Pain and suffering consequences - balancing between what has been lost and what retained

Pain and suffering consequences - balancing between what has been lost and what retained

We were successful today in a serious injury application heard in the County Court of Victoria. Our client was a teacher who suffered a lower back injury during the course of his employment. He had suffered ongoing lower back pain since that time. Although he had been able to keep working for several years after the accident, he had to modify his duties and could no longer enjoy the aspects of teaching that he especially loved. He gave evidence to the Court that is back injury prevented him from kicking a football with the students at lunch time, in going on school camps and even sitting on the floor to teach his student was no longer possible.

In addition to these restrictions at work, our client was no longer able to jog or bike ride, and these were both activities he enjoyed before the accident on a regular basis. Our client was also restricted in what he could do around the house. He coped by mowing the lawn slowly and with rest breaks. He however could no longer chop his own fire wood.

Our client also gave evidence that he avoided taking medication for his ongoing pain. The Defendant barrister submitted to the Court that was an indication that the pain was not so significant as to meet the serious injury test. However the Judge said that notwithstanding that, the evidence as a whole was that the pain and suffering consequences to the Plaintiff were significant. The Judge said that the Court must look at the consequences suffered by the particular Plaintiff, not a hypothetical Plaintiff.

The Judge stated the conventional yardstick in determining whether the pain and suffering consequences meet the statutory testing is to determine what the Plaintiff has lost, and in doing so, one can be informed of what has been lost by what has been retained.

Andrea Tsalamandris, the solicitor acting for our client said "It helped that our client was a delightful, honest and very genuine Plaintiff. We will shortly have a settlement conference to discuss the Department's negligence and the damages the Plaintiff should be entitled to."

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