Consequences significant but not serious03 March 2016
In a serious injury application, a worker's ability to perform full-time work and participate in co-curricular activities often becomes an important consideration. In the County Court decision of Pipe v Victorian WorkCover Authority, it was held that Darren Pipe (the Plaintiff), who was able to work full-time as a security guard and had completed a number of courses following his injury, had not suffered serious injuries.
It is often difficult for a Defendant to resist a finding of serious injury in circumstances where the Plaintiff's work-related injury is not disputed and their credibility is unchallenged. However, this decision shows that a Plaintiff with a demonstrated capacity for alternative employment will have greater difficulty proving serious pain and suffering, as noted in the previous Court of Appeal decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd  VSCA 292. This is not to say that a Plaintiff's ability to engage in significant employment precludes a finding of serious injury.
At the date of his injury, Mr Pipe was employed by Bailey Personnel Pty Ltd, a labour hire company, and was placed with a host employer, Kuehne & Nagel. On 6 April 2011, Mr Pipe's lower back was injured when he was crushed between a truck and a forklift while performing work-related duties.
The Plaintiff began proceedings to recover damages for pain and suffering only. The only injury relied upon by the Plaintiff was an aggravation of pre-existing degenerative changes in the lumbar spine.
Following an initial return to work with the employer post-injury, the Plaintiff ultimately ceased work. However, he subsequently completed two security courses and began working as a full-time security officer at Crown Casino. He later started a counselling course with a view toward seeking employment in that field.
Mr Pipe alleged a number of pain and suffering consequences arising from his back injury, including restricted movement and constant pain in the lower back, disturbed sleep, restriction of recreational and social activities, the loss of his ability to perform his pre-injury employment, and, importantly, the breakdown of his marriage. However, the Plaintiff was no longer receiving active treatment for his injury at the time of hearing. He also gave evidence that he was able to perform some household tasks, socialise with friends and travel.
The Court's decision
His Honour Judge Dean accepted that Mr Pipe continued to suffer symptoms and consequences associated with his compensable back injury. However, His Honour considered the Plaintiff's evidence that he had been able to complete two security courses and start a counselling course, was working full-time as a security officer, was able to socialise and travel, could perform certain domestic tasks, and was no longer receiving physical therapy treatment. His Honour also noted that the breakdown of the Plaintiff's long-standing marriage was a complex matter and was unlikely to be a consequence of his back injury. The Plaintiff himself had conceded under cross-examination that he did not know the reason for the deterioration of his relationship and separation from his wife. As such, while the Plaintiff's pain and suffering consequences could be described as "significant" or "marked", His Honour found that the consequences could not be fairly described as at least "very considerable" and "more than significant or marked". The application was dismissed.