Non-Economic Loss (Pain and Suffering)
Assessment of this figure takes in to account both past and future pain and suffering and includes consideration of the following factors:
- The severity of the initial injury
- Whether hospitalisation or surgery was necessary
- The extent of pain and discomfort in the days or months following the injury
- Emotional distress and psychological injury
- The extent of any residual ongoing disabilities and restrictions
- Impact on quality and enjoyment of life
- Impact on social and recreational activities and interaction with family and friends
- Whether career or work capacity is effected.
Past Economic & Superannuation Loss
If, as a result of your injuries or medical condition, you have been unable to work or have had to reduce your working hours, you will be entitled to recover your net loss of earnings. If you were not working as at the date of the accident, that does not necessarily mean that you are not entitled to damages for Past Economic Loss.
At Lindbloms Lawyers we have acted for many clients who have been injured whilst in between jobs, or doing full-time study and not working, or who have been pregnant or a stay-at-home mum or dad, but whose injuries prevented or delayed them from returning to the workforce. In such circumstances the right evidence as to the claimant’s work history, background and intentions should result in payment of compensation for Past Economic Loss.
Sometimes an injury or illness will result in the claimant missing out on a promotion. In those circumstances the loss of the extra income they would have earned is also compensable. Usually damages for Past Economic Loss are accompanied by payment of the compulsory superannuation benefits which the claimant would have received along with those earnings.
Future Economic & Superannuation Loss
If you can no longer perform all of the duties required for your occupation, or you have had to change jobs, or cannot work at all, then damages are payable for loss of earning capacity. Just because you have managed to return to work and maintain your employment, earning the same income, does not necessarily disentitle you to this category of compensation.
In today’s competitive labour market, consideration needs to be given to whether you would be disadvantaged in applying for employment if you were to lose your current job and/or whether your injuries would limit your employment options.
At Lindbloms Lawyers we understand that the consequences of being unable to work, or perform your job as well as you used to, can have devastating financial consequences, and worrying about the future can keep you awake at night. Our experienced personal injury lawyers will work with you to ensure that your economic loss claim is properly investigated and substantiated so as to achieve the best result possible.
Past and Future Medical Expenses
All personal injury claims involve recovery of the cost of past medical and related treatment. This includes the cost of doctors, hospitals, physiotherapy and chiropractic treatment. Sometimes an insurer will dispute the reasonableness of allied health services like long term physiotherapy, acupuncture and/or remedial massage. In those circumstances we assist our clients to obtain the medical evidence required to justify the need for ongoing treatment.
In addition to treatment costs, the costs of medication, travel to and from treatment and other items like bandages, braces, crutches, therapy equipment and the like are also recoverable. If you are seriously injured, the costs incurred by family visiting you in hospital are also generally recoverable, such as travel and parking costs and sometimes even the airfares and accommodation costs of relatives if they do not live nearby.
Once your claim is finalised, you are responsible for all ongoing medical expenses. These can be significant if required over a number of years or a lifetime. We will ensure that medical evidence as to your likely future medical needs, including the cost of any surgery you might need in future, is obtained and included in the assessment of your damages.
Past and Future Assistance with Personal Care, Household & Domestic Chores
The law recognises that persons who are injured often have to rely on relatives or friends to assist with personal care, household and domestic chores and sometimes, maintaining the family business. This can involve help with things like: dressing and undressing, showering, continence issues, mobility, dressing wounds, therapy as well as household cleaning, cooking, laundry, grocery shopping and/or gardening, cleaning the gutters and walking the dogs. Any task at all that you now need help to do is relevant.
Although the person providing such assistance has no entitlement to compensation for doing so, even if they have incurred expense or taken leave from work, the injured person is entitled to be compensated for having to rely on such assistance. If a cost has been incurred, such as for nursing, household cleaning or gardening services then the cost of such services are recoverable from the defendant.
In the vast majority of claims, past assistance has been provided gratuitously ie at no cost to the injured person. If no cost has been incurred then the amount payable is nevertheless calculated by reference to commercial rates. For example, if prior to the injury, you used to take care of all of the cooking and cleaning for the household but because of your injuries, you are no longer able to do so, we would estimate the average hours per week spent by whoever is doing the cooking and cleaning now and claim the commercial rate of providing same, from the date of the accident and ongoing.
As commercial rates are generally between $35.00 to $50.00 per hour, depending upon how long ago the accident was and what type of claim it is, the amount payable for Past and/or Future Assistance can be substantial. Although damages are assessed using commercial rates, once your claim is finalised it is entirely up to you whether you engage a commercial provider or continue to rely on friends and family members.
At Lindbloms Lawyers we ensure that your entitlement to this category of compensation is properly valued by taking detailed instructions from you, obtaining medical opinion as to your need for assistance and where appropriate, engaging an Occupational Therapist to do a formal assessment.
Equipment and Home Modifications
As discussed in the above section, we often engage an Occupational Therapist to assist us with assessing, and proving, the difficulties our clients experience on a day to day basis with personal care, household and domestic chores. Occupational Therapists are also able to provide recommendations regarding the purchase of aids and appliances to assist around the home and as to home modifications.
Interest is generally recoverable on damages for Past Economic and Superannuation Loss, Past Care and Assistance and Past Medical Expenses.
Loss of Consortium
Injuries effect not only the person who has been injured but also the people that live with them. It is common for injured persons to become frustrated, anxious or depressed about their injuries, the pain and not being able to do the things they used to. Often couples are less able to enjoy the social and recreational activities they used to engage in prior to the injury. Physical intimacy may be painful. The uninjured partner usually has to take on increased responsibility for household and domestic chores. All of these matters can put a strain on the relationship and are relevant to assessing damages for Loss of Consortium.
This category of compensation is added to the claim of the injured person but brought in the name of the spouse or domestic partner, (in the latter case the couple must have been cohabiting continuously for at least 3 years as at the date of injury, or alternatively, for a total of 3 years within the 4 years prior to the injury or have a child together)