Establishing Serious Injury in the Presence of Non-Organic
In September 2008, the Court of Appeal handed down its decision
in Jayatilake v Toyota Motor Corporation Australia Ltd  VSCA
At first instance, the worker in this case failed in his serious
injury application, primarily on the grounds he had not proven that
the claimed physical injury was sufficient to account for his
overall presentation and did therefore did not satisfy the
"serious injury" test. "Disentanglement",
namely the stripping away of psychological consequences from a
claimed physical injury was the determining factor at the serious
The Court of Appeal, in particular Ashley JA, considered how it
was that a physical injury was analysed in the context of a serious
injury application and how the issue of the presence of non-organic
factors impacted on this analysis and the ultimate fate of a
serious injury application.
In essence, this case determined:
When "disentanglement" is an issue, the Court can
(and must) still analyse and determine the nature and extent of the
initial physical injury.
Where there is a conflict of medical evidence in terms of the
exact diagnosis of the initial physical injury (ie soft tissue
injury v's discal injury), the nature of the physical injury
can be determined by a detailed examination of the injured
worker's initial presentation in terms of symptoms complained
of and objective clinical findings on examination.
n the context of a low back injury, Ashley JA noted the
following possible "classifications" - a simple
musculo-ligamentous strain, an aggravation of degenerate changes or
a discal injury.
Once the initial physical injury has been
"classified", the consequences of that injury are to be
assessed from a "serious injury" perspective, even if
there are uniformly noted non-organic features or reactions such
that doctors are not able to fully account for the worker's
presentation in physical terms. That is to say, the presence of
functional reaction does not mean the analysis of the nature of the
physical injury is not undertaken. The initial physical injury must
be determined and its consequences assessed, as to whether,
irrespective of the non-organic reaction, the physical consequences
of the injury can of themselves be described as "more than
This decision shows:
The presence of non-organic reaction is not of itself a defence
to a serious injury application made under subsection (a). The
Court itself, can classify the nature of the initial injury and
determine whether the effects of the injury satisfy the serious
injury test, regardless of functional reaction. The Court will not
simply accept the medical opinions proffered by medical witnesses.
The Court will may have regard to the medical opinions expressed
and conclusions drawn by medical witnesses, but it will also pay
close regard to:
The worker's initial presentation on injury and the
objective clinical findings made by the initial examining
Detailed examination of radiological investigations
A critical review of all of the evidence - with the
worker's post injury progress and their participation in return
to work and rehabilitation efforts being noted as "useful
markers", when settling on a diagnosis and classification of
What surveillance of the injured worker shows when analysed in
When it comes to the issue of diagnosis or classification of the
type of injury little regard may be given to a medical opinion
sought years after the original injury, where scant consideration
is given by the examining doctor to the nature of the worker's
initial presentation symptoms and noted objective clinical
Of course it follows from the above that the clinical records of
the immediate treating doctor(s) may be critical to the
classification of the injury. Access to those records will be of
paramount importance for the Defendant when there is a conflict on
the medical evidence on the issue of diagnosis or
The case also highlights the importance of examining the body of
medical reports rather than the conclusion; what was recorded on
examination assumed more significance than the conclusion
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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