At Risksmart, part of the service we provide involves assessing compensation for personal injury matters, especially for injuries suffered in public places controlled by shopping facilities. Each state and territory have different laws for calculating damages. To assist, this article unpacks how a claimant’s entitlement to compensation is assessed, depending on their location.
WHAT ARE GENERAL DAMAGES?
General damages are also known as non-economic losses or non-pecuniary losses. Essentially, this is compensation inclusive of pain and suffering that a claimant seeks from a wrongdoer for an injury sustained through the fault of the wrongdoer in a public space. A claimant can claim general damages for a range of injuries if certain thresholds are established (as discussed below). For example, a claimant may claim general damages following a slip and fall which caused them to sustain an injury (e.g., a broken arm) on an occupier’s premises. In this situation, the claimant could ask the occupant to pay compensation on the basis that they would not have broken their arm if it were not for the occupier’s negligence.
CALCULATING GENERAL DAMAGES
New South Wales (NSW)
The key legislation that is relevant in assessing general damages in NSW is the Civil Liability Act 2002 (NSW). Interestingly, the total general damages that can be awarded in NSW is currently $693,500. However, for a claimant to make any claim for general damages, they must prove they suffered at least a 15% degree of bodily impairment. Percentages are allocated based on the severity of the claimant’s injuries, as assessed by a medical practitioner.
The Civil Liability Act 2002 specifies the value that should be awarded for the specific percentage of impairment. The Court will consider previous cases when assessing how much compensation to award a claimant for injuries and the amount will vary on a case-to-case basis.
Victoria (VIC)
In Victoria, the assessment of general damages is explained in section 28LB of the Wrongs Act 1958 (VIC) (WA VIC). The courts assess general damages in accordance with previous decisions. It is also worth noting that general damages are only available for “significant injuries”. To establish whether the claimant’s injuries are significant, the claimant will often be examined by a medical practitioner, after which the claimant’s solicitor serves the defendant with a certificate of assessment for them to accept or reject.
If a defendant is not satisfied that a claimant’s injuries meet the threshold, per section 28LWE of WA VIC, a defendant can refer the claimant to be assessed by its own appointed medical panel before settlement negotiations.
Ultimately, if the medical panel determines that the claimant’s injuries are not significant, it will be more challenging for them to make a valid claim under general damages. This means the claimant may have to pursue other types of damages (if available).
Queensland (QLD)
In Queensland, the assessment of general damages is regulated by the Civil Liability Act 2003 (QLD). The amount of compensation that someone can claim is found in Schedule 7 of the Civil Liability Regulation 2014 (QLD). As per the regulations, the claimant’s injuries are assessed against an injury scale value (ISV) ranging from 0 to 100 (100 = severe injuries).
The key point of QLD’s law is that no allowance for general damages can be made if the injuries are below 5% on the ISV.
Western Australia (WA)
In Western Australia, general damages are assessed in accordance with the Civil Liability Act 2002 (WA) (CLA WA) and there is no cap on general damages. Nonetheless, Section 9(1) of the CLA WA states that the general damages allowance can only be awarded if it is assessed to be more than Amount A ($23,500) or Amount C ($68,000) which is discussed below in more detail.
For example, if general damages are assessed at or below the set Amount A ($23,500), then no award for general damages is made.
However, if the value of the general damages falls between $23,500 to $68,000, for example, $30,000, the amount the claimant will be awarded would be $6,500 ($30,000 less $23,500).
Where the damage exceeds $66,500 (e.g., $75,000), then the claimant would be awarded $58,000, calculated as follows:
1st step: obtain a deductible – $23,500 less ($75,000 -$68,000) = $16,500
2nd Step: amount awarded – $75,000 less $16,500 (deductible) = $58,000
If assessed general damages exceed $91,500 (Amount A + C), e.g., $100,000, then damages are not reduced and $100,000 would be the award.
South Australia (SA)
In South Australia, the assessment of general damages is explained in the Civil Liability Act 1936 (SA)(the Act). According to section 52(1) of the Act, the general damages award can only be made if one of the following conditions is satisfied:
- The injured person’s ability to lead a daily life was significantly impaired by the injury for at least 7 days; or
- Medical expenses incurred in relation to the injuries are at least the prescribed minimum ($2,750 as per the Consumer Price Index).
Section 52(2) provides that prior to awarding general damages, the claimant’s injuries are attributed a value from 0-60 that is assessed alongside schedule 1 of the Civil Liability Regulation Act 2013. After finalising the appropriate value, damages are calculated based on the sliding scale table in section 52(2)(c) of the Civil Liability Act (SA).
Northern Territory (NT)
In the Northern Territory, general damages are regulated by the Personal Injuries (Liabilities and Damages) Act 2003 (NT). The maximum amount available for general damages is $686,500 (as per section 27 of the Act).
The Northern Territory takes a whole person impairment approach when assessing general damages (tabled in section 27(3)(c)). The law prescribes that no award for general damages can be made if the bodily impairment is less than 5%. A medical assessment can be used to determine this. Importantly, if the bodily impairment is 85% or more, then the maximum amount is awarded.
Tasmania (TAS)
In Tasmania, section 27 of the Civil Liability Act 2002 (TAS) regulates the assessment of general damages. Tasmania has no cap on general damages; however, it does have a threshold requirement. For instance, if general damages are calculated at or less than $6,000 (Amount A), then no award will be available. If general damages are between $6,000 (Amount A) and $30,000 (5 times Amount A and referred to as Amount B), the following formula is used to calculate the award:
1.25 x (amount assessed – Amount A) = Total general damages
For example, if the amount assessed is $10,000:
1.25 x ($10,000 – $5,000) = $6,250 (total award)
If general damages are higher than Amount B (more than $30,000), then the assessed amount becomes the award for general damages. Parties may refer to precedents/case laws to determine the appropriate general damages award and bring it to the Court’s attention during proceedings.
Claims Executive – Risksmart