If you are injured in an accident in Western Australia and have suffered an injury and have made a claim for compensation, you will usually make a claim for ‘pain and suffering’. This is an amount of money that tries to compensate you for things like your loss of enjoyment of life, your incapacity to participate in social and recreational activities, as well as any pain and restriction. This amount is in addition to the other losses that you claim, such as lost earnings and treatment expenses.
To make an assessment the Courts will usually start by looking at your injuries and the treatment that you have needed.
The Court will look at whether your injuries will leave you with permanent impairments or restrictions, and for how long into the future you will continue to need treatment. It stands to reason that somebody who has suffered an injury that required conservative treatment, with no permanent impairment, will be given a much lower award than somebody whose injuries required hospitalization, surgery, and may result in permanent scarring and restrictions in use of a limb. The Court will of course consider factors such as your age, your occupation and how that has been affected, as well as the things that you used to enjoy which have been affected.
But how do you put a dollar value on ‘pain and suffering’?
As a general rule the Court tries to be consistent with its awards so that similar injuries get similar amounts. In addition when it comes to motor vehicle accidents the Court will look at the threshold table that is published annually by the Insurance Commission of Western Australia. Therefore when assessing the value of your claim for ‘pain and suffering’ your legal team, and the insurance company legal team, will look at past court decisions as a guide. With that in mind it is interesting to look at a few recent West Australian assessments:
- Dugan v Pitcher [2021]: Ms Dugan was 17 years old and a passenger in a car that was in an accident. She suffered mild hearing loss, Tinitus, left shoulder pain, jaw pain and headaches and migraine. Pain and suffering was assessed at: $68,180.
- Avery v Player [2021]: Ms Avery was injured in a motor vehicle accident. She suffered a number of injuries: neck and shoulder nerve injury; whiplash; low back pain; PTSD. She was left with permanent reduced strength in her arm and hands and wrists, pain in her jaw, and in her neck and shoulder. The Court assessed her general damages, or, pain and suffering, at $131,400.
- Ciolpan v Swan Transit Services [2020]: MrCiolopan was a bus driver who was injured in an mva. He suffered an injury to a disc in his neck. Significantly he suffered ongoing urinary incontinence and sexual dysfunction as well as Major Depression. The Court assessed his pain and suffering at: $130,000.
- Meldrum v Vassallo [2020]:Mr Meldrum was a passenger in a car that was in a serious accident. He suffered a traumatic brain injury. The Court assessed his pain and suffering at: $212,500.
- Baker v North [2020]: Mr Baker was riding his motorbike when he was involved in a motor vehicle accident and suffered injuries to his shoulder. General damages were assessed at: $83,500
- Mtsambiwa v Zagari [2019]: Mr Mtsambiwa was involved in a rear end collision in car. He complained of neck pain and saw his doctor a couple of times. No further treatment was needed. The Court made an assessment of pain and suffering at: $0
Claiming pain and suffering is a complex area and requires a clear diagnosis of injuries, a concise history of treatment, and a prognosis as to ongoing restrictions and impairments and chance of recovery. Once that has been done an analysis of personal circumstances needs to be done, covering areas such as the affect on career prospects, promotion etc, and capacity to participate in social and recreational activities. It can be a complex assessment. If you are have any questions please contact Lian Hall Injury Law for a chat.
