Director falls into hole  – left permanently injured

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Director falls into hole – left permanently injured

An employee has been given leave to pursue damages for economic loss and pain and suffering after he was injured falling into a hole at a construction site.

An employee has been given leave to pursue damages for economic loss and pain and suffering after he was injured falling into a hole at a construction site.

Leg fractures resulted in chronic pain


The director of a construction company had worked with concreting and related tasks for about 36 years and was employed by the company as an operations manager.

On 24 February 2014, he was pouring concrete at a site when he fell into an uncovered foundation pier hole. Fractures to his left ankle and tibia were surgically repaired and he needed bed rest for about eight weeks. He then had physiotherapy for several months but was left with chronic pain and in need of prescription medication. He was unable to return to his pre-injury work.

The director applied to the County Court of Victoria for leave to commence proceedings for damages in respect of economic loss and pain and suffering against his employer according to s134AB(16) of the Accident Compensation Act 1985 (Vic).

Evidence supported permanent injury claim


Medical reports confirmed that the director’s functional tolerances included a sitting and driving tolerance of 1-2 hours and a walking and static standing tolerance of 15 minutes. He had limited education, literacy, numeracy and computer skills.

With those limitations, he had no residual capacity for full-time employment, though some evidence suggested he may still have capacity for limited part-time sedentary duties. His injury could properly be described as permanent. 

Judge Dean noted that there was no evidence that potentially suitable jobs were available in the director’s area that could give him an income of more than 60% of his pre-injury earnings. He was therefore granted leave to commence proceedings to claim damages for the consequences of pain and suffering and loss of earning capacity.

Read the judgment


Hamilton v Victorian WorkCover Authority [2018] VCC 1878 (20 November 2018)
 
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