5). The template for is available to download below. There is more information about the medical panel referral process available on the Medical Panels website (External link)

A medical panel is usually constituted by two or more medical practitioners who have been appointed to a list of practitioners eligible to be nominated to a medical panel by the Governor in Council. Once a matter has been referred to the panel, they may ask a claimant to meet with them to answer questions, to supply them with relevant documents or to submit to a medical examination by the panel or a member of the panel. The medical panel may also, with the consent of the claimant, ask a registered health practitioner who has examined the claimant to meet with the panel, answer questions or to supply relevant documents.

A medical panel is not bound by traditional evidence rules or practices but rather can inform itself on any matter it thinks fit. The medical panel must also act informally without regard to technicalities or legal forms.

The respondent who referred the medical question to the panel will be required to cover any fees and costs associated with the referral.

Medical panel determinations

After assessing the degree of impairment of a claimant, a medical panel may issue a certificate of determination on whether the degree of impairment satisfies or will (after injuries have stabilised) satisfy the threshold level. A panel must not state the specific degree of impairment when making this determination.  

Where the panel is unable to determine the medical question (for example, because the injury has not stabilised and the panel cannot determine whether the degree of impairment will satisfy the threshold level once the injury stabilises), the panel may set a time for further assessment within 12 months from the first assessment.

The claimant must file certain documents in court in relation to a claim for damages for non-economic loss. These are set out in section 28LZM of the Wrongs Act, and include, where relevant, the certificate of assessment or agreement to waive assessment, a copy of the medical panel certificate of determination, a statement of deemed acceptance of the assessment or deemed significant injury.

A determination by a medical panel regarding the threshold level of impairment must be accepted by a court in any subsequent proceedings concerning the claim. However, there are limited rights to appeal from an opinion of a medical panel.

Application to court in special cases

A claimant may apply to a court for a determination of significant injury in certain limited circumstances. The court may determine significant injury if it is satisfied that the claim is urgent because of the imminent death of the claimant and the injury would be a significant injury.

Any person wishing to pursue or respond to a claim for damages for non-economic loss is advised to first seek independent legal advice. The information on this website does not constitute legal advice.

For further information, please refer to the Medical Panels website (External link)

Forms

• File

  Form 1 - Certificate of assessment of degree of impairment arising from stabilised injury (DOC, 25 KB)

• File

  Form 2 - Certificate of assessment of degree of impairment where injury has not stabilised (DOC, 25.5 KB)

  What is the average payout for negligence in Victoria?

  These average payouts are usually in the range of 6,000 AUD to 28,000 AUD. If you are dealing with medical negligence, then the average payout in such cases is $650,000. Whereas for car accidents, the average payout is around $150,000. Though these amounts seem reasonable, not everyone can get this compensation payout.

  How is pain and suffering compensation calculated Australia?

  A court will calculate compensation according to each head of damage, considering the injuries sustained, the impact on the claimant's lifestyle and employment, plus costs as a result of the injury as well as reasonable future costs.

  How much can you get out of pain and suffering?

  They usually offer ½ to 1 times your economic damages (medical bills and loss of income) to compensate for your pain and suffering. For example, if your medical bills and loss of income equal $10,000, the insurance company will try to offer up to $5,000-$10,000 for your pain and suffering.

  What are examples of pain and suffering?

  Pain and suffering encompasses both bodily injury and mental anguish, and victims typically find that both are present after an injury..

  Physical Impairment. ... .

  Physical Pain. ... .

  Disfigurement. ... .

  Loss of Quality of Life. ... .

  Loss of Enjoyment of Life. ... .

  Grief. ... .

  Depression. ... .

  Anger..