• There can be no claim for compensation under medical negligence law if you have not suffered harm of some kind. Types of harm that may attract a claim include:
  • new injuries or disease;
  • worsening of pre-existing medical conditions;
  • reduced life expectancy;
  • loss of earning capacity;
  • pain and suffering; and
  • pecuniary (monetary) losses such as medical expenses.
• In most states and territories the injury suffered must be serious enough to meet the relevant injury threshold. Generally to meet the injury threshold the victim’s injury must be:
  • a significant injury; or
  • a permanent injury.

• The definition of what constitutes a significant injury will vary from state to state. You need to check the relevant legislation in your state or territory as the rules are different in each jurisdiction.
  • Some cases have revealed that the courts will not consider injuries such as amputated fingers and toes or loss of senses such as taste to be serious injuries despite the fact that these types of injuries can have a significant impact on a person’s quality of life.
  • The law will take a person’s circumstances into account when determining the impact of the injury. For example if a professional gymnast that relies on her toes for balance has her little toe amputated she is likely to have a strong claim given that the loss of her toe would have a significant impact on her life and ability to continue working in her field. A receptionist who suffers the same injury may have greater difficulty proving that the injury is significant.

Many legal commentators have criticised the permanent injury element of the law as it means that people who suffer serious, debilitating injuries for many years that cost thousands of dollars in treatment or therapy can still be excluded from seeking general damages if a medical panel determines that the injuries are not permanent or significant.