If you have suffered an injury, and your injury was caused by the negligence of somebody else, you may decide to make a claim for civil damages. If you’re making a claim for civil damages, you need to know what you can actually claim in order to properly prepare your case. What follows is a bite-size outline that won’t take you hours to read and won’t (if we can help it!) befuddle you with legal language.
What are Damages?
Damages are the sums of money that are assessed as being payable to you, the Plaintiff, by the person, or persons, who caused your injury (the Defendant or Defendants). Damages are intended to compensate you for the losses you have suffered.
The different categories of damages are called the “Heads of Damage”. These categories are:
- General damages
General damages are also referred to as non-economic loss. These damages are intended to compensate you for the pain, suffering, disability, loss of enjoyment of life and/or disfigurement that the injury has caused you.
Most types of claims for personal injury have a percentage impairment threshold to be able to claim general damages, and also a maximum amount of damages that can be awarded.
- Out-of-pocket expenses
As the name suggests, these expenses are what you have paid, and will pay in the future, out of your own pocket, because of your injury.
This includes medical and treatment expenses, aids (for example, a wheelchair, special footwear, crutches) or appliances (for example, an orthopaedic bed, an electric scooter). This also includes domestic and personal care (for example, an at-home nurse, a cleaner, or a gardener).
Attendant care (also referred to as domestic assistance) is also covered under this head of damage. This could be care provided by friends and family for free (for example, cooking meals, driving you to appointments, cleaning your home) or paid commercial care (for example, having a cleaner to perform harder household tasks like vacuuming or mopping, or a gardener to mow your lawns).
- Economic loss
This means loss of income, both past and future (meaning your ability to earn the income you expected to earn in the future if you hadn’t been injured), including superannuation.
When assessing your past economic loss, your lawyer will look at what you would have earned if you had not been injured and take away from that any income benefit payments that you have received during that time (for example, Centrelink benefits, income protection benefits, or workers compensation benefits).
When assessing your future economic loss, your lawyer will use the personal injury discount tables. These are tables that reduce your future loss in wages down to today’s value. Using the table accounts for the fact that, if you were not injured, you wouldn’t have been paid all of your future wages in one lump sum – you would have earned it over a number of years until you retired.
What can affect the amount of Damages I can Claim?
Different issues can increase or reduce the amount of damages that you could ultimately be awarded. When your lawyer is doing an assessment of damages for your claim, he or she will be considering the following issues:
- Generally, you, as the injured person, have an obligation to “mitigate your circumstances”. This means that you need to show that you have taken reasonable steps to try to improve your situation, whether by having appropriate treatment for your injury, undergoing rehabilitation, or trying to find different work that is suited to your injury related disabilities. If the Defendant says you have failed to mitigate, it is on the Defendant to prove your failure to the court. If the Defendant is successful, the amount of damages you are awarded will be reduced.
- If the symptoms that you suffer after your injury could have been caused by a condition or injury that you already had. For example, if you are making a claim for an injury to your lower back, and your medical history shows that you have previously hurt, and had treatment to, your lower back. The Defendant may argue that even if your injury had not occurred, because of your pre-existing lumbar condition you could still have been in the same situation.
- It is very common for the Defendant to argue contributory negligence, which is where the Defendant says that you didn’t take reasonable care for your own safety, and if you had done, you would not have been hurt, or, you would not have been hurt as badly as you were. An example of contributory negligence is where you are found to have been under the influence of drugs or alcohol at the time of your injury.
- If you are claiming loss of opportunity, for example, that you would have had a certain kind of career that you now can’t because of your injury, you will need to be able to prove that you more likely than not would have actually had that career.
For example, say you were working as an Uber driver when you were injured, but you had always wanted to be a physiotherapist. Your injury has left you unable to do the job of a physiotherapist. Simply saying that you wanted to be a physiotherapist is not likely to satisfy the court that you would have been able to have that career. You might need to provide evidence that you had the required marks to get into a degree to study physiotherapy, or that you had enrolled in university before your injury.
- When assessing any damages for personal injury, a standard 15% discount is applied to the amount that is assessed for future economic loss. This is called “vicissitudes”. It is a discount that is applied on the basis that life is not always certain, and unpredictable things can affect your future income. For example, you might get sick, have a different injury or accident, you may lose your job, or you may for any number of reasons decide not to work to the age of 67.
Making a claim for civil damages isn’t an easy thing to go through. As you can see here, there’s a lot to consider. On top of the pain and frustration you’re going through, working out what you can claim, and making sure you maximize your claim, can be difficult and worrying. Talk to us with our Worker Compensation Lawyers about how we can help you.