Serious injury: more than significant or marked and as being at least very considerable

reversed

Further to yesterday’s article about the common law damages claim process, including the definition and inevitable difficulties in meeting “serious injury” test by means of a qualitative test in court (as opposed to being deemed seriously injured by means of the quantitative test involving a permanent impairment rating of 30% or more in Victoria & NSW), the following legal case highlights the difficulties in having your injury(ies) and their consequences considered “as being more than significant or marked and as being at least very considerable.”

In Halpin v Wilson Transformer Company Pty Ltd [2012], the Court of Appeal overturned a decision not to grant leave to an injured worker to bring common law proceedings for pain and suffering.

Serious injury: more than significant or marked and as being at least very considerable

For an injury to be considered serious by a court, the consequences to the injured worker must be fairly described as being more than significant or marked, and as being at least very considerable.

Background of the case

The case involved a 74 year old woman who sustained a rotator cuff injury to her right shoulder in February 2009 when she tripped and fell over.  She had minimal time off work and continued to remain employed.

At first instance, the Judge (Kings) accepted the worker’s life and daily activities had been affected by her injury, however, she was not satisfied the consequences could be considered “as being more than significant or marked and as being at least very considerable.”

The judge relied on evidence the worker could use her arm in a normal fashion, the worker continues to work, has retained the ability to engage in moderate physical activities such as swimming and playing tennis with her granddaughter, the worker drives a car and the worker travels overseas to conclude the worker led a relatively active lifestyle for a woman of her years.

Appeal

Justice Osborn, who gave the lead judgment in the Appeal, came to a different conclusion on the evidence. In particular, he found the evidence did not support the conclusion the worker had retained the ability to engage in moderate activities.  The Court of Appeal noted the following factors when coming to its conclusion:

a) the extent to which the appellant has retained substantially normal function of her arm;
b) the continuing capacity of the appellant to work;
c) the ongoing nature and extent of the pain suffered by the appellant; and
d) the consequent limitations on the appellant’s enjoyment of life.

Justice Osborn placed emphasis on the latter 2 criteria, finding as the injured worker was accepted as a witness of credit and stoical, her evidence was to be accepted she has continued to suffer pain over 3 years, has not responded to conservative treatment and is now required to undergo surgery, she requires constant and daily medications and she cannot engage in many activities, both domestically and recreationally as it aggravates her pain including not being able to walk her dog, swim, play tennis with her grandchildren, reach overhead or undo her bra.

Justice Osborn specifically noted the injured worker should not be “punished for her continuing application to work and stoical attitude in the face of pain.”

The Court of Appeal’s analysis affirms the criteria was set out in the case of Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 in which President Maxwell stated regard must be had to the worker’s experience of pain and the disabling effect of pain on the worker.

In determining an injured worker’s experience of pain, the focus is on what the worker says about the pain, what they do about the pain, what doctors say about the extent and intensity of the pain and any objective evidence about the disabling effect of the pain.

The disabling effect of the pain requires a determination of the extent to which pain interferes with ordinary activities of life including sleep, mobility, cognitive function, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sexual life, enjoyment of life and capacity for work.

Commentary

This case highlights the difficulties faced when defending pain and suffering cases where the injured worker is accepted as a credible witness as it is often difficult to determine which factors a court is going to place greater emphasis on when making a determination on the serious injury issue and to disprove the injured worker’s complaints of pain and alleged consequences.

Increasingly, the courts are making it clear a return to work or a retained capacity to work (even if in pre-injury or close to pre-injury duties) will not disentitle an injured worker to a grant for pain and suffering.

If an injured worker has returned to employment, it will be necessary to clearly detail the duties they can continue to perform and those they can’t.

A focus will also need to be on those activities the worker can continue to perform; domestically, socially and recreationally, with evidence to support those assertions.

 

Revised May 2014



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