The Assessment of Personal Injury Damages – Part I – Non-Pecuniary Loss and Playing the Piano

A question our personal injury lawyers in Perth are often asked by clients and prospective clients is how damages are assessed in personal injuries claims.

What is the loss of a hand worth for a pianist?

Categories of Damages

There are 2 main categories of damages in personal injuries claims.  These can broadly be called “pain and suffering” damages and “pecuniary” damages.

“Pain and suffering” damages are damages that are awarded by the Court as a recognition that injuries sustained have caused an individual pain and suffering, loss of enjoyment of life and may leave them permanently injured.  These damages are often called “non-pecuniary loss” damages or “general damages”.

“Pecuniary” damages include damages for lost wages, medical treatment expenses and all sorts of other out-of-pocket expenses that can be said to have been incurred as a result of the injuries sustained.  These damages will be discussed in a later article.

In relation to non-pecuniary loss damages, if one individual who, for example, derives enjoyment from playing the piano, loses their hand as a result of injuries sustained in a motor vehicle accident and another individual loses their hand in similar circumstances who does not play the piano, do the individuals receive the same amount for non-pecuniary loss?

Determination of Value of Damages

It can be very difficult to determine the value of damages to which an injured person is entitled for “non-pecuniary loss”.  This is because it is necessary to place a monetary value upon intangibles such as “pain and suffering” and “loss of enjoyment of life”.

Statutory Restrictions

In Western Australia, as in the other States of Australia, legislative restrictions apply to the amount of damages for non-pecuniary loss.  Different restrictions apply depending upon the circumstances that resulted in the injury.  For example, in motor vehicle accident claims there is a legislative “maximum” amount a Court can award for non-pecuniary loss damages.

There is no maximum in personal injury claims arising from, for example, dangerous premises, or other sorts of personal injury claims but legislative restrictions do still apply to the assessment of damages in these claims for non-pecuniary loss.

When assessing damages for non-pecuniary loss it is necessary to compare the severity of the injuries suffered by an individual to those suffered by the group of individuals who can be considered to have suffered the most extreme injuries possible.  This is done on a percentage basis.

What is an Injury Worth?

How much is a broken leg worth?  What should be paid to our pianist who has lost a hand as a result of injuries sustained in a motor vehicle accident?  Does the amount vary depending upon the age of the injured person?  How can loss of enjoyment of life be valued?

Whilst the discussion above in relation to comparing the severity of injury on a percentage basis is that adopted by the Courts, quite surprisingly there is no table that exists in Western Australia that attempts to grade particular injuries by  their percentage severity compared with the group of cases comprising the most extreme injuries.  This is most surprising considering that in the workers’ compensation area there is a table of injuries (often called the “table or maims”, although officially called the “second schedule”) that is used to calculate the lump sum to which an individual is entitled when they sustain permanent injury to a body part during the course of their employment.

Judge Made Law

Despite the fact there is no table such as the second schedule to assist with the determination of the damages payable for non-pecuniary loss for those injured in motor vehicle accidents, there are many cases where judges have assessed the damages to which individuals are entitled for non-pecuniary loss.  These decisions provide a wealth of useful information to assist lawyers and insurers to determine the damages to which an injured person is entitled for non-pecuniary loss.

An interesting feature of the analysis of past judicial determinations of the damages to which individuals are entitled for non-pecuniary loss is that there is no absolute uniformity between judges as to the damages individuals should receive for particular types of injury.  For example, our analysis of the cases relating to the assessment of damages for non-pecuniary loss for people with soft tissue injuries to their necks indicates a very wide breadth of assessments of damages.  Based on reviewing the cases, there are certain cases where it would appear that individuals with injuries that are quite similar in severity, can in some cases be awarded 7.5% of a most extreme case and in others – up to 15% of a most extreme case.  This unfortunately appears to be the result of a system where there is no table such as the second schedule that provides a guide in relation to the damages to which an individual is entitled for non-pecuniary loss.  In the absence of such a table, regrettably the situation is that individuals injured in this State in motor vehicle accidents will have the damages to which they are entitled for non-pecuniary loss assessed, in the absence of agreement with the insurer prior to trial, by 1 of 20 judges.

Each of these judges bring different experiences to their assessment of damages and each of these judges may ascribe varying significance to the particular ways in which an injury affects an individual.

A Difficult Question

A question that arises in relation to the assessment of damages for non-pecuniary loss is how can an individual persuade an insurer or, if agreement cannot be reached with the insurer, a Judge, as to the amount they should receive for non-pecuniary loss?

The short answer to this question is that it is very difficult.  Experience suggests the best way this can be achieved is to ensure that the individual who is assessing the damages to which the injured person is entitled for non-pecuniary loss (whether that individual is an insurer representative or a Judge) understands the full nature and extent of the injury, the extent to which the injury has affected the injured person and the long term effects of the injury.

For example, it is necessary for the individual assessing the damages to which the injured person is entitled to be provided with an understanding of the particular activities the injured person enjoyed participating in prior to sustaining injury and the extent to which the enjoyment that can be derived from those activities has been reduced as result of the injuries sustained.  This is necessary because although the nature of the injury itself is an indication as to the severity of the injury, different individuals derive enjoyment from life in different ways.

Personal Circumstances Give Rise to Different Results

For this reason, the individual referred to above who may have lost a hand who enjoys playing the piano may receive more damages for non-pecuniary loss than the individual who sustained the same injury but who did not derive enjoyment from playing the piano.  Age is also relevant, as perhaps is competence as a pianist!  For these reasons it is essential in order to ensure an injured person receives the non-pecuniary loss damages to which they are entitled that medical evidence is available as to the nature of the injury and the long term impact of that injury, evidence as to the activities the individual enjoyed prior to sustaining injury, medical evidence confirming that the injuries preclude or restrict the individual from engaging in those activities now and evidence as to the range of activities that remain available to the injured person to assist them to continue to derive enjoyment from their life.

The assessment of damages for non-pecuniary loss is not for the faint hearted!  Legal advice should always be obtained.

Our team of personal injury lawyers in Perth are ready to assist with your personal injury claim, call today.

By |2018-12-14T11:07:38+00:00July 18th, 2014|Blog|0 Comments

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