1 For some years now, civil litigation in the County Court - and civil appeals to this Court - have been dominated by disputes over 'serious injury'. This is hardly surprising since, under the Accident Compensation Act 1985 (Vic), an affirmative finding of serious injury opens the gate to common law proceedings for damages attributable to the injury.

2 In this case, the judge decided that the injury sustained by Mr McKinnon was a 'serious injury'. This Court must now 'decide for itself' whether it is indeed a serious injury.[1] The serious injury application was founded on what the Act calls 'the pain and suffering consequence' of the injury. Accordingly, the judge had to decide whether the impact of Mr McKinnon's pain and suffering on his life was -

when judged by comparison with other cases in the range of possible impairments or losses of a body function ... , fairly described as being more than significant or marked and as being at least very considerable.[2]

3 As has often been said, the serious injury test is couched in the language of impression.[3] 'Elements of fact, degree and value judgment are involved.'[4] As I have suggested previously, it may be thought unfortunate that what is obviously a very significant opportunity - that is, to sue at common law - should have been made to depend on such imprecise, impressionistic, adjectival criteria.[5] Of course, whether the statutory test is to be regarded as a satisfactory way of differentiating between those who can sue and those who cannot is a matter for Parliament.

4 What is important from the point of view of this Court, however, is to ensure so far as possible that the test is applied consistently. The rule of law requires that like cases be treated alike. The obvious risk with such imprecise criteria is that like cases may be treated differently. That risk would seem to be particularly acute when the court's judgment concerns something as unquantifiable as pain.

5 It was partly for this reason that, in the course of the hearing of the present appeal, I asked counsel for both parties whether any guidance was to be gained from previous decisions of this Court as to the criteria to be applied in determining what degree of pain and suffering was to be regarded as sufficient to qualify the injury as a serious injury. (My other concern was that this Court should receive as much assistance as possible in 'deciding for itself' whether Mr McKinnon's case satisfied the test.)

6 Both sides responded that the case law was of little or no assistance, since every case was different from every other case. As counsel for Mr McKinnon put it, 'Each aspect of suffering is individual and needs to be understood in the context of the particular person'. Senior counsel for the employer agreed: 'Each worker is different. The Court must assess the consequences for the particular worker in the context of his/her circumstances.'

7 While it is undoubtedly true that every case depends on its own facts, the importance of consistency makes the search for guidelines a necessary exercise, in my view. Consistency promotes predictability of outcome for both sides, which should in turn reduce the incentive - and the necessity - to litigate.

8 I have reviewed the decisions of this Court over the period 2006-2009 concerning the 'pain and suffering consequence' of particular injuries.[6] They do, I think, disclose a series of considerations to which judges routinely have regard when addressing the 'pain and suffering' question. What follows is no more than a summary of what the appeal decisions reveal. It is intended to be descriptive rather than prescriptive, and will doubtless be improved upon as the jurisprudence develops.

Evaluating the 'pain and suffering consequence'

9 In its accepted interpretation, the 'pain and suffering consequence' of an injury encompasses both the plaintiff's experience of pain as such and the disabling effect of the pain on the plaintiff's physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as 'the disabling effect' of the pain.)

10 As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale 'mild/moderate/severe'. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.

11 The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);[7]

(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);[8]

(c) what the doctors say about the extent and intensity of the plaintiff's pain; and

(d) what the objective evidence shows about the disabling effect of the pain.[9]

12 As to (a), the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility.[10] The Court will make its own assessment of the plaintiff's credibility if he/she gives evidence,[11] and will also take into account views expressed by examining doctors about the reliability of the plaintiff's accounts of pain.[12]

13 As to (d), the cases recognise that some plaintiffs may be more 'stoical' than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the 'stoical' plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[13] In such a case, the 'objective' evidence of the disabling effect may be of less significance than usual.

14 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff's physical functioning, and interferes with the plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): '... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.'[14]

15 As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[15] What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to [him or her].'[16]

16 Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff's:

• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;[17]
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.

Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.

