Victorian WorkCover Authority v Brassington

In the case of Victorian WorkCover Authority v Brassington, the Victorian Court of Appeal considered the aggregation of injuries for the purposes of determining whether a serious injury had been sustained under the Workplace Injury Rehabilitation and Compensation Act 2013. The plaintiff, who was a prison officer, suffered injuries to his right knee and ankle in a single incident. The Court of Appeal examined whether these injuries could be aggregated to determine if there was a permanent serious impairment of the right lower limb, which would entitle the plaintiff to common law damages for pain and suffering. The Court of Appeal found that the plaintiff's injuries did not aggregate to cause a serious impairment of the right lower limb.

The key legal issues the court had to decide were whether the plaintiff's injuries to his right knee and ankle could be aggregated for the purposes of determining a serious injury under the Act, and if the plaintiff was entitled to common law damages for pain and suffering. The Court of Appeal reviewed previous cases such as Lu v Mediterranean Shoes Pty Ltd, Georgopoulos v Silaforts Pty Ltd, Transport Accident Commission v Zepic, and Lexa v Transport Accident Commission to determine the correct approach to aggregation of injuries. The Court concluded that while each injury was serious in itself, they did not aggregate to cause a serious impairment of the right lower limb. The Court emphasised that to aggregate injuries, there must be a serious impairment or loss of a specific body function, and not merely impairments of separate body functions.

The Court of Appeal held that the plaintiff's injuries did not meet the threshold for a serious impairment of the right lower limb, and therefore, the plaintiff was not entitled to common law damages for pain and suffering. The Court noted that while the injuries were serious individually, they did not combine to cause a serious impairment of a specific body function. The Court found that the plaintiff could still claim common law damages for pain and suffering in relation to each individual injury but not for the aggregation of the injuries. The Court of Appeal ultimately dismissed the appeal but allowed leave to appeal, finding the appeal to be sufficiently arguable.

In conclusion, the Victorian Court of Appeal held that the plaintiff's injuries to the right knee and ankle could not be aggregated to determine a serious impairment of the right lower limb. The Court emphasised that aggregation requires a serious impairment or loss of a specific body function, not merely impairments of separate body functions. As a result, the plaintiff was not entitled to common law damages for pain and suffering for the aggregated injuries but could claim such damages for each individual injury. The appeal was dismissed, but leave to appeal was granted.