Special damages in Australia are financial compensation awarded to personal injury plaintiffs for quantifiable economic losses caused by another party’s negligence. Also known as economic damages, special damages reimburse plaintiffs for measurable out-of-pocket expenses including medical bills, lost wages, and other documented financial losses resulting from their injury.
Special damages differ fundamentally from general damages and punitive damages in Australian personal injury law. While special damages cover calculable economic losses with receipts and documentation, general damages compensate for non-economic losses such as pain and suffering, emotional distress, and diminished quality of life. Punitive damages, by contrast, are designed to punish defendants for particularly egregious negligence rather than compensate the plaintiff.
Special damages in Australian personal injury claims typically include:
- Medical expenses – Past, present, and future medical bills including hospital care, surgeries, chemotherapy, radiation therapy, prescription medications, rehabilitation services, and home modifications for disability accommodation
- Lost wages and income – Compensation for time away from work during treatment and recovery, including future earning capacity if permanently disabled
- Legal costs – Expenses for pursuing the claim including solicitor fees, court filing fees, expert witness costs, and deposition expenses
- Transportation costs – Travel expenses to and from medical appointments and treatment facilities
- Family member losses – In wrongful death cases, funeral expenses and compensation for dependants who relied financially on the deceased
The fundamental legal purpose of special damages in Australia is to restore plaintiffs to their financial position before the injury occurred. These damages require documentation and proof of actual financial loss, making thorough record-keeping essential for maximising your compensation entitlement.
This comprehensive guide explains what qualifies as special damages under Australian law, how they’re calculated for different injury types, what documentation you need to support your claim, and how special damages integrate with your overall personal injury compensation package.
Special Damages vs. General Damages
In the realm of personal injury litigation, such as a lawsuit stemming from a cancer misdiagnosis, two primary categories of damages come into play: special damages and general damages. Special damages are earmarked for quantifiable financial losses, encompassing expenses like medical bills and lost wages. On the other hand, general damages are designed to compensate for intangible losses that lack a precise monetary figure. These may encompass aspects like diminished quality of life, physical discomfort, and emotional distress endured by the plaintiff.Top of Form
Special damages and general damages serve as avenues for compensating plaintiffs for the injuries they’ve sustained. In contrast, punitive damages represent a distinct form of personal injury compensation. Rather than solely focusing on compensating the plaintiff, punitive damages are primarily intended to penalise the defendant for their negligence or misconduct. This punitive aspect aims to deter similar behavior in the future and uphold accountability within the legal system.
Types of Special Damages
Various types of personal injury lawsuits entail distinct forms of special damages tailored to the specific circumstances of the case. For instance, in a car accident lawsuit, special damages might encompass expenses related to repairing the plaintiff’s vehicle. Conversely, in a cancer misdiagnosis lawsuit, special damages typically address the plaintiff’s medical expenditures incurred due to additional treatments necessitated by the misdiagnosis, alongside compensation for lost earnings resulting from time away from work.
Medical Bills
The financial burden linked with cancer misdiagnosis, and cancer more broadly, can be staggering. Often, effective cancer treatment demands a multifaceted approach, involving various types of therapies administered concurrently. Moreover, the treatment trajectory for cancer may extend over a prolonged period, particularly in instances of delayed diagnosis or failure to diagnose, where the cancer proliferates or metastasises to other bodily regions.
Calculating Medical Bills
Special damages pertaining to medical expenses often encompass a comprehensive scope, accounting for past, present, and potential future medical bills, as warranted. In instances where the patient faces permanent disability or necessitates ongoing medical care, projections of future costs may inform the calculation of the compensation. Additionally, special damages may extend to cover ancillary expenses such as home modifications, particularly in cases where the patient’s disability mandates alterations like guardrails or wheelchair-accessible entryways.
Special damages have a broad scope, encompassing various medical expenses such as, but not limited to:
- Testing and laboratory work
- Surgical procedures
- Chemotherapy sessions
- Radiation therapy treatments
- Targeted therapy interventions
- Immunotherapy treatments
- Hyperthermia sessions
- Stem cell transplants
- Photodynamic therapy sessions
- Blood transfusions
- Prescription medications
- Post-treatment rehabilitation services
- Transportation expenses to and from medical facilities for treatment
Lost Wages
For many individuals diagnosed with cancer, especially due to misdiagnosis, the ensuing treatment journey can necessitate prolonged periods away from employment or even result in job loss. This outcome stems from the taxing demands of cancer therapy, which impose physical, emotional, and time-related strains on patients. Notably, in cases of delayed diagnosis or failure to diagnose, subsequent treatment regimens tend to be more intensive and exact a heavier toll on the individual. Similarly, when individuals are erroneously diagnosed with cancer, subjecting them to unnecessary treatments, the repercussions can be debilitating, exacerbating their physical and emotional well-being.
Other Special Damages
Special damages commonly encompass expenses related to initiating and pursuing a cancer misdiagnosis lawsuit, which often entails a complex and financially demanding legal process. These costs may entail hiring legal representation, filing fees for necessary documents, conducting depositions of relevant parties, engaging expert witnesses for testimony, and assorted miscellaneous fees.
Special Damages for Family Members
In cases where the patient succumbs directly due to cancer misdiagnosis, surviving family members or affected individuals may step in as plaintiffs in the ensuing lawsuit. These plaintiffs are eligible to receive special damages encompassing medical bills, funeral expenses, and other related costs incurred. Moreover, if the plaintiffs were reliant on the deceased patient for financial support, special damages may be granted to offset the estimated economic impact suffered.
Rebecca Sorgiovanni is the Director of Soul Legal, a trusted Perth-based injury compensation lawyer with over two decades of experience representing injured clients in complex litigation and tribunals across Western Australia.
