Motor Accident Claim: Pain and Suffering, Future Loss of Income Compensation

The current laws relating to road accidents that occur on or after 1 July 2013 are more complex than they have ever been. Now more than ever it is vital to seek legal advice, if you have been injured in a road accident, to ensure that you receive fair and reasonable compensation.  The complexities involved in determining, for example, if you have any entitlement to a payment for pain and suffering or for future loss of income are such that you should seek early legal advice.

Pain and Suffering

Under the new scheme you will only be entitled to a payment for pain and suffering if your dominant injury is assessed as being severe enough to exceed 10 points on a new scale.  The scale now being utilised is called the Injury Scale Value (ISV).  11 points equates to a payment of about $3,000.00 for pain and suffering.  As the percentage of impairment increases, so too does the amount payable.

Here are a few examples of injuries that exceed 10 points on the ISV scale:

1. An ankle injury, involving a fracture, that results in difficulty in walking on uneven ground, or difficulties with stairs, difficulty walking extended distances and residual scarring;

2. A knee injury, that has involved surgery but still causes ongoing pain and discomfort and likely to lead to future degenerative changes;

3. A hand injury involving serious tendon or nerve damage;

4. An elbow injury requiring surgery, including an open reduction and internal fixation;

5. Back injury with obvious disc herniation and symptoms of loss of muscle strength, sensory loss and impaired reflexes.

Future Loss of Income

You will only be entitled to a payment for future loss of earning capacity (i.e. future loss of income) if your dominant injury is assessed as exceeding seven points on the scale.  If your injury is assessed as less serious then you have no entitlement to claim future lost income, even if you are unable to return to your normal employment due to your injuries.

Even if your injury exceeds seven points, you will only be entitled to 80 percent of lost future income.

Your entitlement to a payment for future lost income is not determined by whether or not you are able to return back to the actual work you were performing at the time of the accident or the type of work you have performed in the past.  Rather whether or not any payment under this area is payable is determined by whether or not your dominant injury is assessed as exceeding the seven point threshold.

Some examples of injuries exceeding seven points on the ISV include the following:

1. Frozen shoulder persisting for more than two years;

2. Neck, thoracic or lumbar spine injury, where there is radiological evidence of a disc herniation and symptoms including impaired reflexes, loss of muscle strength and sensory loss;

3. Hernia that has been repaired with surgery, but still retains a risk of reoccurring in the short term;

4. Multiple rib fractures that cause cardio-pulmonary contusion;

5. Facial scarring, which leaves minor cosmetic damage, despite surgery.

If you are unlucky enough to be injured in a motor vehicle accident after 1 July 2013, the laws covering you are now highly complex.  It is only those who have suffered severe injuries that will most likely have an entitlement to compensation. I have set out above some examples but this is by no means comprehensive of the type of injuries which will exceed the thresholds for two of the relevant payments.  Despite these thresholds, if you have been injured in a road accident due to the fault of another driver, you are still entitled to be covered for medical costs and 80 percent of past loss of income.  There are no thresholds for these losses.  To be sure of your entitlements, now more than ever, it is vital to obtain legal advice in regards to your individual circumstances.

TGB is South Australia’s largest injury law firm. For a free initial interview call Tim on (08) 8212 1077 or register online here.

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