When a worker is of mature years, a damages claim for work injuries can present particular challenges
Ms Schofield was aged in her mid-fifties. She suffered a right knee injury while employed by a butcher. At the time of her accident she was receiving average weekly earnings of around $375.00.
She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury. The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …
It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss. The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.
Judge Dyer noted that
Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.
She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.
His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely. She was granted leave to sue for damages.
Schofield v Country West Gourmet Meat & Chicken Pty Ltd  VCC 614