In New South Wales (NSW), the assessment of pain and suffering—referred to legally as non-economic loss—is governed by the Civil Liability Act 2002 (NSW) (“CLA”).
This is compensation for the intangible effects of the injury, such as pain and suffering, loss of enjoyment of life and loss of amenity of life.
The regime applies to most personal injury claims that arise from negligence (excluding motor accidents and workers compensation, which are covered by separate schemes).
The amount that can be awarded by a Court for this type of compensation is restricted by legislation and the amount awarded to each individual is determined based on the severity of their non-economic loss as a proportion of a “most extreme case.
In NSW, the maximum that can be awarded for non-economic loss is currently of $761,500 which is for the most extreme case i.e., someone who has suffered the most severe of injuries and disabilities such as a quadriplegic.
Pursuant to section 16 of the CLA, damages cannot be awarded unless the severity of the loss is at least 15% of the most extreme case.
The Court considers a number of factors when determining an appropriate award for non-economic loss. These include the impact of the injuries and disabilities on your life, your ability to work, your age and the length of time that you will be required to live with the injuries and disabilities.
There is subjective element in the assessment of a person’s suffering in determining non-economic loss. As such, appellate Courts give weight to the assessment of the severity in the particular case by the trial judge.
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