Damages for pain and suffering
1st Nov 2018
A jury in the matter of Collins v Staminirovitch  VSCA 342 allowed a plaintiff, who sustained comminuted fractures to her nasal bones with ongoing cosmetic deformity and a mild psychiatric reaction, $100,000 in damages for the pain and suffering aspect of her claim. The Court of Appeal upheld this verdict in its decision of 23 November 2017 in the face of an appeal claiming that a far more substantial psychiatric injury should have been found. While defendants may rely upon this decision in arguing for low levels of damages, I would caution that this plaintiff had significant credibility issues in that she failed to advise her doctors regarding some significant matters in her history and she also failed in-built validity tests in relation to neuropsychological and olfactory issues.
Further, jury decisions on damages are notoriously variable and the hurdle faced by the unhappy party on appeal is substantial. This hurdle is probably best summarised by the Court of Appeal as follows:
‘…In order to succeed, the applicant must demonstrate that the jury, acting reasonably, could not, on the available evidence, have arrived at the conclusions but did in relation to each head of damages claimed by the applicant.’
It went on to say, ‘The Appeal Court is required to assume that the jury took the view of the evidence that was most favourable to the verdict. As such, the threshold for an appellant to succeed, on such a ground, is a formidable one…’
Likewise, defendants might take some joy from the decision of Macaulay J in Davies v Nilsen  VSC 557 in the Supreme Court on 19 September 2016, where His Honour assessed pain and suffering damages of $125,000 for the neck and upper back while rejecting more significant injuries. The Court of Appeal did not disturb this part of the decision but did allow the appeal because a substantial knee injury (not other substantial injuries claimed) was held to be caused by the subject accident. Credibility issues were again in play, in particular the fact that there was very significant delay in the reporting of some injuries and the fact that this plaintiff had significant collateral issues which she attempted to attribute to the subject accident. In my view, the decision is not one that should be relied upon by defendants because it essentially gives support for the fact that $125,000 is a reasonable amount for a mere whiplash injury, that part of the trial judge’s decision not having been impeached by the Court of Appeal or even under challenge from either party.
It would appear to me that these decisions are less significant than might be claimed. As always, caution is required with assessments by juries. More pertinently, credibility issues are likely to be the most significant problem for a plaintiff in personal injury claims. There are of course a variety of ways that the plaintiff’s solicitor can protect a client from these issues: by cautioning the client at the outset, ensuring that histories given to practitioners are consistent and scouring medical records, to name but a few strategies.
Harry Gill won the Solicitors Prize for Young Solicitors in Injury Law in 1989 and was accredited as a Specialist in Personal Injury Law since 1994. He later served on the Personal Injury Advisory Committee which sets the accreditation exams for several years. He also had a stint on the TAC Legal Liaison Group. Harry was admitted into partnership at Robinson Gill in 1998. He was Chair of the LIV’s Workers’ Compensation Committee from 2004 to 2013, a time when the WorkCover scheme achieved far greater stabilisation after two decades of turbulence. His persistent lobbying was largely responsible for an amendment to the Accident Compensation Act. He continues to serve on the Workers’ Compensation Committee and the VWA’s Legal Liaison Group.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).