The common law provides that if a person is injured as a result of another’s negligence then the injured person could traditionally sue for damages. Damages comprised compensation that was designed to put the injured person in the position they would have been in had they not been injured. Unfortunately we are unable to wave a magic wand and restore the injured person to health. Damages in the form of monetary compensation is all that is available.

The common law traditionally did not impose any limits on the level of compensation that could be recovered by an injured person. They were entitled to recover the compensation determined by the courts to be commensurate with the injuries which they have sustained. However successive governments over the years have intervened so as to “reform” the common law system. Such reformation inevitably involved a reduction in the benefits available to the injured person. Such reforms always worked in favour of the insurance companies.

Traditionally it was people injured in motor vehicle accidents or work accidents or alternatively injured in accidents on public or private property who would bring common law actions. Those claims have now been modified by virtue of legislation which includes the Motor Accidents Compensation Act 1999, the Workers Compensation Act 1987 and the Civil Liability Act 2002. Even these pieces of legislation have undergone review and reform and modification since their introduction.

Under the common law a person injured in compensable circumstances would ordinarily be entitled to recover damages for their pain and suffering, past and future medical treatment expenses, past and future wage loss or economic loss, the value of gratuitous domestic assistance that was or would be required, the value of any commercial care, the value of any medical or other aids as well as a significant contribution towards their legal costs. The legislative amendments over the years can be summarised as follows:

  1. Damages for pain and suffering are generally not available. What is now awarded is non-economic loss. Furthermore, in a motor accident claim non-economic loss can only be awarded for the injuries sustained if the injured person can establish that the injuries have resulted in a whole person impairment of greater than 10%. That is, only those persons who suffer serious if not horrendous injuries are ever likely to receive anything by way of damages for their pain and suffering.
  2. Generally speaking there are no damages available for pain and suffering suffered by an injured worker. This is contrary to what the position was whereby an injured worker would be entitled to recover non-economic loss compensation in addition to compensation for the degree of lump sum impairment resulting from the injury.
  3. In a civil liability action the injured person is entitled to recover non-economic loss damages for their pain and suffering if they can establish that the injury equates to “15% of an extreme case” whereby an extreme case would include things such as quadriplegia, paraplegia or a severe brain injury. If the injury is not assessed at being at least 15% of an extreme case then no damages for pain and suffering can be awarded.

The government has also intervened significantly in the level of damages that can be recovered by an injured person for wage loss or economic loss, the value of gratuitous or domestic assistance and medical treatment expenses. The reasons for same are difficult to discern but for the obvious advantage that the government gives to insurance companies by restricting the level of compensation available to innocently injured persons who otherwise would have had unrestricted common law rights entitling them to proper compensation for their injuries.

Brydens Lawyers are the experts in the prosecution of all personal injury claims. For expert advice and legal representation at an affordable price contact Brydens Lawyers without delay.

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