The Price: A Life Of Agony. The Payout: $422,900

The Sunday Age

Sunday January 27, 2008

Liz Porter

A road accident victim says "pain and suffering" payouts add insult to injury. By Liz Porter

CAN you put a price tag on a lifetime of pain and suffering? A value on the theft of an active, healthy life brimming with expectation and promise, now replaced by one of constant trauma? The Traffic Accident Commission believes it can: $422,900.

That is the TAC's statutory maximum payout for the pain and suffering of victims of serious road accidents.

Left paralysed from the neck down after a car crashed into his motorbike four years ago, 30-year-old Craig McDonald, of Sunbury, had not spent much time contemplating the compensation he might get for the loss of what had the prospect of being a happy, fulfilling future.

Optimistic by nature, he hadn't even dwelt on the fact that the careless driver who struck him only received a $75 traffic infringement notice as a penalty.

But the news, last month, that the TAC had valued his pain and suffering as worth its statutory maximum payout of $422,900 has made him focus on the price allotted to his pain. Such an arbitrary maximum payment for a life ruined by someone else's carelessness is unfair, he says.

He is now calling for a change in the policy that sets a statutory maximum for "pain and suffering".

The figure is calculated separately from settlements covering lost wages and legal costs.

"No one would take $400,000 for pain and suffering, to sit in a wheelchair for the rest of their life," Mr McDonald said. "Even the 18 months I spent in hospital isn't worth $400,000 - let alone all the ongoing pain. It's a piddling amount when you consider the profits that the TAC make - and it's pretty much a battle to get anything out of them."

For more than a year after the accident, Mr McDonald's maimed nervous system became his own private hell. He was tormented by phantom pains, necessitating strong pain-killers that caused nightmares and hallucinations. His body felt alternately boiling hot or freezing cold and he had to learn to breathe without a ventilator - a frightening process that often resulted in him waking in panic.

Mr McDonald's carefree world as an avid sportsman and "troubleshooter" for a large government office was obliterated on March 3, 2004, when a driver leaving a driveway struck the motorcycle he was on.

The only remnant of his old life was his girlfriend, Shannon, who is now his wife.

His new life began with two years in hospital and rehab. He is now housebound, confined to a wheelchair fitted with a remote-control device featuring 200 functions, which he operates with his chin. He requires a 24-hour carer.

Mr McDonald's lawyer, Slater and Gordon's Cath Evans, said the TAC cap on compensation for pain and suffering seemed miserly when the TAC insurance scheme returned a profit of $691 million last year.

John Voyage, of Maurice Blackburn, said that lawyers had lobbied hard to raise the cap more than a decade ago, to no effect, but it was time to renew the campaign.

"The TAC is such a profitable organisation and there are only a handful of people in this man's position. No amount of money is enough, but $422,900 does not seem reasonable."

TAC spokeswoman Lauren Treacy said the commission did not comment on particular cases. But she said that TAC statutory payments were governed by the Transport Accident Act and that seriously injured clients received other benefits, including medical, counselling, attendant care and home modification payments, which were paid for the duration of their life.

Mr McDonald is receiving such payments.

Insult to injury

THE Transport Accident Commission pays lump-sum benefits to accident victims, according to the "percentage" of their impairment - a complicated estimate based on injury and personal circumstances.

A 28% impairment might be loss of the sight of one eye, or the amputation of one leg below the knee: the benefit payable is $28,310.

A 60% impairment might be the loss of one arm: the payment is $81,900.

A 100% impairment would apply to a quadriplegic who needs a ventilator to breathe: the payment is $272,220.

Source: Burt & Davies, personal injury lawyers

© 2008 The Sunday Age

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