When medical care falls short of the expected standards, it can lead to physical and psychological injuries and financial hardships. In such cases, you may be eligible for compensation (damages) for the harm caused.
The law aims to put you back in the position you would have been in ‘but for’ the negligence. An award of damages is designed to address the diverse range of losses experienced by the affected individuals. These damages fall into distinct categories or ‘heads of damages’ which are set out below.
General Damages/Non-Economic Loss: General damages are designed to compensate for the intangible aspects of harm such as pain and suffering, loss of enjoyment of life, disfigurement and loss of life expectancy. Unlike economic losses.
In NSW, damages for non-economic loss are determined according to a scale per s 16 of the Civil Liability Act (NSW). Damages are awarded with reference to a percentage, or proportion, of a hypothetical ‘most-extreme-case’ (MEC). The assessment considers the severity of the injury and its impact on an individual’s life. Evidence required to prove the severity of the impact includes medical records, expert evidence, and personal accounts detailing the injury’s effect on daily life and mental health.
Economic Loss: This category encompasses quantifiable financial losses, including loss of income in the past and future loss of earning capacity. To substantiate claims for economic loss, evidence such as tax returns, employment records, and expert evidence from vocational experts demonstrating the impact of the injury on earning potential is essential.
Care and Assistance: The head of damages addresses the cost of additional care or assistance required due to the injury, such as home nursing, therapy, or assistance with daily tasks (including voluntary unpaid assistance from family and friends). It is important to provide receipts or invoices for services received, along with statements from caregivers or medical professionals highlighting the necessity of the assistance.
For gratuitous (unpaid) care and assistance, the law requires that the need for such care must exceed six hours per week for at least six months, to be eligible for damages.
Out-of-Pocket Treatment Expenses: These damages encompass expenses incurred for medical treatments, rehabilitation, medications, or any other related costs. Additionally, if Medicare or your Private Health insurer have funded relevant treatment, they are entitled to recover the cost of that treatment and it will be incorporated as part of your claim. The evidence required for this includes receipts, invoices, and medical bills showing expenses related to the injury and its treatment.
Seek legal advice
In essence, establishing damages in a medical negligence claim involves gathering evidence to substantiate various types of losses incurred because of your injuries. It is essential to consult with legal experts who specialise in medical negligence claims to navigate this complex process and ensure you receive an appropriate amount of compensation for the harm suffered. To discuss your individual circumstances, phone us on (02) 4050 0330 or enquire online.
