Car accident compensation for pain and suffering is a type of compensation for non-pecuniary loss. Non-pecuniary loss is often referred to as general damages. In this article, we have provided more detail about non-pecuniary loss.
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Non-pecuniary loss/damage in a car accident injury claim
Non-pecuniary losses are intangible losses that are not readily quantifiable by reference to a rate of pay or a cost that has actually been incurred. In a car accident personal injury case, if the injured person has a day off work due to their injury, the income loss is tangible, thus, this is not a non-pecuniary loss (i.e. it can be calculated by reference to the persons pay rate). However, if the person suffered from intangible loss due to the physical or physiological condition caused by the car accident, then a claim for damages would fall under the general damages or non-pecuniary loss head of damages.
In section 3C of the Motor Vehicle (Third Party Insurance) Act 1943, non-pecuniary losses are divided into the five categories
- Pain and suffering: e.g, your pain and suffering caused by the accident such as medical treatments or operations
- Loss of amenities of life: e.g, you lost the ability to lift shopping bags due to the car accident injuries
- Loss of enjoyment of life: e.g. you lost the ability to play with kids and participate in sport
- Curtailment of expectation of life: e.g, as a result of the accident you are likely to die 5 years earlier and
- Bodily or mental harm: e.g, depression, limited use of your neck, limited use of your back
Please note, when an injured person asked about “car accident compensation for pain and suffering”, they often refer to the compensation for the intangible loss in the above heads of damage (ie. non-pecuniary loss).
How are pain and suffering calculated in an accident?
In a motor vehicle claim, pain and suffering and non-pecuniary loss are generally calculated based on a percentage of the ‘worst case’ as set out in the General Damages Threshold Schedule Table. If the injury is assessed as 100% (very severe cases such as quadriplegia, severe brain injuries or brain damage), then the highest amount would be payable. The highest amount for non-pecuniary loss is currently $438,000.
The injury percentage is often referred to as the “pain and suffering multiplier” and the maximum payable amount is often called the “pain and suffering threshold amount“. The main problem with the online “pain and suffering calculators” is that they do not accurately predict the pain and suffering payable. Pain and suffering calculations should be done by personal injury lawyers who are familiar with your compensation claim.
Pain and suffering in compensation law are calculated differently for different people. For example, take two car accidents where two people suffer minor physical injuries of the same kind. If the first person is an athlete, and the second person is an office worker then the effects on the athlete are likely to be greater than the effects on the office worker. The athlete may be unable to return to his vocation whereas the office worker may be able to return to work with intermittent pain. This underscores why it is important to seek legal advice about pain and suffering in motor vehicle accidents before making a decision to settle a case.
What can I expect from my pain and suffering settlements?
You can expect a pain and suffering settlement range from $0 – $438,000 depending on the severity of your injury and other factors. Personal injury lawyers should be able to assist you to calculate and negotiate a fair pain and suffering compensation.
As of 2022 to 2023 financial year, all claims for non-pecuniary loss have to exceed a minimum threshold of $23,500 and the maximum amount payable is $447,000. The threshold (deductible) amount gradually reduces for claims assessed between $68,000 and $91,500 and does not apply to assessments over $91,500. The Insurance Commission of Western Australia sets the Threshold Schedule annually. The Threshold Schedule is used to assess the amount payable.
As you can see, the range between minimum payout and maximum compensation is quite large. This is because there is a large range of factors that may determine where you sit in the range.
If you have suffered a personal injury in a car accident that happened recently, then your condition is unlikely to have stabilised, and you will be unable to tell the full extent of what the impact of the motor vehicle accident has been on you. You can use internet articles to find out the average pain and suffering settlements for whiplash, or other types of motor injuries, but the amount of pain and suffering from one case to another is vastly different. In most cases, you would be better off revisiting the question later in your car accident injury claim when your condition is stabilised, and you have a better understanding of the long-term impact on you.
Examples of pain and suffering settlements
In this part, we have provided examples of accident claims regarding compulsory third-party insurance for car accidents. Even though the area of car accident claims may seem like a narrow area, it is important to realise that car accident lawyers see the full spectrum of humanity. Just as every person is different, so is every claim.
Claim Compensation for Psychological injuries
A lady in her 40’s (who we will call Sam – name changed to preserve confidentiality) was involved in a car accident when her vehicle was parked and another car reversed into her car. She made a claim for personal injury benefits with the Insurance Commission of Western Australia.
Sam was helping her husband with his business at the time of the accident. The physical injuries that she suffered were minor, but the psychological injury that she suffered was major and she was repeatedly diagnosed as suffering from a recognised psychiatric illness. From a function perspective, Sam struggled to leave the house and her psychological injuries were severe.
In making lump-sum offers of settlement regarding Sam’s case the Insurance Commission had difficulty accepting that Sam’s condition had stabilised and sent her to several psychiatrists over several years but her situation did not change. Sam was on medication for her psychological injury and this medication caused non-minor physical injuries to her teeth and digestion. Foyle Legal used their knowledge in personal injury law to get Sam an amount for her pain and suffering in excess of $150,000.00.
Helping performers claim compensation
A lady in her 40’s (who we will call Jane – name changed to preserve confidentiality) was a United States performer in high-end theatre. She was in Western Australia at the time of her car accident but was considering returning to Los Angeles. Jane was involved in a motor vehicle accident and suffered moderate physical injuries. The work Jane did in the theatre was very physical and she could not return to it following the accident due to the injuries sustained, but Jane was able to do other less physical work. Foyle Legal helped Jane to gather evidence to show she would suffer considerable past and future losses and medical expenses following the accident and Jane received a substantial lump sum payment regarding the motor vehicle accident.
Settlement of your pain and suffering claim
If you have made a car accident personal injury claim, you need to be aware that settlement of your personal injury claim is a negotiation process. There are threshold amounts, limits and guidelines for the process. The actual settlement is negotiated outcome based on the case you present. Being able to build a strong case that supports your compensation expectation is vital in getting fair compensation for your personal injury claim.
In the case of a car accident injury compensation claim, managing a pain and suffering claim without a lawyer is possible but a good lawyer often has the ability to get you more compensation than you could.
No Win No Fee Lawyers
No Win No Fee lawyers do not charge legal fees unless they successfully settle the client for their client. As one of the top No-Win-No-Fee compensation lawyers in Western Australia, Foyle Legal provides an obligation-free consultation. If you have made a car accident personal injury claim, consulting a lawyer on an obligation-free basis may assist you in understanding how to progress your claim best.
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