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An individual may be able to claim compensation for personal injuries that they have suffered. This article outlines the definition of personal injury at common law and under the Civil Liability Act. It also discusses how damages for personal injury can be claimed (are assessed) under the Civil Liability Act.
A. Definition of Personal Injury
The common law definition of personal injury includes physical injuries and recognised psychiatric illnesses. In comparison, the Civil Liability Act 2002 (NSW) (‘CLA’) defines personal injury to include pre-natal injury; impairment of an individual’s physical or mental condition; and/or disease.1
The most notable difference between the definition of personal injury at common law and under the CLA is the damages claimable for mental harm. At common law, damages can only be awarded for recognised psychiatric illnesses. This means that ‘mere injured feelings’ such as feelings of anxiety, distress and anger will not be compensated. However, the definition under the CLA is broader as ‘impairment of mental condition’ includes these feelings. Accordingly, ‘injured feelings’ is claimable under the CLA.
Generally, most claims are governed by Part 2 of the CLA.
B. Assessment of Damages Under the CLA
Provided that the defendant’s actions or conduct caused the injury, there are three heads of loss under which a plaintiff can claim damages for personal injury. These include:
- Economic loss;
- Loss of earning capacity; and
- Non-economic loss.
B.1. ECONOMIC LOSS
Economic (or actual financial loss) refers to the finances expended in meeting the needs of the plaintiff as a result of his or her injuries. Examples of economic loss that can be claimed include hospital bills and medical services, rehabilitation services such as physiotherapy and the costs for professional nursing care.2
Damages for economic loss can include both:3
- Past financial loss (that is, loss incurred up to the date of the trial); and
- Future financial loss (that is, loss that will be incurred after the trial has been complete, such as continuing rehabilitation or nursing care).
There are no limits as to the amount that can be claimed for economic loss. However, the amount being awarded must be reasonable in meeting the needs of the plaintiff.
Moreover, as part of economic loss, an individual may also be able to claim gratuitous attendant care services.4 Gratuitous attendant care services are provided by an individual to the claimant for free (eg being cared for at home by a family member). These attendant care services can be any of the following:5
- Services that are of a domestic nature;
- Services that relate to nursing; and/or
- Services that aim to lessen the impact of an injury.
B.2. LOSS OF EARNING CAPACITY
An individual is able claim damages for their loss of earnings or ability to earn. This includes:6
- Past loss of earning capacity (that is, loss of earnings up to the date of the trial);
- Future loss of earning capacity (that is, loss of earnings after the trial has concluded); or
- Loss of the expectation of financial support.
Damages for past loss of earning capacity generally includes claiming the loss that has been suffered. This typically involves a sum of the actual or average earnings that the claimant would have received had they not been injured.
In awarding damages for future loss of earning capacity, the court will consider and compare:
- What the claimant would have earned before the injury; and
- What the claimant is now likely to earn because of the injury.
B.3. NON-ECONOMIC LOSS
Non-economic loss (or non-pecuniary loss) can be claimed for an individual’s:7
- Pain and suffering;
- Loss of amenities of life;
- Loss of expectation of life; and/or
The aim of awarding non-economic loss is to compensate (or provide relief) for aspects of the claimant’s life that cannot be measured (eg not being able to play sport anymore). This includes ‘injured feelings’ such as disappointment, grief, anxiety and distress. In Insight Vacations v Young, it was agreed by the majority that these injured feelings were factors amounting to or contributing to an individual’s pain and suffering and/or loss of amenities of life.8
To be able to claim damages for non-economic loss under the CLA, the severity of the claimant’s non-economic loss must be at least 15% of a most extreme case.9 If the severity is more than 33% of a most extreme case, then the maximum amount will be payable.10 As of 1 October 2019, the maximum amount payable for non-economic loss is $658,000.00.11
The Respondent (Ms Young) in Insight Vacations sustained injuries amounting to 18% of a most extreme case. Ms Young suffered personal injuries after the coach driver of the tour bus negligently slammed the brakes, which caused her to be knocked backwards and hit her head. She was successful in being awarded damages for non-economic loss, which included the distress that she experienced because of the injuries as well as her disappointment in not being able to enjoy the remainder of her holiday.12
There are slight differences between the meaning of ‘personal injury’ at common law and under the CLA. An individual may be able to claim damages for economic loss, loss of earning capacity and non-economic loss under the CLA.
Comasters Law Firm is able assist clients with both claiming damages and countering a claim of damages for personal injury.
1 Civil Liability Act 2002 (NSW) s 11 (‘CLA’).
2 CSR Limited v Eddy (2005) 226 CLR 1.
4 CLA s 15.
6 Ibid s 12(1).
7 Ibid s 3.
8 Insight Vacations v Young (2010) 78 NSWLR 641.
9 Ibid s 16(1).
10 Ibid s 16.
11 Civil Liability (Non-Economic Loss) Order 2010 (NSW) cl 3.
12 Insight Vacations v Young (2010) 78 NSWLR 641.
© Comasters May 2020.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.