A Misconception About Compensation

People injured in motor vehicle accidents do not just receive an amount of money based purely on their injuries, writes Personal Injury lawyer Barney Gask.

IMPORTANT: Major changes to South Australia’s motor accident compensation scheme start from 1 July, 2013. For people injured in accidents from 1 July onwards, entitlements change significantly. Click here to find out how.

Whilst the nature and severity of the injuries are clearly a significant factor, there are other factors that when considered can result in an injured person being awarded a vastly different amount of compensation to another who may have exactly the same injuries.

In South Australia those injured in motor vehicles are entitled to be compensated if the accident is not their fault and if their enjoyment of life has been significantly impaired for more than seven days. Compensation is divided into non-economic and economic loss. Included in the non-economic part of the claim is compensation for pain and suffering, or what is referred to as general damages. It is assessed on a point scale: zero points for no injury up to 60 points for the worst injury imaginable. Each point is then multiplied by a monetary figure depending on the year of injury.

There are a number of factors that are taken into account to determine where an injured person fits into the scale. Firstly, there is the severity of the injuries themselves. Obviously the worse the injury the greater the points. Other factors of relevance include whether the injured person has had surgery and the presence of any scarring. In relation to scarring, the sex of the injured person is relevant. A female is more likely to be embarrassed or self conscious about scarring than a male. The age is relevant. As harsh as it sounds, older people are awarded less, as they have less time to live with their disability.

In relation to economic loss, again, an injured person is not awarded a certain amount of money based on their injuries alone. Age is again a factor, as a younger person will have more of their working life remaining. Whether the injured person was working at the time of the accident is a factor. A loss of income can be clearer and easier to calculate in that instance, but if someone was not working at the time of the accident does that mean they have no entitlement to economic loss? What about the mother who was off work at the time of the accident but had intended to work at some stage in the future, once her children commenced school? What of the person who has never worked but at the time of the accident was actively searching for work? If injuries have resulted in an injured person losing the opportunity or chance to pursue a certain career, are they entitled to economic loss? Even if a person wasn’t working at the time of the accident, allowances can still be made for economic loss.

Certain injuries can also impact on the ability of injured people to perform their jobs in different ways. For example, a permanent leg injury sustained by a receptionist is unlikely to impact on them as much as it would to a truck driver. A serious wrist injury is unlikely to impact a lawyer as much as it is a physiotherapist.

The result of all this is that you can give exactly the same back injury, sustained in the same way to an Olympic swimmer, an accountant and a plumber all of the same sex and age, and they would all receive vastly different amounts of compensation.

For this reason any comparison by injured people of their situation to another when assessing compensation is fraught with danger.

TGB is South Australia’s largest injury law firm. If you have been injured in an accident, contact your nearest TGB office for a free initial interview.