There are certain “heads of damages”, (or categories of compensation) which you may be entitled to claim if you can prove that you have suffered injury or loss as the result of negligence in the conduct and delivery of medical treatment and services.
The different heads of damages can be briefly summarised as follows:
Non-economic loss: This is also known as “general damages” and is compensation for pain and suffering, loss of enjoyment of life, loss of amenities of life and where appropriate scarring and disfigurement. It encompasses both physical and psychological injury and disabilities. Thresholds and maximum compensation amounts apply under the Civil Liability Act 2002 (NSW).
Economic loss: If you have suffered a loss of income as a direct result of your injury arising out of negligent medical treatment, you may be entitled to damages for loss of income and lost superannuation to the date of settlement/hearing. You may also be able to make a claim for future loss of earnings or impairment of earning capacity, for example, if your ongoing disabilities will prevent you from working in the future, impede future promotions or force you into early retirement.
Past out-of-pocket expenses: Any expenses you have incurred as a result of your injury arising out of negligent treatment can be claimed. This may include medical, hospital, pharmaceutical and travel expenses. It is important to understand that it may be necessary to reimburse to Medicare, your private health insurers or NDIS if you have received benefits in the form of treatment or services relating to the injury.
Future out-of-pocket expenses: If you have an ongoing need for medical treatment or other recurring expenses resulting from your disabilities, the cost can be claimed into the future.
Past care: If you have required paid care since the date of the injury, this can be claimed and reimbursed. If you have required and received unpaid care and assistance from family or friends (with personal care or chores around the home, for example) as a direct result of your injury, you may be able to make a medical negligence claim for the commercial cost for the gratuitous care given (subject to certain thresholds).
Future care: If you have an ongoing need for care resulting from your disabilities caused by the negligent act, you can make a claim for care into the future.
Special damages: You may be able to make a claim for additional heads of damage including equipment (including one-off and recurring expenses), home modifications, vehicle modifications, respite care and the increased expense of travel/holidays.
Whilst not specifically a head of damages, if you are successful with your medical negligence claim either at hearing or if resolved before hearing, you are entitled to recover from the Defendant a considerable contribution towards your total solicitor/client bill. This is known as party/party costs. If your claim resolves prior to hearing, party/party costs will usually be negotiated as part of the overall settlement.
