
There are several circumstances where you may be able to claim pain and suffering damages following a personal injury. Fair compensation for pain and suffering is not guaranteed, so it is important to consult a knowledgeable injury lawyer straight away.
Henry Carus + Associates is a specialist personal injury law firm well-versed in the compensation schemes of Victoria. Our personal injury lawyers in Melbourne fight to maximise your benefits while you focus on your recovery.
Find out if you are entitled to pain and suffering and other damages. Call Henry Carus + Associates at 03 9001 1318 today for a FREE, no-obligation consultation.
What Is Pain and Suffering?
Pain and suffering is a form of common law damages designed to compensate injured individuals for the impact of an injury on their physical, mental, and emotional well-being. It provides monetary relief for issues such as physical pain and discomfort, emotional distress, the impact on day-to-day life and activities, and lost quality of life.
A pain and suffering payout is separate from any benefits and compensation you may be due for economic losses such as medical expenses, loss of earnings, etc. Rather, pain and suffering is considered a non-economic loss.
Can I Sue for Pain and Suffering?
Each of Victoria’s personal injury compensation schemes allows for the recovery of pain and suffering. Your eligibility for compensation depends on (a) the incident that led to your injury and (b) the rules of the applicable scheme.
Generally speaking, you can claim pain and suffering damages for personal injury if:
- You were seriously injured.
AND - Another party was at fault for the incident that caused the injury.
Below, we discuss the process of claiming pain and suffering for different types of personal injury matters in Victoria.
Transport Accidents
In Victoria, compensation claims for motor vehicle accidents are exclusively governed by the Transport Accident Commission (TAC). Common law compensation (which includes loss of earnings, loss of future earning capacity, and pain and suffering) is only available if someone’s negligence resulted in the accident. Furthermore, you are only eligible for common law damages if you sustain a serious injury.
‘Serious injury’ has a specific legal meaning found in the Transport Accident Act. An injury or combination of injuries may also be considered serious if the degree of permanent impairment is assessed at 30% or more.
- Governing legislation: Transport Accident Act 1986
- Requirements:
- The claimant suffered a ‘serious injury’ as defined by law.
AND - An individual, organisation, or other party caused the accident through negligence.
- The claimant suffered a ‘serious injury’ as defined by law.
- Maximum compensation for pain and suffering: $663,580 (as of 1 July 2024)
- Time limits:
- 1 year to lodge the initial TAC claim
- 6 years for common law claims
Read More: What Does TAC Consider a Serious Injury?
Work Injuries
WorkCover is the workers’ compensation scheme in Victoria. Injured workers may be entitled to common law damages (pain and suffering and loss of earning capacity) if they (a) suffer a serious injury during or as a result of their employment and (b) someone other than the worker (such as an employer or other party) is found to be at fault for the injury.
The definition of ‘serious injury’ can be found in the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA). An injury or injuries resulting in permanent impairment of 30% or more are also deemed to be serious. Common law applications must include medical reports documenting the nature and severity of the injury.
- Governing legislation: WIRCA 2013
- Requirements:
- The worker suffered a serious job-related injury.
AND - An employer or other party must have been at fault.
- The worker suffered a serious job-related injury.
- Maximum compensation for pain and suffering: $741,000 (for the years 2024–25)
- Time limits:
- 30 days to lodge a WorkCover claim
- Up to 6 years to apply for common law damages
Read More: Can I Sue for a Work-Related Injury?
Other Personal Injury Matters
Personal injury claims in Victoria that are not covered by the TAC or WorkCover are governed by the Wrongs Act 1958. This legislation encompasses injuries due to incidents involving medical negligence and public liability (amongst other claims).
Under the Wrongs Act, compensation for personal injury is only available if negligence can be established. This includes both economic damages and non-economic loss. In addition, pain and suffering and other non-economic damages may only be recovered if you have a ‘significant injury’.
