A plaintiff in personal injury proceedings can claim several types of damages, including general damages, special damages and their costs. Should a matter proceed to judgment and a liability is established, the Court/a jury will consider and award damages. An understanding of the types of damages is critical to understanding the potential outcomes.   

Damages are monetary compensation for a plaintiff's claimed loss should liability be found against a defendant in civil proceedings. A total award for damages can be comprised of the different types of damages, depending on what is claimed.  

In Victoria, the Wrongs Act 1958 (Wrongs Act) governs damages awarded for personal injuries, under Part VB, although there are exceptions. Transport accidents and Workcover have their own legislation and statutory caps.  

In personal injury proceedings, the main types of damages are:  

1. general damages;  

2. special damages;  

3. aggravated and/or exemplary damages; and  

4. costs. 

General damages, otherwise referred to as damages for non-economic loss, aim to compensate for pain and suffering, including loss of quality of life and can include an aggravating component.   

General damages in negligence may be awarded where the plaintiff meets the "significant injury" threshold outlined in section 28 of the Wrongs Act. A "significant' injury" (sections 28LB, 28LF(a) Wrongs Act), requires a whole person impairment of:  

• 5% for spinal injuries;  

• greater than 5% for all other physical injuries; and  

• 10% for psychiatric injuries. 

In Victoria, intentional torts are exempt from the threshold requirements, where the claim relates to an intentional act that is done with intent to cause death, injury or that is sexual assault or other sexual misconduct, including child abuse claims. The loss of a foetus, loss of a breast or psychiatric injury due to loss of a child are automatically deemed 'significant'. 

Section 28G of the Wrongs Act sets a statutory limit for a court's provision of general damages which is adjusted every year. The cap does not apply to intentional torts.  

In determining an award for general damages, a court will consider the level of damages that has been awarded in other personal injury cases, albeit without precedential value. A court may also weigh up some of the following factors:  

• the plaintiff's age;  

• the severity of the injury; and 

• expert medical evidence on the injuries and their ongoing impact. 

Section 28LE Wrongs Act imposes certain thresholds on access to general damages, satisfied where the plaintiff is able to prove they have sustained a 'significant injury'. For injuries except for loss of a foetus, loss of a breast or psychiatric injury due to loss of a child (which are automatically deemed 'significant' - section 28LF(c)-(d) Wrongs Act); an injury's degree of impairment must be assessed by the Medical Panel.  

A 'significant' injury, per sections 28LB, 28LF(a) Wrongs Act, requires a whole person impairment of:  

• 5% or more for spinal injuries;  

• greater than 5% for all other physical injuries; and  

• 10% for psychiatric injuries.  

Special damages are awards of compensation for quantifiable loss including medical expenses, economic loss, economic loss of opportunity and in some cases aggravated or exemplary damages. 

A plaintiff's claim for special damages in a litigated proceeding is outlined in the Particulars of Special Damages.  

(a) Medical expenses

Quantifiable medical expenses can be compensated for, for both past expenses and likely future treatment expenses. These can include out-of-pocket expenses incurred from the date of injury, such as medical and hospital charges, rehabilitation costs, special/treatment equipment and travel expenses to/from treatment.  

A plaintiff can also claim future treatment or rehabilitation likely to be required the injury.  

(b) Gratuitous care and assistance 

A plaintiff can claim the commercial rate of care and assistance for care provided by friends or family directly related to the alleged injury (and not what they would be doing anyway). Care services must be for more than 6 hours per week for longer than 6 months. This kind of compensation is commonly referred to as 'Griffiths and Kerkemeyer' damages, which existed in the common law from 1977 before the Wrongs Act imposed statutory limits on gratuitous care.  

(c) Economic loss 

Economic loss can be claimed for both past and future losses. Past economic loss is commonly sought for notional income a plaintiff would have received while affected by the alleged injury (less any income earned), capped at three time the average weekly earnings.  

Future economic loss compensates a plaintiff for income they will not earn into the future as a result of their injuries. Future economic loss can be calculated on a weekly basis, or where too uncertain or where the loss is too difficult to quantify mathematically, it can be provided for by way of a global amount.  

Superannuation entitlements (both past and future) can also be sought as economic loss damages, calculated by applying the appropriate statutory rates to the periods of past or future lost wages.  

(d) Loss of opportunity

Case law in Victoria requires a claim for loss of opportunity to be more than speculative. A plaintiff is required to first establish the value of the opportunity alleged and then prove a causal connection between the defendant's wrong and the quantified lost opportunity. See (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332).  

Such losses of opportunity could for example include loss of opportunity to increase working hours or the loss of opportunity to increase the length of career.  

In order to prove a loss of opportunity, the plaintiff must be able to identify a commercial opportunity of some value (which is more than speculative or negligible), before then convincing the court that the opportunity has been lost, and that the plaintiff would otherwise have pursued the opportunity if not for the injury. The court will then consider the amount of compensation to be awarded having regard to the prospects of success had this opportunity been pursued. See (Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88). This will often mean the value of the lost opportunity will be discounted by the percentage chance of success.  

Aggravated and exemplary damages allow the recovery of damages in a greater amount than a plaintiff's actual loss, if the appropriate circumstances are present in the case. These damages are punitive and are not awarded lightly.  

Aggravated damages refer to compensation awarded where the defendant's conduct goes beyond mere negligence or breach of duty of care and is found to be particularly egregious. They are designed to compensate the plaintiff for emotional distress or humiliation as a result of the defendant's actions. This could include situations where the defendant acted deliberately or with gross negligence. Aggravated damages are not automatically awarded and must be justified by raising evidence of the defendant’s particular behaviour and the suffering experienced by the plaintiff.  

In the leading case for aggravated damages of Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Windeyer J (at 152) explained that the necessary conduct needs to be insulting, reprehensible or capable of causing the plaintiff to suffer indignity or outrage to their feelings. Aggravated damages are still available in Victoria but have been abolished in jurisdictions including Queensland and New South Wales for matters purely relying on a defendant's negligence (although there are exceptions).  

Exemplary damages are awarded as a form of punishment. Their aim is to deter the reprehensible conduct being repeated by the defendant or by others, as well as to exhibit the court’s disapproval of the defendant's conduct. Exemplary damages will often be awarded for a tort committed in circumstances involving deliberate, intentional or reckless disregard for the plaintiff.  

The award of exemplary damages is rare in actions for negligent conduct (the basis of most personal injury matters). An award requires conscious wrongdoing and severe disregard of the plaintiff's rights. See (Gray v Motor Accidents Commission (1998) 196 CLR 1.) 

A plaintiff can receive reimbursement of their costs should liability be found. Costs make up a party's legal fees and disbursements (such as barrister and expert witness fees) and are awarded in accordance with the Court's scale of costs.  

Section 24(1) of the Supreme Court Act (SCA) provides that the Supreme Court has full discretion and power to determine to which party and to what extent costs are paid (in accordance with Order 63 of the Supreme Court Rules (SCR)).  

There is a general rule for costs, known as the Costs Indemnity Rule, which dictates that the loser of a proceeding will pay the other party's costs. The default position is that the Court will assess costs on a standard basis (rule 63.31 SCR), which is an assessment of reasonably incurred costs.  

For more information about costs, see our article on costs orders. If you require advice regarding a personal injury claim or potential entitlement to damages, please contact our Institutional, Risk & Liability team to discuss your circumstances.