Pain and suffering damages

Pain and Suffering Damages: A Comprehensive Guide by Personal Injury Lawyers in Brisbane

When accidents or negligence cause physical and emotional harm, individuals often seek compensation to recover not only economic losses but also non-economic damages like pain and suffering. If you or someone you know has been injured in Queensland, understanding how pain and suffering damages are assessed and claimed can make a significant difference in your case. Personal injury lawyers in Brisbane specialise in guiding clients through this complex area of law, ensuring fair compensation for the hardships endured.

In this detailed guide, we’ll explore everything you need to know about pain and suffering damages, focusing on how claims are handled in Brisbane under Queensland’s legal framework.

What Are Pain and Suffering Damages?

In Queensland personal injury claims, pain and suffering and loss of amenities of life are components of what is commonly referred to as general damages. These are non-economic damages meant to compensate for the intangible impacts of an injury. Here’s a breakdown:

Pain and Suffering

This refers to the physical and emotional distress caused by the injury. It includes:

• Chronic pain or discomfort from the injury.
• Emotional distress, such as anxiety, depression, or trauma stemming from the incident.
• The impact of the injury on your overall quality of life.

Loss of Amenities of Life

This focuses on how the injury has diminished your ability to enjoy life or partake in activities you previously enjoyed. Examples include:

• Inability to participate in hobbies, sports, or other leisure activities.
• Struggles with daily tasks or activities of independent living.
• Impact on relationships or social interactions.

The Legal Framework for Pain and Suffering Damages in Brisbane

In Queensland, pain and suffering claims are governed by the Civil Liability Act 2003 (Qld) and the accompanying Civil Liability Regulation 2014. These laws establish a structured system for assessing general damages, ensuring fairness and consistency in compensation.

1. Injury Scale Value (ISV)

The Injury Scale Value (ISV) is the cornerstone of calculating pain and suffering damages in Queensland. The ISV assigns a numerical value between 0 and 100 to injuries based on their severity. This value determines the compensation range for each type of injury.

• Minor Injuries: Such as soft tissue damage, may receive a low ISV (e.g., 0-5).
• Severe or Catastrophic Injuries: Such as quadriplegia or brain injuries, receive higher ISV scores (e.g., 50-100).

2. Compensation Caps

Each ISV range corresponds to a monetary limit, ensuring that compensation remains proportional to the injury’s severity. The Civil Liability Regulation 2014 provides tables that outline these limits, ensuring uniformity in how damages are awarded.

The Injury Scale Value (ISV) tables in Queensland list a wide range of injuries across different categories to help determine compensation for general damages in personal injury claims. The ISV tables are governed by the Civil Liability Regulation 2014 (QLD) and assign a numerical value (the ISV) to various injuries, which represents their severity on a scale from 0 to 100.

Here’s an overview of the injury categories covered:

1. Head Injuries and Brain Damage

• Minor head injuries.
• Mild, moderate, or severe brain injuries.
• Skull fractures.

2. Neck Injuries

• Whiplash or soft tissue injuries.
• Fractures or dislocations.
• Severe spinal cord damage affecting the neck.

3. Back Injuries

• Minor soft tissue injuries.
• Fractures, dislocations, or herniated discs.
• Severe spinal cord damage affecting mobility or function.

4. Shoulder, Arm, and Hand Injuries

• Rotator cuff injuries.
• Fractures or dislocations of the arm or shoulder.
• Loss of fingers or entire hand.
• Permanent loss of function or severe deformities.

5. Leg, Knee, and Foot Injuries

• Fractures or ligament damage in the knee.
• Amputations of toes, feet, or legs.
• Permanent loss of function or severe deformities.

6. Spinal Cord Injuries

• Paraplegia or quadriplegia.
• Disc injuries or fractures leading to chronic pain or impairment.

7. Chest Injuries

• Rib fractures or punctured lungs.
• Damage to internal organs like the heart or lungs.

8. Pelvis and Abdomen Injuries

• Fractures of the pelvis or hip.
• Damage to internal organs (e.g., kidneys, liver, bladder).

