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Working through the pain personal injury special issue

Cover Story

Cite as: May 2011 85(5) LIJ, p.30

Personal injury law has undergone major and all too frequent changes in the past decade. This LIJ special issue on the topic is a welcome and timely contribution to our understanding of this important area of law.

By LIV accredited specialists

Practitioners have been faced with radical tort reform, frequent amendments to the accident and transport compensation Acts and a federal workers’ compensation scheme that has expanded from a scheme which covered only commonwealth government employees to a scheme which now covers thousands of workers employed by national companies.

At the core of personal injury law, whether you are advising a corporate client or an individual, is the suffering of a human being. It is to everyone’s benefit if practitioners learn to navigate these complex waters with skill, knowledge and an understanding of human nature. The articles contained in this special issue will hopefully be an excellent resource and help to provide some guidance in this ever-changing area of law.

Key to any damages claim for personal injuries is an understanding of pain and suffering, what these words mean and how pain and suffering damages are to be assessed. Kim Shaw provides an analysis of the Court of Appeal decision in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69. This case concerned the meaning of pain and suffering for the purpose of claiming damages under the Accident Compensation Act and provides some clarity for practitioners contemplating a serious injury application for pain and suffering only for injured workers.

On the issue of serious injury applications is an article by Andrea Tsalamandris and Michael Lombard which reviews developments in serious injury case law with respect to physical and psychological injuries. The psychological impact of injury and pain can be difficult to measure objectively. This article discusses how pain is evaluated, as well as the disabling effects of pain and the interaction between physical and psychological conditions. It also provides some handy tips for practitioners in preparing affidavits in serious injury applications.

Even though practitioners often focus on serious injury cases, many seriously injured claimants are dramatically affected by TAC decisions under the statutory scheme. Michael Lombard has contributed a second article to this special issue of the LIJ in which he discusses a range of entitlements under the “no fault” scheme, including modification to vehicles, rehabilitation and disability services. The article also refers to a number of recent VCAT decisions that are essential knowledge for practitioners who deal with TAC claims.

Damian Clarke covers key developments in commonwealth workers’ compensation law. He refers to recent landmark cases, including Fellowes v MRCC [2009] ACA 38 and Comcare v Broadhurst [2011] FCAFC 39, and discusses recent jurisdictional policy advices issued by Comcare and the amendments of April 2007 to the legislative scheme.

Contributory negligence in industrial cases is the topic of Emily Anderson’s article. It covers the duty of care owed to workers by employers, when it is open to find that an employee’s conduct constitutes contributory negligence and if so, what percentage of blame can reasonably be attributed to the plaintiff. The article also provides an analysis of recent superior court decisions that have dealt with the issue of contributory negligence.

Finally, Craig Sidebottom deals with the new costs regime that was introduced in October 2010 for litigated and pre-litigated serious injury claims in the WorkCover system. He provides some tips for navigating the fixed costs model (FCM). This article is a must for practitioners dealing with serious injury claims under the WorkCover scheme, given the significant costs penalties that underpin the operation of the FCM that will apply where claims for loss of earnings are ultimately unsuccessful.

All the articles in this LIJ special issue are written by LIV accredited personal injury law specialists who are recognised for their experience and expertise in this field of law. The LIJ thanks them for their contributions. The LIV Personal Injury Law Advisory Committee also encourages members to consider applying for accredited specialisation in this fascinating area of law. For further information, contact the LIV at special@liv.asn.au or ph 9607 9460.

LIV Accredited Specialisation Personal Injury law Advisory Committee



Editor’s note: This is the first LIJ special issue written exclusively by LIV accredited specialists.

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