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The injured Victorian worker won the right to sue for damages for a workplace neck injury
n the 2024 decision of Kesper, the Victorian Court of Appeal (the Court) granted leave to an injured worker to bring a WorkCover damages claim for serious injury. He sought a lump sum payment for a neck injury.
About the Kesper decision
In Kesper, the Court found that a worker’s neck injury was a “serious injury” within the meaning of the WorkCover legislation. It also found that he should be given leave to bring a damages claim for his injury.
The Court made this decision despite the worker returning to his pre-injury work and then suffering another significant injury to his back that stopped him from working.
What does Kesper say about common law damages?
The Kesper decision is important because the injured worker was given leave (permission) to sue for common law damages for his injury under Victorian WorkCover laws.
Common law damages are a lump sum payment paid by the at-fault party. Common law damages are designed to compensate an injured worker for the damage they have suffered due to the injury.
Victorian WorkCover laws govern the Victorian WorkCover scheme.
The WorkCover scheme allows seriously injured workers to claim common law damages for pain and suffering and loss of earnings.
The injured worker must meet the definitions of serious injury outlined in the legislation.
What are the different types of damages?
Pain and suffering damages are paid as a lump sum. They are designed to compensate a worker for the pain and suffering and loss of enjoyment of life because of an injury.
Loss of earnings damages are designed to compensate an injured worker for an injury’s impact on their ability to work and generate an income.
Why is the Kesper decision important?
The Kesper decision underlines the importance of getting legal advice if you are injured at work in Victoria.
If your injury can be categorised as a serious injury, you may be able to sue for common law damages. This would be in addition to any statutory entitlements under the Victorian WorkCover scheme.
The final word
If you have suffered an injury at work or have a WorkCover claim, contact us. If you are eligible, we can help you with a common law damages claim, but getting expert advice as soon as possible is crucial.
This article is not intended to be legal advice. Contact a lawyer for legal advice if you have been injured. Victorian WorkCover claims can be complex, and strict time limits apply when making WorkCover claims and claims for damages under WorkCover laws.
Contact us today to learn more about WorkCover damages for serious injury.
Kesper v Victorian WorkCover Authority [2024] VSCA 237
Article written by Toby Robinson.
