How are Pain and Suffering Damages Assessed in Personal Injury Claims?

If you’ve been injured because of someone else’s negligence in Victoria, you’re likely dealing with more than just medical bills. The physical pain, emotional distress, and impact on your daily life deserve compensation, too. This non-economic loss is referred to as pain and suffering compensation, and understanding how it’s assessed can make a significant difference to your claim.

In Victoria, calculating pain and suffering isn’t as simple as plugging numbers into a formula. The amount you receive depends on the severity of your injuries, how they affect your life, and whether you meet the state’s “significant injury” threshold under the Wrongs Act.

Key Insights

• Pain and suffering compensation covers physical pain, emotional distress, and loss of enjoyment of life, not just your medical bills or lost wages.
• Victoria requires you to meet a “significant injury” threshold: permanent impairment of more than 5% for physical injuries, 5% or more for spinal injuries, or 10% or more for psychiatric injuries.
• What is the average settlement for pain and suffering? In Victoria, amounts vary widely, from around $90,000 for moderate injuries to $375,000+ for severe, permanent injuries. The maximum cap is currently $741,000 for Wrongs Act claims.
• How pain and suffering compensation is assessed depends on injury severity, permanency, impact on your daily life, age, medical evidence, and credibility of your testimony.
• You have three years from the date of injury to make a claim under the Wrongs Act.

What Is Pain and Suffering Compensation?

Pain and suffering compensation is separate from your economic losses, like medical expenses and lost income. It’s designed to acknowledge the intangible ways your injury has affected your well-being.

This includes physical pain from your injuries, emotional distress like anxiety or depression, loss of enjoyment of life (hobbies or social activities you can no longer do), and psychological impacts such as PTSD or trauma. For many personal injury claimants, this component can be the most substantial part of their total compensation.

Unlike a medical bill with a clear dollar amount, how much you can sue for emotional distress in Australia requires careful assessment by medical experts and the court. The law recognises that severe injuries create suffering that extends far beyond the initial accident.

The Significant Injury Threshold in Victoria

We often get asked, “How much can I sue for emotional distress?” Here’s something crucial that catches many claimants off guard: Victoria requires you to prove you’ve sustained a “significant injury” before you can claim pain and suffering compensation under the Wrongs Act and personal injury claims.

A medical practitioner approved by the Victorian Government must assess your permanent impairment using the American Medical Association Guides. For physical injuries (except spinal), you need more than 5% permanent impairment. For spinal injuries, it’s 5% or more. For psychiatric injuries, the threshold is 10% or more.

Some injuries automatically qualify as “significant” without an assessment: loss of a breast, loss of a fetus, psychiatric injury from losing a child before, during, or after birth, asbestos-related conditions, or injuries from intentional acts meant to cause harm.

If your injuries don’t meet this threshold, you can still claim your economic losses (medical expenses, lost wages), but pain and suffering compensation won’t be available. This is one reason why choosing experienced personal injury lawyers Melbourne can make such a difference — they know how to present medical evidence to maximise your chances of meeting the threshold.

How Is Pain and Suffering Calculated in Victoria?

Unlike economic damages that have clear receipts and invoices, how pain and suffering is calculated requires the court to consider multiple factors about your unique situation.

Victorian courts don’t use the multiplier or per diem methods common in the United States. Instead, judges examine your specific circumstances and compare similar cases (though they’re not bound by these precedents). The assessment is more holistic and considers the totality of your suffering.

The calculation process typically involves:

• A detailed medical assessment of your permanent impairment
• Expert testimony about how the injury affects your daily function
• Your own testimony about pain levels and lifestyle changes
• Comparison with past Victorian cases involving similar injuries. 

Courts also consider your age and life expectancy, the permanency of your injuries, the need for ongoing treatment, and how the injury has affected your relationships and quality of life.

What Factors Affect Your Pain and Suffering Compensation?

Several key factors influence how much pain and suffering compensation you’ll receive:

Severity of Injuries

More serious injuries with significant permanent impairment generally result in higher compensation. For example, a traumatic brain injury will attract more compensation than a broken wrist that heals completely.

Duration and Permanency

Injuries requiring ongoing treatment or causing permanent disability increase your compensation. If you’ll need pain medication for life or can never return to your previous physical activities, this weighs heavily.

Impact on Daily Life

Can you still work? Play with your children? Enjoy your hobbies? The more your injury disrupts your normal life, the higher your compensation is likely to be. Courts recognise that being unable to do things you love is a real loss.

Age and Life Stage

Younger claimants who must live with permanent injuries for decades typically receive higher compensation than older claimants with the same injury. A 25-year-old who can never play sports again faces a longer period of loss than a 70-year-old.

Credibility and Medical Evidence

Strong, consistent medical evidence and credible testimony are of enormous importance. If medical experts and your treating doctors all support your claims about pain levels and functional limitations, your case is stronger.

Type of Claim

Different types of personal injury claims in Victoria have different thresholds and caps. TAC claims (transport accidents) have a maximum of $663,580, while Wrongs Act claims (public liability and medical negligence) are capped at $741,000.

When assessing how much you can sue for emotional distress in Australia, these factors are weighed together. No single element determines your payout—it’s the combined impact of your injuries on every aspect of your life.

What Is the Average Settlement for Pain and Suffering in Victoria?

This is one of the most common questions we hear, and the honest answer is: it varies enormously based on your specific injuries and circumstances.

Based on Victorian case law and recent settlements, here are some general ranges: 

• Minor injuries that meet the threshold might attract $50,000 to $100,000
• Moderate injuries with permanent effects typically range from $100,000 to $300,000 
• Severe, life-altering injuries can reach $375,000 to the maximum cap

According to the TAC, the average motor accident injury payout in Victoria is around $35,000, but this includes all claims — many don’t meet the serious injury threshold for pain and suffering. For serious injury claims involving traumatic brain or spinal injuries, the average jumps to approximately $2.25 million.

Maximum Compensation Limits in Victoria

Victoria caps pain and suffering compensation to ensure consistency across claims. As of July 2023, the maximum amounts are:

• Wrongs Act claims (public liability and medical negligence): $741,000
• TAC claims (transport accidents): $663,580
• WorkCover claims: $741,000

These figures are indexed annually, so they slightly increase each year to account for inflation. If a jury awards more than the statutory maximum, the court will reduce it to the cap.

This means that even if your suffering warrants $1 million in a jury’s eyes, you’ll only receive the statutory maximum. It’s one of the limitations of Victoria’s compensation system, though these caps are among the highest in Australia.

Take the Right Steps to Protect Your Claim

Understanding how pain and suffering compensation is assessed in Victoria helps you make informed decisions about your claim. Remember that a significant injury threshold exists, so obtaining a proper medical assessment as soon as possible is critical. Don’t accept early settlement offers before your injuries have stabilised and you understand the long-term impact on your life.

The three-year time limit under the Wrongs Act means you need to act, but don’t rush into settling too quickly either. Victoria’s compensation system can provide substantial financial support for the genuine suffering you’ve endured, but only if your claim is properly prepared and presented.

Need help assessing whether your injuries meet Victoria’s significant injury threshold? Our team at Henry Carus + Associates has extensive experience with Victorian personal injury claims and can provide an honest assessment of your case’s potential. 

Call us on 03 9001 1318 for a free, no-obligation consultation. We work on a no-win, no-fee basis, so you won’t pay any legal costs in personal injury claims unless we win your case.