Serious Injury Established Despite Return to Work | Fahey v VWA [2024] VCC 2029
5 min read
24 February 2026
Facts
In Fahey v VWA [2024] VCC 2029, the plaintiff, Mr Fahey, suffered a traumatic right scapular fracture after slipping and falling onto a concrete floor during the course of his employment. The injury resulted in ongoing right shoulder pain, restricted range of motion, and permanent functional limitations.
Following a period of incapacity, Mr Fahey returned to work on modified duties. Although he eventually resumed full-time employment and was later promoted to a team leader position, his employer continued to accommodate permanent restrictions, including limitations on lifting, repetitive activities, and tasks requiring significant overhead use of his right arm.
Mr Fahey continued to experience constant shoulder pain that worsened with activity. While he attempted to manage his symptoms without regular medication, he still required ibuprofen several times per week when his pain became difficult to tolerate.
The injury also had a significant impact on his daily life. Prior to the accident, Mr Fahey was actively involved in gardening, vehicle maintenance, camping, bowling, fishing and household maintenance. Following the injury, many of these activities became difficult or impossible. His partner assumed responsibility for numerous domestic tasks, including gardening and other physically demanding household duties.
Principles Applied by the Court
The application was brought under section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), with the plaintiff seeking leave to pursue common law damages for pain and suffering.
The Court was required to determine whether the plaintiff had sustained a permanent serious impairment or loss of a body function and whether the consequences of that impairment could fairly be described as "more than significant or marked" and "at least very considerable" when compared with other cases in the range of possible impairments.
The Court relied heavily on the medical evidence, including a Medical Panel opinion that diagnosed right shoulder dysfunction and right scapular muscular dysfunction resulting from the traumatic fracture. Medical imaging confirmed a united scapular fracture with displacement and residual structural abnormalities contributing to the plaintiff's ongoing symptoms.
In assessing the seriousness of the injury, the Court referred to authorities including Aburrow v Network Personnel Pty Ltd, Kesper v VWA, Barwon Spinners Pty Ltd v Podolak and Haden Engineering Pty Ltd v McKinnon. These cases emphasise that the assessment is not limited to the existence of pain itself, but extends to the practical consequences of the injury on a plaintiff's physical functioning, work capacity, recreational activities and enjoyment of life.
A significant aspect of the Court's reasoning was the plaintiff's credibility. The Court described Mr Fahey as a stoic and impressive witness who tended to understate rather than exaggerate his symptoms. His evidence regarding his pain, restrictions and loss of function was accepted as truthful and was strongly corroborated by his partner's evidence.
The Court also rejected arguments that the plaintiff's return to full-time employment and subsequent promotion demonstrated that his injury was not serious. Instead, the Court recognised that his ongoing employment was only possible because of permanent workplace modifications and his determination to continue working despite persistent pain and restrictions.
Decision
The Court found that the plaintiff continued to suffer from permanent pain, reduced shoulder function and ongoing physical restrictions that were unlikely to improve.
Although the loss of shoulder movement was relatively modest, the Court accepted that the consequences of the injury were significant. Mr Fahey remained unable to perform a range of pre-injury work tasks, required ongoing workplace accommodations, experienced disrupted sleep, and had lost the ability to participate in many recreational and domestic activities that were previously important parts of his life.
The Court accepted that the plaintiff's ongoing pain, permanent work restrictions, loss of recreational pursuits, reduced capacity for household maintenance and diminished quality of life collectively constituted consequences that were "more than significant or marked" and "at least very considerable" within the meaning of the legislation.
Accordingly, the Court found that Mr Fahey had established a serious injury for pain and suffering purposes and granted leave to bring common law proceedings.
Key Takeaways for Serious Injury Applications
The decision in Fahey v VWA provides important guidance for WorkCover serious injury applications in Victoria.
First, the case confirms that a plaintiff can satisfy the serious injury threshold despite returning to full-time employment. The focus remains on the practical consequences of the injury rather than solely whether the plaintiff has returned to work.
Secondly, the decision highlights the importance of workplace modifications. Where an employer accommodates permanent restrictions, a plaintiff's continued employment does not necessarily indicate that the injury lacks seriousness.
Thirdly, the case reinforces the significance of credibility. The Court gave considerable weight to the fact that Mr Fahey was a stoic witness who continued working despite pain and limitations. A plaintiff who perseveres through injury should not be disadvantaged simply because they have adapted to their circumstances.
Finally, Fahey v VWA demonstrates that a serious injury finding may be made even where objective physical impairment is relatively modest. The Court's assessment focuses on the cumulative impact of the injury on the plaintiff's work capacity, recreational activities, domestic responsibilities and overall quality of life.
For injured workers pursuing a serious injury claim in Victoria, the decision illustrates that the loss of pre-injury function and lifestyle can be just as important as the extent of the underlying physical impairment.
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