The significant injury threshold for Wrongs Act claims is much different from the serious injury tests used by Victoria’s other compensation schemes. A physical injury is considered significant if it results in permanent impairment greater than 5%. Spinal injuries are deemed significant if the impairment is assessed at 5% or more. Finally, a psychiatric injury is significant if it leads to permanent impairment of at least 10%.
- Governing legislation: Wrongs Act 1958
- Requirements:
- The claimant has a significant injury.
AND - Proof of negligence required for all claims.
- The claimant has a significant injury.
- Maximum compensation for pain and suffering: $577,050 (cap includes total damages for non-economic loss)
- Time limits: 3 years from the date of the injury or when the injury was discovered
How Is Pain and Suffering Compensation Calculated in Victoria?
Every person handles pain differently, and no two injuries are exactly alike. As such, your entitlement to pain and suffering damages must be calculated based on the individual factors involved in your unique claim.
Factors that may be assessed to determine whether a claimant is entitled to compensation for pain and suffering include:
- Age and life expectancy
- Symptoms and limitations caused by the injury
- Impact on work and home life, including job duties, caring for oneself, domestic responsibilities, leisure activities, etc.
- Medical treatment needs to date, as well as in the future
- Post-injury complications
- Likelihood that the injury will progress
- Pre-existing injuries or conditions
Organisations that manage personal injury claims (such as the Transport Accident Commission, WorkSafe Victoria, and private insurers) are principally interested in protecting the bottom line, not providing injured people with the compensation they deserve. It is crucial to have a personal injury lawyer representing you so they can obtain a fair outcome for you.
Contact Henry Carus + Associates for FREE Today.
How Do I Prove Pain and Suffering Damages?
Proving that you are entitled to compensation for non-economic loss can be challenging. Unlike economic damages, pain and suffering don’t have a dollar amount that can be easily quantified through bills and receipts.
This does not mean that pain and suffering damages can’t be quantified. Experienced personal injury lawyers can collect evidence, speak with your doctors, and consult expert witnesses to help you lodge a claim for non-economic loss with the TAC, WorkCover, or an insurer.
Strong evidence for pain and suffering should establish key facts such as:
- The type and severity of pain you experience on a daily basis
- Other symptoms that cause you discomfort, inconvenience, sleep disturbances, etc.
- Any limitations you face in performing daily tasks
- Restrictions on your ability to work
- Loss of the ability to care for your family, spend time with them, etc.
- Sexual dysfunction, resulting in loss of intimacy with a spouse or partner
- Impact on social life and recreational activities
- Depression, anxiety, and other psychological issues
Insurers have different procedures for resolving personal injury claims. For example, the TAC has common law protocols, WorkSafe issues a statutory offer once it is determined that a claimant has a serious injury and a conference is held to discuss the application, and insurance companies tend to favour settlement negotiations.
Rarely, it may be necessary to go to court to obtain maximum compensation for your injuries. Qualified legal counsel is critical for navigating courtroom proceedings and obtaining a positive outcome.
Contact Our Personal Injury Lawyers in Melbourne Today
Our founder, Henry Carus, is an LIV Accredited Specialist in Personal Injury Law. He has held this status for nearly 30 years. Specialist accreditation by the Law Institute of Victoria recognises a lawyer’s commitment to his chosen area of legal practice, as well as his professional excellence.
Henry and the team of lawyers at our firm have unmatched experience in all aspects of personal injury law. We understand the complex legislation in Victoria and apply that advanced knowledge to the unique claims our clients bring us.
You are much more than an injury, and Henry Carus + Associates aggressively pursue the result you deserve for your particular situation. This may include compensation for pain and suffering and other losses.
Whether you were injured in a transport accident, at work, or due to the negligence of a medical provider or owner of a public space, you owe it to yourself to explore your legal rights and options. Call 03 9001 1318 for a FREE, no-obligation consultation with a Melbourne personal injury lawyer at Henry Carus + Associates.