The ISV Scale for the Calculation of General Damages (Pain and Suffering)
The ISV Scale forms part of the Civil Liability Act 2003 (CLA) and the Workers' Compensation & Rehabilitation Act 2003 (WCRA), as these Acts apply to personal injury claims generally and work injury claims in Queensland.
In a personal injury claim, there are a number of what we term "heads of damage" which a person can claim compensation for. These comprise:
- General Damages - this refers to the pain and suffering and loss of amenities of life suffered as a consequence of accident injuries
- Past and future medical expenses or out of pocket expenses relating to your injuries
- Past and future loss of income resulting from your injuries
- Past and future care and assistance required due to your injuries
- Loss of superannuation benefits on past and future lost income
- Interest on past medical expenses, past care, past pain and suffering or past income
When calculating the amount that should be compensated to an injured person in a personal injury claim, the Court awards an amount it feels appropriate for each of the above "heads of damage" above. When doing so, the Court has regard to the injuries sustained, the impact these injuries have had upon the claimant and their pre-injury lifestyle and employment, and their reasonable needs given those injuries. These amounts are added up to provide the total amount of compensation that should be awarded for the claim, or what we call the "quantum" of the claim.
What the ISV scale does is regulate the award of the first "head of damage" above, General Damages, in personal injury claims in Queensland.
The idea of the scale is to rate the seriousness of the injury between 0 and 100, with the most minor injury (eg.a minor laceration to a finger), being at 1 on the scale, and the more serious injuries (eg tetraplegic with extremely limited function) being at 100, and then according a monetary value to that rating.
The CLA Regulations at Schedule 4 applies to most personal injury claims apart from work injury claims in Queensland. The WCRA at Schedule 9 applies specifically to all work injury claims in Queensland. Each of these Schedules include a table which sets out a range of injuries that can be suffered by a claimant, with varying types of injuries to varying parts of the body. Each injury has an ISV range accorded to it, for example, a moderate whiplash injury to the neck may have an ISV range of 5 to 10. Each injury type also has a set of criteria which indicates the level at which the injury should be assessed within the allocated range, so the appropriate ISV rating for the injury can be ascertained.
Once the ISV is ascertained, that ISV number accords to a monetary amount on the ISV Scale. For instance, for a moderate whiplash injury to the neck, having regard to the extent of the injury it may be assessed at the higher end of the scale and therefore has an ISV rating of 10. This then correlates on the ISV Scale to a monetary amount of $11,000 to $15,750, depending on the date the injury/accident was sustained.
If you have sustained other injuries in the work accident or motor vehicle accident, or some other incident or injury, then those other injuries will also be taken into account when working out your ISV rating for all of your accident injuries. What a Court will do is it will ascertain which of your injuries is the dominant injury, meaning, which injury is the most severe of all your injuries. To do this, it will look at each injury and its rating under the ISV scale, and will then assess the one with the highest ISV rating as the dominant injury. Once the dominant injury ISV rating is calculated, the Court will then consider all of the other injuries sustained in the accident and it will increase the ISV rating for the dominant injury by a percentage to take the other injuries into account.
The percentage increase used is dependent on the extent of the other injuries, their severity and how they impact on the claimant's pre-injury lifestyle and employment etc. Similar considerations are taken into account as when you are calculating the ISV rating for the dominant injury. So if the other injuries are only minor and have resolved since the accident, but may have caused some pain and discomfort for a period following the accident, then the increase percentage will only be small, say 0 to 25%. But if the other injuries will continue to be a problem for the claimant and might require further treatment in the future, then the percentage will be higher, say 25 to 50%. The more injuries there are, the higher the percentage increase.
For example, if the dominant injury is a moderate whiplash injury as we have discussed above, at an ISV rating of 10, if there are other lesser injuries involved, and those other injuries are likely to have ongoing problems for the claimant, requiring further treatment in the future and continuing to interfere with his enjoyment of life (eg. whiplash injury to his lower back), then the ISV rating of 10 might be increased by 25% to a rounded up ISV rating of 13. This will then accord to a range for General Damages at $17,900 to $21,780, depending on when the injury occurred. So if it occurred on 20 June 2016, the General Damages award for all of the injuries suffered in the accident, if assessed at an ISV rating of 13, would be $21,780.
The ISV rating must always be a whole number. So if, after increasing the ISV rating of your dominant injury by a percentage it does not come to a whole number, it is taken to the nearest whole number (eg. if calculates to 12.4, it is taken to the whole number 12, but if it calculates to 12.5 then it is taken up to 13).
The laws surrounding the calculation of all heads of damage, including General Damages, in Queensland is complex. If you would like for us to assist you in calculating General Damages and the other heads of damage of your claim, you should call us The Personal Injury Lawyers who may be able to assist with any claims or queries.