In the context of the Victorian transport accident compensation scheme, impairment and disability are two very separate and distinct concepts.

The term “impairment” has a particular meaning in the Victorian transport accident scheme.

Injured transport accident victims may be entitled to receive an “impairment benefit”, which is a no-fault lump sum payment.

The assessment of impairment determines a claimant’s potential eligibility for a lump sum payment. The quantum of an impairment benefit, if any, will be determined by the level of impairment which is not only assessed but also accepted as being an accurate assessment.

The assessment of impairment is undertaken by trained and accredited medical specialists using a publication of the American Medical Association called the Guides to the Evaluation of Permanent Impairment – 4th Edition (“the Guides”).

The Guides contains a number of chapters. Each separate chapter deals with a body system – e.g. the Nervous System, the Respiratory System, the Visual System, the Skin, Orthopaedic, etc.

The Guides allocate percentage scores for particular injuries and conditions. Every individual is assessed in precisely the same manner without regard to their particular or individual circumstances. As such, what the Guides don’t do is assess the impact of particular injuries and conditions on the accident victim themselves. In other words, the Guides quite deliberately exclude any assessment of the disabling effects of injuries and conditions. This is particularly highlighted by the fact that the chapter of the Guides which specifically assesses pain has been excluded from use in the Victorian transport accident scheme.

Understandably, accident victims are focused on how their lives have been changed by the injuries sustained. This often brings into conflict the assessment of impairment and the perception of the individual accident victim. Most accident victims, who are understandably focused on how their injuries have impacted upon their lives, find that the impairment scores allocated to them do not in any way reflect or properly represent the disabilities that they have sustained.

Accident victims need to understand that for the payment of an impairment benefit the disabling effects of an injury or injuries are specifically ignored.

The good news is that for those accident victims who suffered injury as the result of the fault of another person, disability is relevant and plays a role in the assessment of a claimant’s eligibility to bring a common law damages claim.

To bring a common law damages claim an accident victim must have sustained a “serious injury”. By and large, the notion of “serious injury” ignores impairment and focuses on the disabling effects of the injuries sustained – that is, the consequences of the injury for the particular individual.