Court hands terminated injured worker the right to pursue damages

On 23 April 2026, a Victorian court granted a terminated injured worker the right to sue for pain, suffering and lost earnings. 

Qing Bin Kong, a Chinese-born boner at an abattoir in Colac, Victoria, worked for Australian Lamb after arriving on a work visa in 2017. He began experiencing lower back pain from heavy, repetitive pushing, pulling and lifting in 2020 and lodged a WorkCover claim on 21 July 2022. He had also sustained a right foot injury at the same workplace in November 2019, returning to full duties after recovering. 

After his back injury, Kong returned to work on progressively reduced hours, eventually working just nine hours a week on light duties, cleaning and replacing plastic bags in boxes. He applied to the County Court of Victoria under s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for leave to bring a common law damages claim, citing both a physical injury and a psychological injury. His employment was terminated in mid-2025 while those proceedings were already underway. 

Her Honour Judge Clayton handed down her decision on 23 April 2026, granting Kong leave to proceed with claims for pain and suffering and pecuniary loss on the basis of his physical injury. The court was satisfied that the consequences of his physical injury were at least very considerable and that his permanent loss of earning capacity exceeded the required 40 per cent threshold. Although Kong also claimed a psychological injury, the court found it unnecessary to determine that claim given the physical injury succeeded. For completeness, the court noted that the psychiatric injury alone did not meet the higher standard required, that is, consequences "more than serious" to the extent of being "severe." 

The court placed Kong's pre-injury earnings at approximately $102,000 per annum, based on the average of three tax years before the injury. Post-injury tax returns showed $103,086 in 2023, $60,198 in 2024 and $57,869 in 2025, though the court noted it was unclear whether those figures included makeup pay from the insurer, as Kong had not returned to full-time work after the injury. 

The Victorian WorkCover Authority, as defendant, proposed three roles as suitable employment: two picker and packer positions and a locksmith. The court rejected all three. The first, with Meals on Wheels, was primarily a standing job, which Kong could not sustain. The second, packing vitamins and supplements, could be done seated or standing but involved bending, pushing trolleys and regular lifting, and the defendant conceded no such role existed in Colac. The locksmith role paid $52.21 per hour but required a Certificate III in Locksmithing. The court found no evidence Kong had the language proficiency or technical background for the qualification, placing it at "the very outer margins of what could be considered 'suitable employment'." Even if the proposed roles were suitable, the court found Kong would still meet the threshold, as his 15-hour weekly capacity meant he could not earn enough in any of them. 

Kong's credibility was challenged on several grounds. The defendant argued he had downplayed his English skills despite passing an IELTS test in 2016, and had denied taking parental leave when he had in fact taken time off for his children, including approximately six weeks when his daughter was born in September 2022. Judge Clayton accepted neither challenge, drawing a distinction between formal parental leave and care provided on rostered days off during his return to part-time work. Kong's account of his activities and limitations was also corroborated by his wife, whose evidence the defendant did not challenge. Asked whether he picked up his young daughter, Kong told the court: "Basically, I do not. I would sit on the sofa and give her a hug." 

The court also set aside the opinion of the defendant's neurosurgeon, Dr Brazenor, who concluded Kong had no work incapacity at all. The court found that accepting that position would require a finding that Kong was lying, a conclusion unsupported by his conduct and evidence. His maximum work capacity was assessed at no more than 15 hours per week. 

The case draws a line around what constitutes a genuinely suitable employment offer. Physical restrictions are only part of the equation. A worker's language proficiency, educational background and occupational history are all relevant. It also reinforces that terminating an injured employee on light duties does not extinguish the employer's exposure, and that if proceedings are already on foot, the termination itself may feature in that litigation. Employers should also be aware that witness corroboration, including from family members, carries weight: a failure to challenge such evidence will be noted by the court. The adequacy of any vocational assessment may also face close scrutiny in subsequent proceedings.