General Damages in Queensland Personal Injury Claims

General damages, also known as damages for pain and suffering, are an important component of personal injury compensation in Queensland. They aim to provide monetary compensation for the non-economic losses suffered by an injured person, such as physical pain, loss of amenities of life, and loss of enjoyment of life.

The assessment of general damages in Queensland is governed by the Civil Liability Act 2003 and associated regulations.

Use of Injury Scale Values (ISVs)

General damages are calculated by assigning an Injury Scale Value (ISV) to the injury. ISVs range from 0 to 100, with 0 representing an injury not severe enough to justify any award and 100 being the most severe injury possible.

The ISV system aims to promote consistency in assessments for similar injuries and similar assessments for different injuries with comparable impacts. Specific ISV ranges for various injuries are set out in Schedule 4 of the Civil Liability Regulation 2014.

ISV increase (uplift)?

As mentioned, when assessing general damages for multiple injuries, the court first identifies the dominant injury (the one with the highest ISV range) and determines where in that range the case falls. If the maximum ISV for the dominant injury does not adequately reflect the adverse impact of all the injuries, the court can assess an ISV higher than the maximum for the dominant injury. This is known as an ISV uplift. However, the ISV for multiple injuries should rarely be more than 25% higher than the maximum ISV for the dominant injury, unless the court provides detailed written reasons justifying a higher uplift. The court can consider the ISV ranges for other injuries when assessing an uplift. The overall ISV cannot exceed 100. This approach allows the court some flexibility to account for the combined effect of multiple injuries, while still maintaining consistency with the ISV ranges prescribed in the regulations.

Medical Evidence

Medical evidence plays a critical role in determining a person’s Injury Scale Value (ISV) for compensation claims. The court relies heavily on medical reports and assessments from doctors and specialists to evaluate the nature and severity of the injuries. These medical experts provide detailed information on the diagnosis, prognosis, level of impairment, and impact on the person’s life and functioning. Specifically, doctors may use standardised assessment tools like the AMA Guides to the Evaluation of Permanent Impairment to calculate whole person impairment percentages. For psychiatric injuries, the Psychiatric Impairment Rating Scale (PIRS) is often used.

The AMA Guides to the Evaluation of Permanent Impairment provide a standardised methodology for assessing and quantifying permanent impairment resulting from injuries or illnesses. They are widely used in workers’ compensation systems, disability evaluations, and personal injury cases to determine impairment ratings. When using the Guides, trained physicians perform a comprehensive medical evaluation of the patient, referring to the detailed criteria, tables, and examples provided for various body systems and conditions. The physician then calculates a whole person impairment percentage based on the Guides’ protocols. This percentage reflects the estimated impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work. While not measuring disability directly, the impairment ratings from the AMA Guides are often used as part of the process for determining disability status, compensation, or benefits in many jurisdictions.

So, the medical evidence should outline the clinical findings, how impairment is calculated, and justification for the assessment. Courts are required to give greater weight to medical assessments that use these recognised criteria and scales when determining the appropriate ISV range and value. The medical evidence helps translate the injuries into the ISV framework to ensure consistent and appropriate compensation.

Calculation of Monetary Amount

Once the final ISV is determined, it is converted to a monetary amount using a formula set out in the Civil Liability Act.

Examples and Implications

The ISV system has generally resulted in lower general damages awards compared to the previous common law approach.

For example in Ballesteros v Chidlow [2005] QSC 280, the plaintiff suffered multiple injuries including a whiplash injury to the cervical spine. The court assessed an ISV of 9, resulting in general damages of just $9,800. Under the previous common law system, such injuries would likely have attracted damages of at least $25,000.  This highlights how the ISV system can significantly reduce compensation for pain and suffering, particularly for less severe injuries. Critics argue this may undercompensate some plaintiffs.  However, proponents say the system provides greater consistency and predictability in awards. It also aims to keep general damages proportionate to other heads of damage like economic loss.  For injured persons in Queensland, the key implications are:

1. General damages are tightly regulated and constrained compared to the past. Very large awards for pain and suffering are rare.
2. The dominant injury is critical – having multiple moderate injuries may not significantly increase the award compared to one more serious injury.
3. Strong medical evidence is vital to justify placement in the upper range of the relevant ISV.
4. General damages often form only a small portion of the overall compensation, especially for employed plaintiffs who can claim substantial economic losses.
5. For unemployed or retired plaintiffs, general damages may form the largest component of their claim, making the ISV assessment particularly important.

While the ISV system provides structure and consistency, it has also made it more challenging for plaintiffs to obtain large general damages awards in Queensland. Injured persons and their lawyers must carefully build their case to maximise the ISV assessment within the constraints of the system. Understanding the nuances of the ISV ranges and assessment factors is crucial to achieving fair compensation for pain and suffering.