How do pain and suffering payouts work, and what qualifies?

Published 20 Sep 2020

When you’ve suffered a serious personal injury, it can take a significant amount of compensation to get you back on your feet and assist you in your recovery. State governments across Australia maintain schemes to determine how these payments are made, and the amounts you can be awarded.

Payouts following an accident typically fall into two categories. In Queensland, these are termed economic loss and general damages. The first consists of payments calculated based on the direct monetary impact of your injuries. For instance, the medical bills for your recovery and rehabilitation are filed under economic losses, as are lost income payments for the time in which you are unable to work.

The second category, general damages, is associated with pain and suffering from your injuries, as well as continuing harm to your quality of life in the months and years to come. There is naturally more ambiguity in this scale than in economic losses: While there is ample documentation of how much a medical procedure costs or what the contents of a paycheck should total, it is harder to put a monetary value on pain and suffering.

The answer the QLD government has come up with is a numerical system, as laid out in the Civil Liability Act 2003 and periodically updated through statutes such as the Civil Liability Regulation 2014. By delving into these laws, you can determine what your compensation may be for a range of long-lasting and serious injuries, and what the maximum values associated with this repayment scheme are.

How does the ISV scale work?

The ISV scale, implemented in the Civil Liability Act 2003, is a 1-100 calculation of how badly someone has been hurt. Its lowest end, at 0, equals a harm not severe enough for any award of damages, while 100 equals the gravest injury a person can receive and survive. Courts are responsible for using this scale to assess a person’s injuries, and they are under instructions to consider both regulations and the precedent set in previous cases based on similar injuries.

Courts have to release the justification for an ISV rating if it seems to differ seriously from the previous amounts set out regarding injuries of that type. This goes in both directions, meaning either an unusually high or surprisingly low assessed injury value will have to come with an explanation of mitigating factors from the judge.

What are the types of injuries recognized by the ISV scale?

The ISV scale in QLD is tied to the type of injury sustained and the severity of harm suffered. There are many categories of injury both physical and mental, as laid out in the Civil Liability Regulation 2014. The general divisions are:

  • Central nervous system and head injuries: This group of issues goes beyond the head itself and includes damage that prevents a person from using their limbs to their full extent. Paraplegia and quadriplegia fall under this category, as do brain injuries.
  • Mental disorders: Disorders that affect the mind but do not have an outward physical impact have their own category and are graded on a scale that ranges from minor to moderate, serious and extreme, each with its own point value on the ISV scale.
  • Facial injuries: There are two types of facial injuries recognised by the government’s system. Skeletal injuries are considered separate from scarring. Skeletal injuries include not just the bones but also the teeth and gums.
  • Injuries affecting the senses: The breakdown of sense injuries includes several sub-categories, as a person can suffer from sight loss, hearing impairment, taste or smell damage, or a combination of two or more of these effects. This is the category under which injuries to the ears and eyes fall.
  • Injuries to internal organs: The Civil Liability Regulation’s approach to internal damage is very granular, allowing judges to determine a value that exactly lines up with the type and amount of harm a person has suffered. For example, digestive tract injuries are divided up into ones caused by trauma and those that occur without trauma. In all, there are 12 classes of organs injuries recognised by the government.
  • Orthopedic injuries: While loss of limb function caused by nervous system injury falls under the first group of issues, there is a separate category for limbs and extremities harmed by physical trauma. The amputation of fingers falls under this category, as do pelvis damage or the partial or complete loss of a limb.
  • Scarring to parts of the body other than the face: While facial scarring is treated as a facial injury, scars suffered elsewhere are considered on their own scale of seriousness.
  • Burn injuries: Burns are their own category of injury, as harm caused by burning may have very different effects than damage to a body part that originated from another source, such as a fall or a sharp object.
  • Injuries affecting hair: Serious or extreme injuries that impact a person’s hair or ability to grow hair are subcategories within this type of harm. Body hair loss is classified as roughly equivalent to a moderate injury that causes head hair loss.
  • Dermatitis: While never rising above an ISV score of 20 even in the most extreme cases, dermatitis causing cracking and soreness of the skin is a recognised class of injury, one which may also have a psychological impact on its sufferers.

If you have suffered one or more of these conditions, you may be eligible for compensation for general damages that reflect your pain and suffering as well as loss of enjoyment of life. If there is more than one injury, this is taken into account, though the resulting value can’t be higher than 100 and should generally be capped at 25% higher than the ISV rating of the “dominant” injury. Otherwise, the court must state the special circumstances for the high number assigned. The monetary value of the resulting personal injury claim will be determined and capped by the ISV statistics laid out in the Civil Liability Regulation 2014.

How much compensation can you receive under the ISV system?

Not only is there a calculation formula to determine how much a claim is worth in QLD, it has two components. First, the judge pays a base amount of compensation and then adds on a variable amount of damages. The scale was designed to ramp up over time, reflecting inflation and the fact that the same dollar-amount payment in 2014 and 2020 will not represent the same benefits.

According to the most recent version of the figures, which apply to injuries suffered on or after July 1, 2020, the base values awarded to injured plaintiffs range from zero dollars for incidents with an ISV of 5 or less to $343,000 for the most serious injuries, ranging from 90-100. A variable amount is added onto these, with the ISV multiplied by an amount that rises in increments.

For example, a recent whiplash injury with an ISV of 7 would incur the following:

  • Base damages: $8,100, because the value is under 10 but more than 5
  • Variable damages: $3,780, (ISV-5) x $1,890, the amount for ISV between 5 and 10
  • Total: $8,100 + $3,780 = $11,880

For the most serious possible accident, with an ISV of 100, the math would be:

  • Base damages: $343,000, the 90-100 ISV base value
  • Variable damages: $55,700, (ISV-90) x $5,570, the amount for the 90-100 ISV bracket
  • Total: $343,000 + $55,700 = $398,700

Therefore, that figure of $398,700 is the largest possible general damages award for an accident suffered after July 1 of 2020.If you have been injured and have suffered harm that is causing lasting pain and suffering or negatively affecting your quality of life, you should have experienced solicitors on your side to ensure the court awards you the proper amount you are owed. Speak with Gerard Malouf and Partners’ expert team for advice on starting your case – with our no-win, no-fee guarantee, you take no financial risk. Call us on 1800 004 878 or email your enquiry today.

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