By Stuart Eustice, Partner, Zoe Vlahogiannis, Lawyer and Gregor Campbell, Law Graduate

Factual Background:

The plaintiff alleged she suffered a severe neck injury while working as a cleaner at Yarra City Council (Council) in March 2011 (2011 injury).

The plaintiff had a complicated medical history which included a right arm and neck injury sustained during prior employment in the 1990s requiring her to be out of the workforce for many years (previous injury) as well as an injury to her right arm in 2017 (2017 injury) which altered her occupational capacity.

The VWA argued the 2011 injury was a mere aggravation of the previous injury.

Accordingly, the Court had to consider:

(1) Did the plaintiff sustain the 2011 injury at the Council?

The plaintiff’s compelling narrative, fortified by endorsements from treating specialists and a medical panel, meant the Court was satisfied the plaintiff sustained the 2011 injury during her Council employment and it was not an aggravation of her previous injury.

(2) How did the plaintiff’s 2017 injury affect her claim?

Acknowledging the complexity arising from a supervening event — the 2017 injury — the Court held the plaintiff needed to demonstrate ongoing incapacitation from her 2011 injury. Medical opinions and the plaintiff’s consistent pain management affirmed the 2011 injury significantly limited her capacity and the Court held in her favour.

(3) Did the plaintiff have loss of earning capacity?

Despite the 2017 injury, the Court held the 2011 injury with its current impact, rendered the plaintiff unable to work. The plaintiff’s credibility and honesty during testimony were notable aspects, enhancing her claim.

Conclusion

The Court held in favour of the plaintiff, granting her application for loss of earning capacity and pain and suffering certification, affirming her incapacity to work.