General Damages in Victoria | Armstrong Legal

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This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

General Damages in Victoria


General damages are damages (monetary compensation) awarded for harm or injuries suffered by a plaintiff for which an exact dollar value cannot be calculated. Often, in legal actions taken for compensation for personal injuries, general damages are awarded for things such as loss of quality of life, pain and suffering and for loss of the ability to do certain activities that were previously enjoyed. This article deals with general damages in Victoria.

Legislation

In Victoria, the Wrongs Act 1958 governs damages awarded for personal injuries. This Act talks explicitly about damages for non-economic loss, another term used for general damages in Victoria. There is a statutory maximum for the amount of damages that can be awarded for this head of damages. Under section 28G, the current maximum is $577,050.

Assessing how much general damages  should be awarded

In the past, when awarding general damages, the rule was that judges were not allowed to draw analogies to other cases in making their assessment of damages. This was because the individual circumstances of each case were considered to be unique. This rule has been somewhat relaxed in the area of law pertaining to personal injuries compensation.

The Wrongs Act 1958 allows courts to consider what has been awarded as general damages or non-economic loss in other cases. However, although previous cases can be used for guidance, they do not hold precedential value.

Some factors which are relevant to the assessment of general damages or damages for non-economic loss in Victoria for cases relating to personal injuries are the following:

  • How old the plaintiff is;
  • Any injuries that existed prior to the relevant incident and the injuries existing after the incident;
  • The plaintiff’s credibility in giving evidence;
  • The difference between the condition the plaintiff was in prior to the incident and after the incident;
  • Evidence provided by medical practitioners about the severity of injuries sustained and required ongoing medical treatment for the injuries;

Recent trends in general damages in Victoria and case law

The general trend in Victoria is that the amount of general damages in personal injuries claims is increasing. In the 1990s and 2000s, the Victorian courts generally awarded quite conservative sums for personal injuries claims.

In King v Woolworths Ltd [1999] VCC 3 a back injury sustained at work attracted a sum of $55,000 in general damages. A few years later, in 2005, a back injury acquired at work attracted $80,000 in general damages in the case of Verdesotto v Astaas P/L [2005] VCC 527.

More recently, in 2011, in the case of Boehm v Strongback Pty Ltd [2011] VSC 463, a back injury attracted an award of $350,000 in general damages in Victoria. Similarly, in 2014, in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 7) [2014] VSC 542, a back injury led to $350,000 being awarded for general damages in Victoria.

General damages in Victoria for psychological injuries sustained in personal injury cases have also followed this pattern. In 2003, $55,000 was awarded for a psychiatric injury caused to a plaintiff by peers at his school in Lisa Eskinazi v State of Victoria [2003] VCC 38. However, in the later case of Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728, a labourer was awarded $380,000 for psychological injuries sustained through bullying, harassment and abuse at work. Further, in 2017, in the case of Wearne v Victoria [2017] VSC 25, $210,000 was awarded in general damages to a plaintiff from a psychiatric injury caused by events that took place in the course of her employment.

Traditionally New South Wales has been known as the jurisdiction that has been the most generous in awarding general damages in personal injuries claims. In New South Wales, recent cases include $220,000 being awarded in general damages for an injury sustained to a wrist in Stenning v Sanig [2015] NSWCA 214. General damages for a hand injury attracted a sum of $178,000 in general damages in Vo v Tran [2016] NSWSC 1043, and $220,000 was awarded in general damages for a knee injury in the case of Fogg v Kane Constructions (NSW) Pty Ltd [2015] NSWSC 648.

It seems that from the cases mentioned above that Victoria may be closing the gap on New South Wales for being the most generous jurisdiction for awarding general damages in personal injury claims.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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