How are Pain and Suffering Damages Assessed in Personal Injury Claims?

Pain and suffering damages are designed to compensate individuals for their hurt and loss of enjoyment of life following an injury. Due to the individual circumstances of each case, there is no set formula by which these damages are assessed. However, a potential assessment can be drawn from other comparable cases.

The Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon sets out an analytical approach for assessing pain and suffering by identifying the individual’s experience of pain and the disabling effect of the pain.

Understandably, one’s experience of pain is subjective and an objective assessment of that subjective experience is required.The following factors will be largely considered when assessing pain and suffering:

  1. The age of the individual;
  2. The “consequences” as a result of the injuries;
  3. The treatmentundergone to mitigate the loss;
  4. The present treatment and medications taken to manage the injuries;
  5. Medical evidence regarding the debilitating nature of the injury;and
  6. Any pre-existing injuries or post-event injuries.

What consequences are considered when assessing pain and suffering?

Pain and suffering consequences are wide-ranging and can include:

  • Functional, cognitive and psychiatric limitations;
  • Sleep difficulty;
  • Restrictions with self-care;
  • Restrictions with household and domestic duties;
  • Impact on recreational and social activities;
  • Impact on relationships and intimacy;
  • Restrictions with capacity to work; and
  • Inability to continue with activities that previously provided enjoyment.

Recent pain and suffering damages awards

Duman v Kaini [2020] VCC 896 – A 53-year-old man involved in a transport accident developed major depressive disorder and chronic pain disorder. His condition necessitated transcranial magnetic stimulation treatment and electroconvulsive treatment. As a consequence of the accident, he developed interferences with his memory, concentration, motivation and sleep. He was awarded $300,000 for pain and suffering.

Di Pietro v Stockland Development Pty Ltd [2020] VCC 1869 –A 53-year-old worker was trimming a hedge when he stepped on a rock and fell. He sustained a serious lower back injury and underwent a microdiscectomy and laminectomy at the L5/S1 level. He was taking painkillers in the form of Tramadol, Lyrica and Ibuprofen. He was considered a stoic individual who learned to live with the pain. He was awarded $185,000 for pain and suffering.

Meech v Ballan & District Soldiers Memorial Bush Nursing Hospital & Hostel Inc [2020] VCC 854 – A 55-year-old woman slipped on a wet and slippery outdoor landing in the course of her employment.  She sustained a left knee injury and subsequently underwent a total left knee replacement surgery. Her treating orthopaedic surgeon opined that the fall may have aggravated underlying arthritis. Following her injury, she had difficulty kneeling, squatting, completing household and domestic chores and a number of recreational activities. She was awarded $110,000 for pain and suffering.

When am I entitled to pain and suffering damages?

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.

Under the WorkCover and TAC schemes, you are entitled to pain and suffering damages if you have sustained a serious injury (significant injury for public liability claims) and negligence can be attributed to another party.