9. Facial and Dental Injuries

• Fractures of facial bones (e.g., jaw, nose, cheekbones).
• Loss or damage to teeth.
• Scarring or disfigurement.

10. Psychological and Psychiatric Injuries

• Adjustment disorders.
• Post-traumatic stress disorder (PTSD).
• Severe psychiatric conditions, including depression and anxiety.

11. Scarring and Disfigurement

• Minor to severe scarring on any part of the body.
• Burns or other injuries causing significant visible changes.

How the ISV Is Applied

• Each injury has a specific range of ISVs depending on severity (e.g., minor, moderate, or severe).
• The ISV assigned considers the injury’s long-term impact, including pain, suffering, and loss of amenities of life.

For precise details, consulting the Civil Liability Regulation 2014 (QLD) or legal advice is essential, as the full ISV table includes detailed descriptions and specific ranges for various injuries.

Common Scenarios for Pain and Suffering Claims in Brisbane

Pain and suffering claims can arise from various situations, including:

Motor Vehicle Accidents

Car accidents are a leading cause of personal injury claims in Brisbane. Injuries from crashes—ranging from whiplash to severe spinal damage—can lead to substantial pain and suffering compensation.

Workplace Injuries

Employers have a duty to provide safe working environments. When they fail, resulting injuries may lead to pain and suffering claims through workers’ compensation or common law claims.

Public Liability Claims

Injuries in public spaces, such as slips and falls in shopping centers or parks, are common causes of personal injury claims. These cases often involve proving negligence on the part of property owners or managers.

Medical Negligence

Cases where inadequate medical care causes harm can lead to claims for pain and suffering. Examples include surgical errors, misdiagnoses, or failure to treat conditions appropriately.

How Pain and Suffering Damages Are Calculated in Brisbane

Calculating pain and suffering damages involves a combination of legal guidelines, evidence, and individual circumstances.

Step 1: Assessing the ISV

The ISV is determined by referencing schedules in the Civil Liability Regulation 2014. Factors influencing the ISV include:

• The type and extent of the injury.
• Whether the injury has long-term or permanent effects.
• The claimant’s age, lifestyle, and occupation.

Step 2: Adjusting for Individual Impact

While the ISV provides a baseline, the claimant’s unique circumstances can influence the final compensation amount. For example, a young athlete who loses mobility due to an accident may receive higher compensation than an older individual with similar injuries, given the greater impact on their quality of life.

Step 3: Monetary Value

Once the ISV is determined, it is translated into a monetary figure using the compensation tables outlined in the regulations.

Factors That Affect Pain and Suffering Claims

1. Severity of the Injury

More severe injuries with long-term or permanent effects typically attract higher ISV ratings and compensation amounts.

2. Emotional and Psychological Impact

Emotional distress, anxiety, or PTSD resulting from the injury can significantly increase pain and suffering damages. Psychological assessments are often necessary to substantiate these claims.

3. Pre-existing Conditions

If the claimant had a pre-existing condition, the compensation may be adjusted to reflect the portion of suffering caused by the new injury. Expert medical evidence is crucial in these cases.

4. Evidence Quality

Strong evidence, such as medical reports, witness statements, and personal testimony, is essential to prove the extent of pain and suffering.

Time Limits for Pain and Suffering Claims in Brisbane

Queensland law imposes strict time limits for personal injury claims, including pain and suffering damages. Generally, claims must be lodged within three years of the injury date. Exceptions may apply for:

• Minors: Time limits often commence from the age of 18.
• Injuries involving delayed symptoms: Extensions may be granted in certain cases.

Failing to file a claim within the specified time frame can result in the loss of your right to compensation, making prompt legal action crucial.

Why You Need a Personal Injury Lawyer in Brisbane

Navigating the complexities of pain and suffering claims requires expert legal guidance. Here’s how a Brisbane personal injury lawyer can help:

1. Assessing Your Claim

An experienced lawyer evaluates your case, determining its strength and the potential compensation amount.

2. Gathering Evidence

From medical records to expert testimony, a lawyer ensures that all necessary evidence is collected and presented effectively.