17 When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff's life expectancy in order to determine the likely period for which those consequences will be experienced.[18]

18 Mr McKinnon was employed by Haden Engineering Pty Ltd as a rigger. His duties included assembling and dismantling platforms. On Tuesday 30 November 1999, he was directed to assemble part of a work platform about six to eight feet off the ground. The platform had already been partially assembled when Mr McKinnon commenced work. A 12 to 15 inch hole had been cut in the platform's steel mesh walking surface, to allow a pipe to be fitted later.

19 Mr McKinnon was working on the platform, assembling a handrail, when he stepped into the hole on the walking surface and injured his left ankle. He was taken by ambulance to Monash Medical Centre. His fracture was reduced under local anaesthetic and a plaster back slab was applied. He was admitted to hospital under the care of Mr Hooper. The following day Dr Dallasana performed an open reduction and an internal fixation, in which a metal plate and seven screws were inserted in his ankle.

20 Following his injury, Mr McKinnon was off work for about three months. On 6 March 2000 he returned to work on light duties, initially for two hours per day, five days per week. He continued to experience pain in his ankle in the region where the plate had been inserted, and was unable to perform his normal rigging duties. He could not climb ladders or support himself safely on his left foot.

21 In March 2000, Mr McKinnon started attending a physiotherapist, Mr Henry Buch, for treatment and continued to do so for about ten weeks. At the commencement of this treatment, Mr McKinnon had limited movement in his ankle joint. He was not able to extend his ankle, flex inwardly or outwardly pronate. He walked with a limp and was dragging his foot. There was redness and scaling in the affected area and he had difficulty wearing boots. Mr Buch last saw Mr McKinnon on 29 May 2000, at which time he felt Mr McKinnon was 'eighty per cent better'.

22 On 24 May 2000 Mr McKinnon was retrenched, along with about 90 per cent of Haden Engineering's workforce, due to a downturn in work. He subsequently applied for suitable lighter work, but without success.

23 In August 2000 Mr McKinnon commenced work with Peter Hayes, a horse trainer at Lindsay Park Stud in Euroa. Lindsay Park is a 1400 acre property, and Mr McKinnon is employed as a handyman and maintenance person, performing odd jobs around the property as required.

24 It was common ground on the appeal that the judge was entitled to find, on the basis of the evidence from the orthopaedic specialists, that:

(a) an x-ray taken on 18 November 2004 did not reveal evidence of osteoarthritis;

(b) any further deterioration in the injury was unlikely;

(d) Mr McKinnon's current level of treatment was reasonable;

(e) his prognosis was one of persisting lateral ankle pain and restricted mobility;

(f) he was not fit to resume his previous occupation of rigger. This situation is permanent; and

(g) if the plate and screws were removed, it might make Mr McKinnon's ankle more comfortable but this was by no means certain.

25 Mr McKinnon's evidence-in-chief was set out in two affidavits, about which he was cross-examined. The judge made the following findings of fact, which were not challenged in the appeal. Once again I adopt the findings as my own.

26 Mr McKinnon's work at Lindsay Park is full time. It involves him spending a lot of time on his feet. At times the work has a physical component to it. The employer is aware of his restrictions and is understanding of them. Mr McKinnon is generally able to work at his own pace and within his limitations. He usually starts work between 5:30am and 6:00am five days a week. He usually has to slow down some time between 11:00am and midday, when his ankle starts to ache 'quite badly'. He ceases work between 1:30pm and 2:00pm.

27 He experiences constant pain every day. The pain is with him when he wakes in the morning and gets progressively worse during the day. The pain interferes with his work and obliges him to rest for five to ten minutes, four or five times per day. The pain interferes with his sleep. In the later of the two affidavits he said:

I continue to experience problems sleeping. I get pain in the left ankle area in bed at night. I will often wake up to 3 to 5 times during the night because of the pain. Sometimes I get up, sometimes I simply lay there. It can take up to ¼ hour or so before I get back to sleep.

