The well-known legal writer, Harold Luntz, wrote in 2019 that it is well established law that “where any legal wrong is to be compensated by damages, the aim of the court is to award such sum of money which will as nearly as possible put the person who has been injured, or otherwise suffered a loss, in the same position as he or she would have been in if the wrong had not been sustained”.

Obviously, the payment of a sum of money can, in some circumstances, fulfil that goal easily if the wrong or loss suffered involved the destruction of a particular item, damage to property or something similar. However, it is also very clear that it is much more difficult to decide what sum of money might compensate an injured person for pain.

It is a common experience that similar events can cause quite different levels of pain and suffering in different people, depending on their vulnerability, any pre‑existing condition, and the impact upon their life. The common law, also known as law determined by the courts, compared to law determined by the government, has grappled for a long time with the best way to provide compensation. The common law in Australia, which arose out of the English law, generally recognised and paid compensation for what were known as pain and suffering and loss of amenity. A loss of amenity arises where injuries deprive a person of their capacity to do things which, before the injury, they were able to enjoy. For example, a person who is rendered blind would lose the ability to carry out activities associated with sight, such as reading or painting, at least to some degree.

Often the experience of pain and the suffering it caused, has been dealt with in the same assessment considering any loss of amenity, which is designed to compensate for the inability of a person to do the things they would normally do arising from the pain and suffering caused.

Traditionally, the law has recognised that “pain” means the physical hurt or discomfort attributable to the injury itself or what arises from it. “Suffering” on the other hand denotes the psychological or emotional distress which an injured person may feel as a consequence of the injury, for example anxiety, worry, fear, torment or embarrassment.

The amount of pain and suffering is by its nature subjective, in the sense that it depends on the injured person’s awareness of it and being able to prove that satisfactorily. In that sense, a person rendered unconscious may not experience any pain or suffering.

The advantage of a common law system is that it enables a court to look at all of the evidence, including the subjective evidence provided by the injured person, and to award a sum of money by way of compensation for the pain, suffering and loss of amenity. It is my experience that the best way of demonstrating those matters to a court is to arrange for the injured person to keep a diary or record of the things that aggravate pain or result from the pain, and activities which were either impossible to do or limited. I always say that the more detail that is provided will allow a court to have a greater insight into the extent of the pain, suffering and loss.

In conclusion, the common law system is almost certainly the fairest way of the legal system responding to the concept of pain, though it must be conceded that there is great inconsistency in the awards of compensation made. However, the alternative statutory systems, such as those recently introduced in the ACT for motor vehicle accident claims, which rely on arbitrary scales, and which do not recognise in any real way the concept of pain and its contribution to the loss of enjoyment of life by those injured, are no alternative at all.

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