Michael Lombard and Stella Gold recently delivered an address to the State conference of the Australian Lawyers Alliance, regarding some significant recent court decisions into what constitutes a'Serious Injury'. People injured in work-place or transport accidents must prove that they have a'Serious Injury' before they can sue for compensation.

Recent case-law has gone some distance in shedding light on this vexed area of personal injury law in Victoria. They pointed to the recent case in the Victorian Court of Appeal of Haden Engineering v McKinnon, which they said should be a guide for a significant time into the future". That was so because Appeal Court President Justice Chris Maxwell listed elements that needed to be considered for pain and suffering, including a plaintiff's self care and management, mobility, cognitive functioning, sleep, household and family duties, recreation, social activities and sexual life.

Mr. Lombard and Ms. Gold said in Haden Engineering it appeared President Maxwell "decided there needed to be a guide [that] would be there for the future for all practitioners to follow". They said President Maxwell indicated there needed to be consistency in applying the serious injury test. "He felt it would be a useful exercise to do a bit of a 'research project' on all the previous Appeal Court decisions and come up with a 'catalogue' of the factors that need to be considered when determining what was a serious injury," Lombard and Gold said. They said President Maxwell "was on his own with his 'research project' as neither counsel for the parties in Haden Engineering were able to assist. They felt every case was different. The other judges also felt there was little utility in comparisons or check lists", Lombard and Gold said.

But they said President Maxwell "may, however, have been right as his judgement does provide a guide to us and, although it may not include every possible factor leading to a 'serious injury', it certainly gives us something to think about". Lombard and Gold said President Maxwell "looked deeply into the pain aspect and the restriction in mobility because of pain" stemming from Barry McKinnon's injuries in the Haden Engineering case. He seemed to divide that into two parts, they adduced. "The first was the actual experience of pain which could be called the 'ouch factor'. He tried to measure the actual suffering [McKinnon] went through because of his physical injury." The second element President Maxwell highlighted was the consequences of suffering the pain and how that had a disabling affect on McKinnon.

Lombard and Gold also touched on the Vic Appeal Court's Sutton v Laminex Group Pty Ltd decision. They said the Appeal Court in Sutton confirmed the factors President Maxwell indentified in Haden Engineering and "indicated the way these factors are to be evaluated". They said in the County Court, from which worker Richard Sutton had appealed, Judge Frances Millane "had sought to dissect" the pain and suffering consequences into two separate categories to see if they were 'very considerable'. But the Appeal Court indicated the way to determine whether a plaintiff had sustained a serious injury as a result of pain and suffering was to look at all the consequences as a whole, Lombard and Gold said. "As we know, every case is different. The Appeal Court through President Maxwell and the recent case of Sutton have given us a method which we probably would all be wise to at least respect if not follow when dealing with the effects of pain from physical injury." They said the County Court had already started using President Maxwell's decision as an assessment guideline.