28 Mr McKinnon takes Panadol, 'together with Panadeine Forte when his pain is particularly bad', up to four to six per day. (Contrary to the appellant's submission, Panadeine Forte is only available on prescription.) Mr McKinnon no longer visits a medical practitioner in relation to this injury. 'If I go there they just say go home and take a couple of Panadol.'

29 Mr McKinnon's main interests, both before and after his injury, involved listening to and watching horse racing, cricket and football. He is still able to engage in these activities. As his Honour said, this suggested 'a limited loss of amenity'.

30 Mr McKinnon is aged 62. He resides with his partner and her mother in Euroa. He had always intended to retire to Euroa. He is able to perform minor maintenance around the house he lives in and at a rental property owned by his partner. He is unable to perform many of the larger maintenance tasks which he used to perform, such as painting or clearing gutters, as he has difficulty climbing a ladder. He can perform tasks such as fixing taps, replacing weatherboards and mowing the lawns.

31 Before his injury, Mr McKinnon drove a manual car. Following his injury, Mr McKinnon initially drove an automatic car. After two years he reverted to driving a manual car for safety reasons, because he was having 'too many close calls' with the automatic car.

32 Mr McKinnon is unstable when walking across uneven ground, such as paddocks, and this causes his ankle to become more painful. He wears lace-up boots because his ankle feels unstable, and he experiences difficulty running and jumping.

33 At trial, counsel for the employer submitted that the pain and suffering consequence of Mr McKinnon's injury was not even 'significant' or 'marked', and fell well short of 'at least very considerable'. As the trial judge recorded in his reasons, counsel relied in support of this submission on the fact that Mr McKinnon:

• has remained in full time employment;
• does not require any prescription painkilling medication for his problems;
• is still engaged in the social activities in which he was engaged prior to the accident;
• attends to handyman duties at home;
• chose to return to driving a manual car, rather than adjusting to an automatic - suggesting that he did not have much trouble driving; and
• he has finished up, in his sixties, in Euroa, which was where he had intended to retire.[19]

34 Although this Court must decide the question for itself, it is instructive to consider the basis of the judge's conclusion that Mr McKinnon's injury was a serious injury. His Honour said he had reached that conclusion having particular regard to the following matters:

• The plaintiff experiences constant pain. The pain is with him when he wakes in the morning and gets progressively worse during the day.
• The plaintiff's pain interferes with his work and, on a daily basis, he is obliged to rest, for up to five to ten minutes, four to five times a day.
• The plaintiff's pain interferes with his sleep and he would often wake up to three to five times during the night because of pain.
• The plaintiff's impairment restricts his mobility.
• The plaintiff is unable to work in the occupations in the construction industry in which he worked prior to his injury.[20]

35 It was of particular significance, his Honour said, that he had reached a favourable conclusion about Mr McKinnon's credibility. His Honour found Mr McKinnon:

to be a straightforward witness who did not seek to embellish or exaggerate his injury or its impact on him.[21]

The plaintiff's credit is particularly relevant to the assessment of pain and suffering as such matters depend, to a significant degree, on the plaintiff's evidence. Pain is not objectively measurable and ultimately the determination of whether or not a worker is in, for example, constant severe pain, depends on their credit.[22]

36 The appeal submission for the employer was that the judge:

placed too much reliance on [Mr McKinnon's] assertion that he suffered from constant pain, without making a careful assessment of the degree of the pain suffered by [Mr McKinnon], particularly by reference to [his] current capacity for work and domestic chores.

37 It was submitted that the 'assessment of the degree of the pain suffered' had to be informed by various 'objective matters of fact', which were said to be the following:

(a) while Mr McKinnon was unfit for his pre-injury work, that was at least partly to do with his inability to climb ladders. He was capable of holding down some employment as a labourer at Lindsay Park and continued to work five days per week in that position;

(b) despite Mr McKinnon's evidence that he had permanent, daily pain, he was taking no prescription medicine. (As noted earlier, Panadeine Forte is in fact prescription-only medicine);

(c) Mr McKinnon remained able to drive a car. Although he found driving a manual car difficult because of his injury, he had not found it necessary to learn to drive an automatic car;

(d) Mr McKinnon was able to perform 'many domestic and maintenance chores', both around his own home and around his partner's rental property. According to the submission:

The tasks which he now cannot undertake appear to relate mainly to jobs which would require balancing on or climbing a ladder. He can mow the lawns with short rests; he 'potters' around the shed; he can fix a tap or replace a weatherboard off the side of the house. He might 'repair a friend's bike or fix up a piece of machinery which has seized up.'