3. Negotiating with Insurers

Insurance companies often aim to minimize payouts. A lawyer advocates on your behalf to secure a fair settlement.

4. Representing You in Court

If negotiations fail, your lawyer will represent you in court, fighting for the compensation you deserve.

Maximising Pain and Suffering Damages

To increase your chances of receiving fair compensation:

1. Seek Immediate Medical Attention: Prompt diagnosis and treatment establish a clear link between the injury and the incident.
2. Document Everything: Keep records of medical appointments, treatments, and personal accounts of your suffering.
3. Engage a Specialist Lawyer: Brisbane-based personal injury lawyers understand local laws and have experience handling similar claims.

Do people exaggerate their symptoms?

It is not uncommon for some individuals to exaggerate pain or other symptoms in personal injury claims, although it’s important to recognize that the vast majority of claimants are genuine. Exaggeration can occur for various reasons, such as attempting to secure a higher payout or feeling that their pain, even if minor, deserves greater compensation.

Reasons for Exaggeration

1. Financial Motivation: People may perceive that a higher level of pain will result in more compensation.
2. Emotional Response: Feelings of injustice or anger about the incident may lead individuals to amplify their suffering.
3. Subjectivity of Pain: Pain is inherently subjective and difficult to measure, making it easier for someone to exaggerate without clear evidence.
4. Legal Misconceptions: Some believe exaggeration is necessary to be taken seriously or to negotiate better compensation.

How Exaggeration is Detected

Insurance companies, legal teams, and medical professionals are trained to identify inconsistencies or exaggeration in claims. They may use:

• Medical Evidence: Comparing subjective reports of pain with objective medical findings (e.g., imaging results).
• Surveillance: Monitoring claimants’ activities to see if they align with their reported limitations.
• Behavioural Assessments: Observing demeanour during medical evaluations or court appearances.
• Functional Testing: Conducting physical tests to evaluate the extent of the claimant’s abilities and limitations.

Consequences of Exaggeration

If exaggeration is proven, it can damage the claimant’s credibility and lead to:

• Reduction or denial of compensation.
• Legal penalties for fraudulent behaviour.
• Strained relationships with legal representatives or medical professionals.

Key Takeaway

While exaggeration does occur, the legal and medical systems have processes in place to ensure that compensation is fair and based on genuine evidence. Claimants should always be truthful in reporting their pain and limitations, as honesty leads to stronger cases and fair outcomes.

 

Case Study – Loss of Enjoyment of life

Chris’s Bicycle Accident Claim Story

See how we helped Chris secure $150,000 and return to running after his accident.

A good working relationship between a client and lawyer is critical. The client is often facing the most difficult, uncertain time of their life, and having a lawyer represent them in that time should be easing a burden and not adding more stress.

Chris* and his legal team at Trilby Misso are a great example of a team working well together.  The team took the time to understand the loss of enjoyment of life Chris was suffering.

Chris suffered serious spinal injuries as a result of a bicycle accident. He was a fit man, often training for triathlon and marathon events.

Chris didn’t just face a long road of rehabilitation, and time off work, the impact on his active and fit lifestyle was devastating to him. The team at Trilby Misso understood this and made sure the evidence and submissions to the insurer took this into account.

15 months after the accident the team were able to reach a settlement of $150,000. Chris was also able to run a half marathon and was on the road to recovery. The impact on Chris’s active lifestyle was understood by the team at Trilby Misso. The team were also inspired by Chris’s strong mindset and determination and accepted his challenge to train and run in a local ParkRun.

*Names have been changed to maintain confidentiality

Conclusion: Seeking Justice with a Personal Injury Lawyer in Brisbane

Pain and suffering damages are a critical aspect of personal injury claims, offering recognition and compensation for the profound impact injuries can have on a person’s life. While the legal framework in Queensland ensures consistency, navigating the system can be challenging without professional assistance.

If you’re in Brisbane and have suffered an injury due to someone else’s negligence, a personal injury lawyer can provide the expertise and support you need to secure the compensation you deserve. Don’t wait—contact a trusted personal injury lawyer in Brisbane today to discuss your case and take the first step toward justice.

Read more about compensation and damages in our blogs.