Victorian Numbered Acts Victorian Numbered Acts(1) If the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 , made before an application under section 328(2) of this Act is made, of the degree of impairment of the worker as a result of the injury is 30 per cent or more, the injury is deemed to be a serious injury.
(2) If—
(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—
(c) the Authority or self-insurer—
(i) is satisfied that the injury is a serious injury; and
(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(d) a court, other than the Magistrates' Court, gives leave to bring the proceedings on the application of the worker made—
(i) within 30 days after the worker received advice under section 330(1) ; or
(ii) after that period, with the consent of the Authority under section 337(1).
(3) For the purposes of subsection (2), a worker who satisfies subparagraph (i) of section 325(2)(b) but not subparagraph (ii) of that subsection, is entitled to bring proceedings in accordance with subsection (2)(d) of this section for the recovery of damages for pain and suffering only.
(4) A copy of an application under subsection (2) must be served on the Authority or self-insurer and on each person against whom the applicant claims to have a cause of action.
(5) For the purposes of subsection (2)(d)—
(a) a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury; and
(b) for the purposes of proving a loss of earning capacity in accordance with subsection 325(2), a worker bears the onus of proving—
(i) any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment; and
(ii) the extent of that inability.