(e) Mr McKinnon was still able to undertake all of his pre-injury leisure activities, without restriction;

(f) he had ended up, in his sixties, living and working in Euroa, a town where he owned property and to which he had always intended to retire;

(g) the radiology did not reveal any evidence of osteoarthritis and the orthopaedic evidence was that there was unlikely to be any further deterioration of the injury to the ankle.

38 It is certainly true, for the reasons given earlier, that the assessment of pain must take into account 'objective matters of fact' as well as the plaintiff's own account of the pain. Plainly enough, the credibility of the plaintiff is a particularly relevant matter, though regard would always have to be had to what the evidence showed about the effects of the pain on the plaintiff's capabilities. If I may say so, with respect, the trial judge's approach in this regard was exemplary.

39 In essence, the submission for the employer was that Mr McKinnon's pain was not 'of such a dramatic nature' or 'so significant' or 'so overwhelming' as to satisfy the Court that the pain and suffering consequence of the injury was 'at least very considerable'. While Mr McKinnon undoubtedly had some limitations and experienced some pain, his range of activities - both work and recreational - has not been 'very seriously limited'.

40 For his part, counsel for Mr McKinnon submitted that this Court should come to the same conclusion as the primary judge did. As the plaintiff was obliged, for economic reasons, to be in paid employment, it was significant - so it was said - that he was prepared to endure the exacerbation of his pain which occurred when - for example - he trod on uneven ground. Counsel implicitly invoked the notion of the 'stoical' plaintiff when he argued that Mr McKinnon was 'a tough person', whose tolerance of pain was greater than would be the case with a less robust person. This meant, he submitted, that less significance should be attached to the type of pain-relieving medication which Mr McKinnon takes. He had properly conceded that Panadol and Panadeine Forte were at the lower end of the scale of such medication and that much stronger analgesics are often prescribed.

41 Counsel for Mr McKinnon also pointed out that there was no suggestion in any of the medical reports that Mr McKinnon's accounts of the pain he was experiencing were exaggerated or were not commensurate with the organic injury which he had suffered. I would add, as Mr McKinnon's counsel pointed out to the trial judge, that at no point in the course of a quite detailed cross-examination was Mr McKinnon challenged on his evidence about the constancy of the pain or the extent of its interference with his life.

42 Counsel for Mr McKinnon conceded - properly - that, because Mr McKinnon's recreational activities were largely passive, they were not affected by pain in his ankle. As a result, the 'pain and suffering consequence' of the injury was less serious than it would have been had he had active recreational pursuits which the pain prevented him from pursuing.

43 In my opinion, Mr McKinnon's serious injury application should succeed. Like the primary judge, I consider that the pain and suffering consequence of his ankle injury is fairly described as 'being more than significant or marked and at least being very considerable'. Central to this conclusion is the fact that, on Mr McKinnon's uncontradicted evidence, the ankle pain dominates his life. It is all-pervasive. So much is clear from the matters succinctly summarised by the judge, as set out in paragraph [34] above.

44 It seems to me no misuse of language to describe Mr McKinnon's pain and suffering as 'very considerable'. The pain is constant and continuing. It interferes every night with Mr McKinnon's sleep and every day with his performance of the duties of his employment. Not only has the pain prevented Mr McKinnon from resuming the occupation which he enjoyed but it interferes with his enjoyment of his present occupation.

45 It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon's enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.

46 Accordingly, in my opinion, the appeal must be dismissed.

47 Notwithstanding that the respondent is able to work in a position that requires to some extent movement and dexterity and maintains the pastimes he enjoyed before he was injured, I consider that the evidence as a whole establishes that the respondent suffers pain which is properly described as very considerable. The respondent's stoicism cannot hide the fact that pain is a major component in the respondent's life.

