Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67

by Gabriel Ng

Relevance

Established that, in Serious Injury Applications (a gateway requirement to bring common-law negligence proceedings in Victoria), where two different injuries are present, it is generally necessary to make findings about all the pain and suffering consequences at the date of trial and attribute each consequence to an injury.

Facts

Mr McKenzie sustained an injury to his left hand in 2004 and a separate injury to his left knee in 2008. The left knee injury was the subject of litigation which settled. For the left hand injury, he was awarded a Serious Injury Certificate in the County Court. Peak Engineering and the Victorian Workcover Authority appealed the decision on two grounds: first, that the learned trial Judge erred in failing to identify and exclude the consequences of the left knee injury; and second, that the pain and suffering consequences of the left hand injury did not satisfy the statutory definition of a ‘serious injury’.

Held

Maxwell P, with Redlich JA and Dixon AJA concurring, held at [24] that:

‘… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial.’

Except where the consequences of the injuries are ‘clearly separate and distinct’, it will be necessary to ‘disentangle’ them [25].

His Honour also affirmed his earlier judgment, in which he held that in determining pain and suffering consequences, a relevant consideration was the loss of an occupation from which a plaintiff had, or would have, derived significant enjoyment [44]-[45].

Finally, Maxwell P found that Mr McKenzie’s left hand injury did not meet the statutory test. While it is unclear which of Mr McKenzie’s claimed consequences his Honour accepted, regardless these amounted to only intermittent soreness and aches and use of over-the-counter Panadeine. Mr McKenzie’s other claimed consequences could not be disentangled from the consequences of his left knee injury [46]-[65].