What types of compensation may be available?

This can be a complicated question.

The answer will depend on your age, occupation, the severity of your injuries, the treatment required and any care requirements you might have. Just like every person is different, every case is different.

The primary aim of any compensation claim is to try and put you back into the position you were in before the injury happened. In addition to this you can also claim for non-financial losses for example pain and suffering which provides recognition of the difficult circumstances the injury may have caused you.

In general terms, compensation for personal injury claims is calculated under a number of “heads of damage”– which we discuss below.

These include:

• General damages – for pain and suffering;
• Special damages;
• Past and future loss of wages;
• Loss of superannuation;
• Gratuitous care;
• Legal costs.

It’s important to know that not all heads of damage are available at the time of a claim and the heads of damage can be calculated differently depending on the type of claim you have (for example, workers compensation vs public liability). That’s why it’s important to obtain advice about your individual claim so you know what you’re entitled to.

In addition to claiming damages, you might also be able to make a claim through your superannuation fund for total and permanent disability (TPD). To find out more about TPD claims click here.

General damages are paid to compensate you for pain and suffering and loss of quality of life.

Under the Civil Liability Act 2003 (Qld) and the Workers Compensation and Rehabilitation Act 2003 (Qld) general damages are calculated according to a scale. For example, if you have suffered a minor fracture to your hand which has healed relatively well, it would probably be categorised as a ‘moderate hand injury’ which attracts a scale value of 6 to 15. The scale is then converted into a monetary value which, as at 1 July 2023, is $10,375 to $30,270 for a WorkCover claim and $10,980 to $31,500 for a motor vehicle accident claim and public liability claim.

There can be circumstances where the scales do not apply, in which case the Court assesses the amount of general damages you are entitled to. This can result in a higher general damages award and requires a close analysis of cases involving people with similar injuries.

Special damages are awarded for out of pocket expenses paid by you, including medical and travel expenses, paid assistance, hospital treatment, medications, aids and other similar items. This applies to expenses paid for in the past and will also cover your anticipated out of pocket future expenses.

Economic loss relates to loss of income and loss of earning capacity. If you have been unable to work or have lost income as a result of your injury, you are entitled to be compensated for that even if you have received paid sick leave entitlements while you have been away from work.

Past economic loss is calculated from the date of injury until the date of your settlement or judgement by a Court. If you were employed at the time of your injury, past economic loss is calculated by adding up weekly earnings you have lost. If you were not employed at the time, the Court will consider whether the injury impacted your ability to return or enter the workforce or otherwise impacted plans you had to earn an income (for example, if you were intending to start a role at a new employer or start your own business).

Economic loss is capped at three times the average weekly earnings at the date of settlement or judgement. You can also recover interest on past economic loss, as well as loss of superannuation entitlements.

Future economic loss is awarded for your anticipated loss of earning capacity in the future. This requires the Court to consider how your injuries are likely to impact your ability to earn income and whether your career trajectory has been changed. If it is not possible to precisely calculate future economic loss, a ‘global award’ can be made.

Loss of superannuation is calculated based on your likely loss of superannuation in the past and into the future. Sometimes this is a simple calculation of applying 10% or 12% (whatever the applicable rate is) to your actual lost earnings. However, it can also get much more complex, especially where you have a defined benefits scheme, there are industrial awards that mandate certain levels and increases to your superannuation or you are entitled to different rates of superannuation.

Gratuitous care damages are awarded to compensate you for care provided to you by your family and friends as a result of your injury. You do not need to have paid them for the care they provide to you in order to claim gratuitous care.

Gratuitous care generally cannot be recovered from your employer. In other claims, you generally have to meet a threshold of six hours care per week for at least six months before you will be entitled to claim.

In many cases (but not all) a portion of your legal costs and disbursements can be recovered from the defendant. This depends on the type of claim and the amount of damages you recover.

Settling personal injury claims is a complex negotiation process which depends on a number of factors. If your case is successful and is one where costs recovery is available to you, generally speaking, you can expect to recover between 50% and 75% of your costs, plus disbursements, from the defendant.

In very limited circumstances you may be able to recover all of your costs and in other instances you may agree to settle with only a limited or no contribution to your costs in order to achieve resolution of your case.

We will provide advice to you about this during our initial consultation with you, in our costs agreement or during the management of your claim.

This information relates to personal injury claims in Queensland. It should only be used as a guide and is not as a substitute for legal advice. If you have been injured, contact us to see if you have a claim and for legal advice about your individual circumstances.