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4 - Meaning of serious injury

  1. Part 7 of the WIRCA (and section 134AB of the ACA) and Part 6 of the TAA draw important distinctions which must be appreciated to correctly apply the Acts.
  2. As explained in Chapter 11, Part 7 of the WIRCA applies to injuries in the course of employment on or after 1 July 2014, while s 134AB of the ACA applies to injuries between 20 October 1999 and before 1 July 2014.
  3. The Acts use the term "an injury" to refer compendiously to the injuries sustained by the plaintiff in the relevant incident (Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179).
  4. When applied to physical injuries, the term refers to the physiological changes to the body, rather than the consequences of the injury in terms of any impairment (Barwon Spinners v Podolak (2005) 14 VR 622, [10]; [2005] VSCA 33).
  5. In contrast, a "serious injury" is defined by reference to the consequences of an injury (Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, 246 [59]; [2012] VSCA 179). These consequences are identified in WIRCA s 325 (and ACA s 134AB(37)) as:
    1. permanent serious impairment or loss of a body function; or
    2. permanent serious disfigurement; or
    3. permanent severe mental or permanent severe behavioural disturbance or disorder; or
    4. loss of a foetus.
  6. The TAA s 93(17) contains a very similar definition, stating that 'serious injury' means:
    1. serious long-term impairment or loss of a body function; or
    2. permanent serious disfigurement; or
    3. severe long-term mental or severe long-term behavioural disturbance or disorder; or
    4. loss of a foetus.
  7. For workplace injuries and transport injuries, the seriousness of an injury is to be judged by reference to a two-stage process:
    1. an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, “serious” or, in the case of mental or behavioural disturbance or disorder, “severe“; and
    2. a determination of whether the injury as thus assessed is objectively “serious” or, in the case of mental or behavioural disturbance or disorder, “severe” when compared with the range or “spectrum” of comparable cases (TAC v Katanas [2017] HCA 32, [6]. See also WIRCA s 325; ACA s 134AB(38); Humphries v Poljak [1992] 2 VR 129, [40]; [1992] VicRp 58; Ninkovic v Pajvancek [1991] 2 VR 427; [1991] VicRp 81; Samaras v TAC [2019] VSCA 255, [108]-[111]).
  8. For workplace injuries, the court must separately assess the:
  9. In contrast, for transport injuries, the seriousness of an injury is to be judged by reference to the consequences relating to both pecuniary disadvantage and/or pain and suffering (Humphries v Poljak [1992] 2 VR 129, [40]; [1992] VicRp 58). That is, under the TAA, both the pecuniary disadvantage and pain and suffering consequences are to be assessed cumulatively.
  10. In addition to the above definition of a serious injury, the WIRCA contains a 'narrative test' which requires that the injury, in comparison with other cases, is "more than significant or marked, and as being at least very considerable" in the case of paragraphs (a) and (b) or "more than serious to the extent of being severe" in paragraph (c).
  11. Under the TAA, in the case of paragraphs (a) and (b), the injury must be, in comparison with other cases, 'fairly described as "very considerable" and certainly more than "significant" or "marked"' (Humphries v Poljak [1992] 2 VR 129, [40]; [1992] VicRp 58). In the case of paragraph (c), the word ‘serious’ and ‘severe’ are not to be equated and the word ‘severe’ is of stronger force than the word ‘serious’ (Mobilio v Balliotis [1998] 3 VR 833).
  12. Courts dealing with a serious injury application for pain and suffering damages under the WIRCA or ACA must therefore address the following three questions in order:
    1. what is the injury and what is the impairment produced in consequence?
    2. is the impairment permanent?
    3. are the consequences for the plaintiff such as to satisfy the relevant narrative test? (Barwon Spinners v Podolak (2005) 14 VR 622, [33]; [2005] VSCA 33).
  13. The court will only grant a certificate if it is satisfied that the answer to questions b) and c) is "yes" (Barwon Spinners v Podolak (2005) 14 VR 622, [33]; [2005] VSCA 33).
  14. The WIRCA and the ACA contain a fourth requirement where the application includes a claim for loss of earning capacity damages. In such cases, the applicant must also establish a 40% loss of earning capacity. See 4.3.2 – Loss of earning capacity.
  15. In decisions under the TAA, the questions become:
    1. what is the injury and what is the impairment said to be produced in consequence?
    2. is the impairment long term?
    3. is the injury a "serious injury"?
  16. Failing to consider properly the injury and impairment will deprive the court of the ability to assess accurately the consequences of the impairment (see Fokas v Staff Australia Pty Ltd [2013] VSCA 230).

Last updated: 4 February 2020

In This Chapter

4.1 - What is the injury and what is the impairment?

4.2 - Is the injury permanent or long term?

4.3 - Is the injury a serious injury?