"I am so tired I can't concentrate" "I am irritable all the time because I wake several times at night because of my injury". These are common complaints
I hear from clients who have serious injuries. Sleeplessness caused by injuries is a relevant factor to consider when assessing whether an injury
passes the serious injury test in work injury and transport accident cases in Victoria.
In order to sue and recover damages in both work injury and transport accident cases you need to prove both negligence and that you have a serious injury.
The first step in these cases is to make an application to either the TAC, WorkSafe or the Self Insurer for a Serious Injury Certificate. If you are
not granted a Serious Injury Certificate you can make an application to the County Court of Victoria and ask the Court to decide whether you have a
serious injury. A serious injury can be a permanent serious impairment or loss of body function that has a very considerable effect on a person's life.
In a recent case involving a 65 year old truck driver, County Court Judge Bourke considered whether a full thickness tear in a man's left shoulder was a serious injury. When the Judge looked at at whether this injury was a serious injury, she looked in detail at the effect this injury had on the truck driver's life, including, among other things, that his shoulder was stiff and painful, that he could not do heavy or repetitive work, that he was restricted in his ability to play with his grandchildren and that his main hobby of motor bike riding had been significantly affected. One of the factors she considered relevant was the fact that the truck driver had difficulty sleeping because of his injury and often woke 3- 4 times a night. She referred to a past serious injury decision of the Court of Appeal in which Maxwell P said "it is my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy an uninterrupted sleep." and further, "multiple painful awakenings in the course of a single night.....is properly to be regarded as constituting a very considerable diminution in the Plaintiff's enjoyment of life."
If your work or transport accident injury is disrupting your sleep and you would like advice about whether you have a serious injury, contact Penny on 97751371 to discuss your possible entitlements further. Remember, there is a six year time limit in work injury and transport accident cases, so it is important to get legal advice as soon after you are injured as you can.
The cases referred to above include the decision of Judge Bourke in Egan v Amezdroz &Sons Pty Ltd  VCC 1440 and the decision of Maxwell P in
Hayden Engineering Pty Ltd V McKinnon (2010) 31 VR 1.