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Published: 12 September 2018
Author: Michael Burdess
As a general rule, the older you are, the less you’ll get. For example, in a common law claim, A 20-year-old with an amputated finger would receive a higher compensation payment for pain and suffering than a 60-year-old with the same injury.
Nothing in litigation is certain. Cases can take unexpected turns, for better or worse. Running a case before a Court can be a risky but potentially rewarding step in terms of how much compensation you receive.
Generally, the best chance at obtaining maximum compensation is before a judge or jury, rather than a settlement beforehand. However, running a case means the uncertainty of litigation is a significant factor to consider. The more risk you take, the greater the potential rewards, but also the potential risks of losing or having a poor outcome.
Whether it’s a claim via WorkCover, TAC, public liability, medical negligence or victim of crime, the type of claim you make has a huge impact on the potential value of the claim. For example, a victims of crime claim only allows for very small compensation payments, far less than you could obtain in a WorkCover or TAC matter. As a general rule, in public liability and medical negligence claims, proving negligence will be harder than in a TAC matter. This will often will result in greater reductions in amounts payable, to take into account the risk of potentially losing the claim.
How an injury affects the client in particular is very relevant in cases, because the same type of injury for two different people can have very different effects.
For example, let’s take two 45-year-olds injured people and compare them. They may have similar levels of pain and require the same medical treatment. However, one of them regularly did triathlons and had won several recent events, as well as bike riding 3-4 times a week and running twice a week. Due to the injuries, this person can no longer do triathlons or the regular bike riding and running. It’s likely that their pain and suffering payment would be larger than the other injured person who doesn’t have those effects.
We also need to address how likely it will be that the other party will be held to be at fault. Common law payments are based on the idea that the other party must be negligent and that their negligence caused or contributed to the injury. In some cases, this is obvious. For example, if a drunk driver swerves across the road and hits a car and injures innocent parties, the issue of who is at fault is not in question.
But what if the injury occurs in circumstances where there are witnesses that have a different recollection of how the injury occurred? It might be that if the other witnesses are believed over you, that you lose your case. This effects what your claim might be worth. You may be advised to take a lesser amount than the injuries themselves assess at due to the possibility of losing the claim.
This can have a huge impact on the value of a claim. For example, in a WorkCover claim, if an injured worker cannot show a 40% loss of earning capacity, they are generally not entitled to claim economic loss in their common law damages claim. Obviously, showing a 40% loss is a lot easier if your pre-injury yearly earnings were $100,000 (you must show you could not make $60,000 per year now) than if they were $10,000 (you must show you could not make $6,000 per year now).
As another example, in a TAC claim, someone that has a track record of earning $80,000 a year is going to have a much more significant economic loss claim than someone who was earning $30,000 a year, assuming that their incapacity from the injury was the same.
An injury might have stopped you working for a period of time, but it doesn’t necessarily mean that you won’t work again, even if it is in a different job from what you were used to doing. How much you will receive in compensation for future economic loss will depend very significantly on your post-injury capacity for work.
These are complicated legal principles that a Court will apply to any claim for future loss of earnings. This blog cannot explain these principles in detail, but here’s a brief example of how they affect what is payable. For example, a 55-year-old who intended to work until 65 has 10 (years of future work) x $50,000 (example salary) = $500,000. The Court will make various deductions from that figure, ultimately coming to a lower figure for future loss.
There are plenty of other factors that go into making a claim for compensation, but the most common are mentioned above. The best first step to determining if you have a worthy claim is to contact your local Stringer Clark lawyer.
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