When an injury is not considered a ‘serious injury’

When an injury is not considered a ‘serious injury’

Recently, the Court of Appeal in the matter of TTB SMS Pty Ltd v Scott Lawrence Reading 2020 (Vic) VSCA 203, overturned a County Court’s determination that an injured worker met the definition of ‘serious injury’.

In order to be successful with a common law claim for damages, an injured worker must establish that:

  • they have suffered a ‘serious injury’
  • they have suffered a ‘serious injury’ due to the negligence of their employer.

At first instance, Judge Bourke of the County Court found that an injured worker who suffered an injury to his middle and little fingers of his right hand meet the definition of ‘serious injury’.  On 5 September 2007, the injured worker’s right hand struck a metal plate while he was working as a spray painter which caused a fracture to his little finger and dislocation to his middle finger.

The injured worker underwent a surgical repair to his right little finger.  Post-operatively, the injured worker underwent hand therapy for a period of months and then ceased all medical treatment after he was told that there was nothing further that could be done for him.  Nonetheless, he took over-the-counter pain relief medication once or twice per week to help manage his pain.

Judge Bourke initially accepted that the injured worker satisfied the ‘serious injury’ test on the basis that the injured worker suffered from the following pain and suffering consequences:

  • intermittent pain and cramping in his right hand and mainly in his little fingers
  • numbness, spasms and ‘pins and needles’ in his little fingers
  • general aching in his right hand after overuse
  • permanent curling of the little fingers
  • inability to move the ring finger properly
  • no movement in the right little finger beyond some movement
  • significant clawing and constrictive shortening
  • joint adhesions
  • reduced fine movement and strength in the right hand.

However, the employer challenged and appealed Judge Bourke’s findings on the basis that Her Honour was incorrect in finding that the injured worker met the ‘serious injury’ test.

In the Court of Appeal, Judge Tate and Judge Forrest found that Judge Bourke’s determination must be set aside on the basis that the injured worker’s pain and suffering consequences could not be described as ‘at least very considerable’.

This conclusion was reached, amongst other things, on the basis on the following reasons:

  • the injured worker returned to work after four days of his injury and the injured worker did not miss work as a consequence of his hand injury since this time
  • the injured worker does not suffer from residual symptoms in his middle finger and no pain while resting
  • the injured worker has not required any treatment since 2007
  • the injury has had only a mild impact on the injured worker’s recreational activities
  • the injured worker retains full capacity to care for himself and lives independently
  • the injured worker’s sleep, mood and cognitive abilities have not been affected.

Should you wish to speak to a lawyer regarding whether you have suffered a ‘serious injury’ for the purposes of proceeding with a common law claim, please contact our office on (03) 9321 9988.

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