After a serious car accident, the losses that hurt most are not always the ones with a dollar figure attached. The constant pain, the things you can no longer do, the hobbies and moments with family that the injury has taken from you, these matter enormously, and the law does recognise them, through what is called non-economic loss, better known as pain and suffering compensation.
But access to it is deliberately limited. In New South Wales, you cannot claim pain and suffering unless your injury clears a specific and demanding threshold, expressed as a percentage called whole person impairment. Understanding that threshold, how it is assessed, and two traps that catch people out, is essential to knowing whether this part of a claim is open to you.
This guide explains what pain and suffering compensation is, the 10 per cent whole person impairment threshold that governs it, how the assessment works, and how much this compensation can be worth. Please treat it as general information rather than advice about your own claim, and you should seek legal advice about your particular situation before making decisions about it.
What is pain and suffering compensation?
Pain and suffering compensation, which the law calls non-economic loss, is the part of a damages claim that compensates you for the human cost of a serious injury rather than the financial cost. It covers things like physical pain and suffering, the loss of enjoyment of life, the loss of the ability to do the things you used to, and disfigurement.
It is quite different from economic loss, which compensates your lost earnings and superannuation, and from your treatment and care, which are handled separately. Non-economic loss is about the effect of the injury on your life, not your bank account.
It is also only available as part of a common law damages claim, which means someone else must have been at fault for the accident. And on top of that, it carries its own gateway, the impairment threshold that the rest of this guide explains.
The 10 per cent WPI threshold: the gateway to pain and suffering compensation
Under section 4.11 of the Motor Accident Injuries Act 2017 (NSW), the scheme regulated by the State Insurance Regulatory Authority, known as SIRA, you cannot recover damages for non-economic loss unless your permanent impairment is greater than 10 per cent whole person impairment.
This threshold is deliberate. The Act openly states that the intention is to restrict access to pain and suffering compensation to serious injuries. In other words, the scheme provides income support and treatment to a wide range of injured people, but reserves pain and suffering damages for those whose permanent impairment is significant.
Whole person impairment, or WPI, is a medical measure, expressed as a percentage, of the permanent effect of your injury on your body as a whole. The greater than 10 per cent test is the line that decides whether this head of compensation is available to you at all.
What whole person impairment means and how it is assessed
Whole person impairment is assessed by a specially trained medical assessor, in accordance with the Motor Accident Guidelines, and only once your injury has stabilised, which doctors describe as reaching maximum medical improvement. Before that point, a percentage is unreliable, because your condition may still be improving or deteriorating.
Where you and the insurer cannot agree on your degree of impairment, the question is resolved by an independent medical assessor appointed by the Personal Injury Commission, whose determination on the percentage is binding. Because that single percentage can decide whether pain and suffering compensation is available, the assessment is one of the most important moments in a serious claim, and it is worth ensuring it is done properly and on complete evidence.
The two traps that catch people out
This is where precision matters, because two features of the threshold defeat claims that people assume will qualify.
The first is that the test is greater than 10 per cent, not 10 per cent or more. An assessment of exactly 10 per cent does not meet the threshold. It has to be more than 10 per cent, which in practice means 11 per cent or above. A single percentage point, the difference between 10 and 11, can be the difference between no pain and suffering compensation and a substantial award, which is why the accuracy of the assessment is so important.
The second trap is that physical and psychological impairments cannot be combined to reach the threshold. Under the Guidelines, impairment from a physical injury is assessed separately from impairment caused by a psychological or psychiatric injury, and the two cannot be added together. So if you were assessed at, say, 6 per cent for a physical injury and 6 per cent for a psychological injury, you would not have 12 per cent. You would have two separate figures, neither of which exceeds 10 per cent, and neither of which meets the threshold on its own. To qualify, you generally need more than 10 per cent from your physical injuries alone, or more than 10 per cent from your psychological injury alone.
These two rules explain why some seemingly serious claims fall short, and why the way impairment is assessed and argued makes such a difference.
How the thresholds fit together
It helps to see how the pain and suffering threshold sits alongside the other gates in the scheme, because they are often confused. The table below sets it out.
| Entitlement | What you generally need |
|---|---|
| Statutory benefits during recovery | To have been injured in a motor accident, available regardless of fault for an initial period |
| Damages for economic loss | More than a threshold injury, and another party at fault |
| Damages for non-economic loss (pain and suffering) | Greater than 10 per cent whole person impairment, and another party at fault |
Two points stand out. Non-economic loss carries the highest bar of the three. And importantly, if your impairment is 10 per cent or less but your injuries are more than threshold injuries, you can still claim damages for economic loss, your lost earnings, even though pain and suffering is not available to you. The 10 per cent threshold closes one door, not all of them.
It is also worth separating the greater than 10 per cent WPI test from the earlier threshold injury question. Whether you have a threshold injury, once called a minor injury, is largely a diagnosis based question decided early in the claim. Whole person impairment is a later, percentage based assessment. They are different tests at different stages, and clearing one does not automatically clear the other.
How much is pain and suffering compensation?
If your impairment is greater than 10 per cent, the amount of pain and suffering compensation is not fixed by the percentage. Instead, it is assessed according to the severity of your non-economic loss, meaning how seriously the injury affects your life, up to a maximum amount set by the Act and indexed each year.
So the percentage is the gateway, but the size of the award reflects the real impact of the injury on you, your pain, your limitations, and the things you can no longer do. Two people who both clear the threshold can receive very different amounts depending on how profoundly their lives are affected. Because the current maximum is indexed annually, the up to date figure is published by SIRA, and a lawyer can tell you where a particular injury is likely to sit within the range.
Why the impairment assessment is worth getting right
By now the theme is clear. In a serious claim, a great deal turns on a single percentage. An assessment a point or two too low can wrongly place you at or below 10 per cent and shut out pain and suffering compensation altogether. An assessment that fails to properly capture the full extent of your injuries can understate where you sit.
That is why the impairment assessment should never be treated as a formality. Making sure every injury is properly documented and assessed, that the right specialists are involved, and that a disputed or unfavourable assessment is challenged through the Personal Injury Commission, can be the difference between a claim that includes pain and suffering compensation and one that does not.
How Stephen Young Lawyers can help
Pain and suffering compensation sits behind a precise and unforgiving threshold, and the assessment that decides it is exactly the kind of thing insurers can get wrong, sometimes in ways that quietly cost an injured person a significant part of their claim.
An experienced personal injury lawyer makes sure your injuries are fully documented before the assessment, that the correct approach is taken to physical and psychological impairment, and that an assessment placing you at or below the threshold is tested rather than accepted. Where the percentage is disputed, we can pursue the question through the Personal Injury Commission and make the strongest case for a proper assessment.
If you want to understand the wider picture, we have guides on how CTP compensation payouts are calculated, on statutory benefits versus common law damages, and on disputing a threshold injury decision, which is the earlier and separate gate discussed above. You can read about your broader options on our motor vehicle accident claims page. As an Accredited Specialist personal injury firm based in Sydney CBD, with a multilingual team and a No Win No Fee approach for eligible matters, we can review your situation and tell you where you stand.
No lawyer can promise you a particular outcome, and every claim turns on its own medical evidence. What can be said is that when so much rests on a single percentage, that percentage is worth getting right.
Speak with an experienced motor accident lawyer today
If you have suffered a serious injury in a motor accident anywhere in New South Wales and want to know whether you can claim pain and suffering compensation, it is worth having your impairment and your entitlements assessed properly.
Contact Stephen Young Lawyers today for a free, no obligation consultation. Call us or get in touch through our website to speak with an experienced personal injury lawyer about your injuries and your options.