Adviceline Injury Lawyers client Garth Kinder, a fitter and turner with a long-term lower back injury, has won leave to claim damages for that injury.
His Honour Judge Misso of the County Court granted Mr Kinder leave to claim both heads of damages: for pain and suffering and for loss of earning capacity.
Mr Kinder had worked as a Fitter and Turner since approximately 1963. He had experienced some back pain for decades, and also suffered from sciatic pain, referred into his leg from the injury to the spine. He has been unable to work due to his back pain since 2007.
The WorkCover Authority admitted that Mr Kinder suffered an injury at work in 2001 when he simply twisted around to face someone while working seated. He then suffered flare-ups of pain at work in 2002, 2003 and 2005.
Mr Kinder returned to work after each aggravation of his injury, even finding new employment when his employer ceased trading, until 2007 when he was unable to continue due to his pain. The Judge was in no doubt whatsoever that Mr Kinder endeavoured to maintain his employment as best he was able to.
Lawyers for the WorkCover Authority defended the claim, trying to show that Mr Kinder suffered from other conditions or injuries that were unrelated to work. His Honour dismissed these arguments and found that Mr Kinder's other health troubles were not as significant as his back injury, and that it is his back injury that prevents him from working.
His Honour Judge Misso found that Mr Kinder's back injury has caused his loss of earning capacity. His Honour said that this finding gives an injured worker an automatic right to also claim damages for pain and suffering. Now, having met the'serious injury' threshold under the law, Mr Kinder can bring a claim to recover damages for negligence.