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
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
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
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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