When you make a public liability claim in NSW, the law doesn’t just ask “how badly were you hurt?”, but it also asks “what exactly are you claiming for?”
Those different parts of a claim are called “heads of damage”. Understanding them helps you work out what you can reasonably claim as well as what the law simply doesn’t allow.
What are “heads of damage”?
Personal injury damages are the amounts a court or insurer, in the case of a settlement, can award to compensate you for the harm you’ve suffered, including income loss, pain and suffering, medical expenses and care.
The Civil Liability Act groups these broadly into:
- Non-economic loss: pain, suffering, loss of enjoyment of life
- Pecuniary (financial) loss: Anything with a dollar figure attached, such as wages, medical treatment and care costs
What you can claim in a NSW personal injury matter
1. Medical, treatment and rehab costs
You can usually claim reasonably necessary:
- GP and specialist consultations
- Surgery, hospital and imaging fees
- Physiotherapy, psychology and other allied health
- Medication, aids and equipment
Claims can be for past expenses and likely future expenses, if supported by medical evidence.
2. Past and future economic loss
Past and future income loss covers the financial impact of the injury on your ability to work and generate an income, including:
- Past loss of earnings from the income you’ve already missed out on
- Future loss of earning capacity, where your ability to work or progress your career is reduced
- Loss of superannuation attached to those earnings
Courts look at your work history, qualifications, likely career path and medical evidence to assess this head of damage.
3. Non-economic loss (pain and suffering) – but only if you pass the threshold
Non-economic loss includes pain, suffering, loss of enjoyment of life and loss of life expectancy. In NSW, you cannot claim this in every case. Under section 16 of the Civil Liability Act, you only get damages for non-economic loss if the severity of your injuries is at least 15% of a “most extreme case”, and any award is a percentage of an indexed statutory maximum (currently in excess of $700,000).
That means many “moderate” injuries will not qualify for pain and suffering damages, even if they are painful and disruptive.
4. Care and assistance (domestic and personal care)
If you need help at home because of your injuries, you may be able to claim for:
- Paid care including commercial nursing, cleaning or support workers
- Gratuitous care such as unpaid care from family or friends
Section 15 of the Civil Liability Act allows damages for gratuitous attendant care (i.e. cooking, cleaning, personal care), but only if:
- There is a reasonable need for the care, and
- The need arises solely because of the injury, and
- Care is (or will be) provided at least 6 hours per week for at least 6 consecutive months
There is also a separate head of damage for loss of a person’s capacity to provide domestic services to their dependants (for example, where a parent can no longer care for young children)
What you can’t claim (or are restricted from claiming)
Depending on the type of compensation claim, NSW law either limits or excludes:
- Non-economic loss if you don’t meet the 15% threshold under the Civil Liability Act
- Gratuitous care if you don’t meet the 6-hours-per-week / 6-months threshold
- Punitive or exemplary damages you can’t claim to “punish” the defendant in a negligence-based personal injury claim.
- Interest on non-economic loss and certain care damages, which courts are specifically prevented from awarding
- Double recovery you can’t be compensated twice for the same loss (for example, where another scheme has already paid a particular benefit)
Getting clear about your entitlements
The heads of damage that apply – and how they’re calculated – will depend on:
- How and where you were injured
- Which legislation applies (Civil Liability Act, workers compensation, motor accidents and so on)
- The medical evidence and your work history
There are also strict time limits and scheme-specific rules that can affect what’s realistically recoverable.
To get a full understanding of your entitlements and ensure you get the best compensation you deserve, it is strongly advised to get in touch with a specialist personal injury lawyer, who can review your situation, identify which heads of damage are open to you, and give practical advice about your likely range of compensation.