48 Pain is not objectively measurable. Experience of and reaction to pain varies from one person to another. Accordingly, I share Nettle JA's doubt as to the utility of comparing the evidence in the case at hand with the evidence in other cases or with a list of commonly encountered indicia of pain.

50 I have had the advantage of reading in draft the reasons for judgment of Maxwell P and gratefully adopt the statement of facts and evidence set out in paragraphs 18 to 32 of what he has written.

51 As to matters of principle, however, I approach the appeal upon the basis that the assessment of whether pain and suffering consequences are sufficient to qualify an injury as a serious injury is a question of fact, degree and value judgment in the determination of which comparisons with other cases and check lists of relevant considerations are at best of limited utility.

52 If that consigns the process to the realms of imprecision, impression and adjectival criteria, then Parliament should understand that it has only itself to blame.

53 Having considered all of the evidence which was before the judge below, I am unable to fault his Honour's analysis. Evidently, he was impressed by the

respondent as a witness of truth and accepted the respondent's evidence as to the level and duration of his pain and its consequences. I do too.

54 Like the judge, I consider pain of that level, duration and consequences is more than significant. In my view, it is at least very considerable.

[1] Accident Compensation Act 1985 (Vic) s 134AD. (This section has now been repealed, with effect from 10 December 2009, by the Accident Compensation Act Amendment Act 2010 (Vic).)

[2] Accident Compensation Act 1985 (Vic) s 134AB (38)(c).

[3] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [49] ('Stijepic'); Sabo v George Weston Foods [2009] VSCA 242, [67] ('Sabo').

[4] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 167 (McGarvie J), cited with approval by the High Court in refusing special leave to appeal: Fleming v Hutchinson (1991) 66 ALJR 211.

[5] Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, [42].

[6] The cases to which reference is made in the judgment are as follows. The brackets identify the writer(s) of the leading judgment:

• Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 (Chernov JA) ('Sumbul');

• Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (Ashley JA) ('Dwyer No 2');

• Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (Warren CJ and Hargrave AJA) ('Sejranovic');

• Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (Warren CJ and Dodds-Streeton JA) ('Sabanovic');

• Stijepic [2009] VSCA 181 (Ashley JA and Beach AJA);

• Storer v Warambat Pty Ltd [2009] VSCA 210 (Mandie JA and Beach AJA) ('Storer');

• Sabo [2009] VSCA 242 (Neave and Mandie JJA);

• Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 (Ross AJA) ('Kelso').

[7] Dwyer (No 2) [2008] VSCA 260, [24]; Kelso [2010] VSCA 12, [48].

[8] Sumbul [2006] VSCA 292, [13], [26], [33]-[34]; Stijepic [2009] VSCA 181, [48]; Sabo [2009] VSCA 242, [70]; Kelso [2010] VSCA 12, [50]-[55].

[9] Sejranovic [2009] VSCA 108, [171].

[10] Dwyer (No 2) [2008] VSCA 260, [8]; Sejranovic [2009] VSCA 108, [171]; Sabanovic [2009] VSCA 143, [142]-[145].

[11] Dwyer (No 2) [2008] VSCA 260, [8]; Sabanovic [2009] VSCA 143, [145].

[12] Sabanovic [2009] VSCA 143, [142].

[13] Dwyer (No 2) [2008] VSCA 260, [3] (Nettle JA).

[14] Dwyer (No 2) [2008] VSCA 260, [27]; see also Stijepic [2009] VSCA 181, [44].

[15] Stijepic [2009] VSCA 181, [47]; Sabo [2009] VSCA 242, [71].

[16] Dwyer (No 2) [2008] VSCA 260, [25].

[17] Under the Disability Act 2006 (Vic), 'disability' is defined to mean an impairment which reduces a person's capacity for 'self-care, self-management, mobility or communication'.

[18] Stijepic [2009] VSCA 181, [43].

[19] Barry McKinnon v Haden Engineering Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Ross, 14 March 2008) [41].