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Perspective

Victorian workers can seek damages for secondary psychological injuries

A worker seeking to claim damages for a serious injury cannot rely on the psychological consequences of that injury unless the serious injury is a permanent severe mental or behavioural disturbance or disorder. A permanent mental or behavioural disturbance or disorder is classified as severe if a consequence of it is more than serious pain and suffering (which includes loss of amenities of life or loss of enjoyment of life) or loss of earning capacity of 40% or more.

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In Victoria, workers can seek damages for economic loss and pain and suffering for a “serious injury”.

Under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) a serious injury is defined as one of the following:

  1. Permanent serious impairment or loss of a body function
  2. Permanent serious disfigurement
  3. Permanent severe mental or behavioural disturbance or disorder
  4. Loss of a foetus

Damages are capped at $1,404,380 for economic loss and $623,950 for pain and suffering.

Common law damages payable to injured workers across other states in Australia are tabled below:

State Common law damages available for injury
New South Wales Workers with 15% impairment or more caused by employer’s negligence can seek uncapped Work Injury Damages to cover their past and future economic loss of earnings
Queensland Injured workers can seek damages for loss of earnings (capped at $4,583.40 per week) and pain and suffering (capped at $366,300)
Western Australia Workers can seek damages for economic and non-economic loss capped at $479,488 unless they have an impairment of 25% or more in which case it is uncapped
South Australia Workers with 30% impairment can seek uncapped damages for economic loss. Damages can be awarded for psychiatric injuries so long as it was primarily caused by the negligence of the employer and the employer is not liable to an award of damages in respect of consequential mental harm.
Tasmania Workers with 20% impairment (including loss of foetus if carried for at least 16 weeks) can seek uncapped damages for economic and non-economic loss

In the case of Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304 an OHS representative has been granted leave to commence proceedings against his employer for pain and suffering damages, after sustaining a serious lower back injury at work.

A medical panel found that although his back injury had resolved and he had the capacity for full-time employment, his back injury materially contributed to his subsequent chronic major depressive disorder and other psychological issues which were likely to persist in the foreseeable future.

The County Court dismissed the OHS representative’s claim earlier this year after it (incorrectly) found he deliberately gave false evidence about the extent of the treatment he received and rejected his evidence of suicidal ideations, night terrors and sleep disturbance when considering the severity of the psychological consequences of his injury.

The Supreme Court has since set aside this decision and remitted the proceeding to the County Court to be reheard by another judge.

Lessons for employers

  1. The obligation to disentangle the physical and psychological consequences of an injury is confined to claims for permanent serious impairment or loss of a body function.
  2. A permanent mental or behavioural disturbance or disorder does not require intensive treatment to be classified as severe. In this case, the OHS representative received treatment on 12 occasions in the 21 months following his injury. There were 9 months during which he received no treatment. The Supreme Court of Appeal found that while this was not intensive, it was more than minimal.
  3. Slight inconsistencies in a worker’s account of their medical history and psychological consequences are to be expected and is not fatal to their claim.

Written by Nes Demir

Have a question or need advice?

Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Kim McLagan.

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