Every person who is involved in an accident undoubtedly suffers in one form or another. Whether a person sustains physical and/or psychological injuries, it is a recognised principle under NSW law that the injured person must be compensated for their pain and suffering if their injuries are considered to have met certain legal thresholds.
This compensation is known as non-economic loss (NEL) or general damages for pain and suffering.
NEL is particularly relevant in motor vehicle accident claims and claims made under the Civil Liability Act. The law in these types of cases have developed certain thresholds before an injured person can claim compensation for NEL.
For motor vehicle accident claims, the injured person’s whole person impairment must be assessed at over 10%. For claims made under the Civil Liability Act, the severity of a person’s injuries must be assessed by a court to be at least 15% of a most extreme case. A most extreme case may be someone who has a severe brain injury and is quadriplegic.
Once these thresholds are met, then it is up to a judge or an Assessor (in motor accidents claims heard at the Claims Assessment and Resolution Service (CARS)) to determine the amount for NEL that the injured person will receive.
Guiding factors that have developed from past cases include the following:
- The age of the injured person. A younger person may be entitled to a higher amount for NEL than an elderly person because of the fact that he/she has a longer time to suffer.
- The continuing effects of the injuries and impact on the injured person’s life.
- The injured person’s pre-accident state of health, lifestyle, and participation in any recreational activities.
- The credibility of the injured person’s account of the continuing effects of the injuries. Judges and Assessors tend to accept the evidence of honest and genuine claimants, while disregarding (or put less weight on) those that blatantly exaggerate.
- Whether the injured person was required to undergo surgery, or will continue to require surgery in the future.
- Whether the injured person has any scarring or disfigurement.
The courts and CARS regularly determine different cases each with its own unique set of facts and circumstances. The law in relation to compensation for NEL will therefore continue to develop.
If you have suffered a serious injury in an accident that wasn’t y0ur fault, you may be entitled to compensation for non-economic loss. To arrange a free no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800 or alternatively, make an online enquiry.
Written by Erick Culala.
Erick Culala is a solicitor in Emily Harris’ Practice Group. Erick has worked on a variety of compensation matters involving product liability claims, public liability claims, motor vehicle accident claims, and workers compensation.