---
title: "Apply the Victorian serious-injury gateway before a work damages claim"
url: "https://ailawframework.com/practice/personal-injury-and-compensation/work-out-the-common-law-gateway-for-a-work-injury-damages-claim/victoria"
type: "task_jurisdiction_version"
site: "AI Law Framework"
id: "A21-WD20261023-1-VIC"
practice_area: "Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)"
tier: "yellow"
lawyer_review: "required"
jurisdictions: ["VIC"]
last_reviewed: "2026-10-25"
---

# Apply the Victorian serious-injury gateway before a work damages claim

> In the firm-controlled tool, set out the serious-injury paths in sections 325 and 335 against the assessment date, the application date and the earnings the lawyer has accepted, and list the facts still missing.…

Canonical page: https://ailawframework.com/practice/personal-injury-and-compensation/work-out-the-common-law-gateway-for-a-work-injury-damages-claim/victoria  
Last reviewed: 2026-10-25

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)](https://ailawframework.com/practice/personal-injury-and-compensation.md) |
| Human involvement | Yellow: Lawyer and AI draft together |
| How AI is used | In the firm-controlled tool, set out the serious-injury paths in sections 325 and 335 against the assessment date, the application date and the earnings the lawyer has accepted, and list the facts still missing. Do not decide that the gateway is met. |
| What the lawyer must review | Decide whether the deemed path, a certificate or court leave applies. Check the percentage, its date and the earnings against the reports. For earning capacity, check section 325(2)(e) and section 325(2)(g). Keep medical and wage records in the firm-controlled tool. ASCR r 9 and APP 11 apply. |
| Written for | Victoria |
| Applies to | [Work out the common law gateway for a work injury damages claim](https://ailawframework.com/practice/personal-injury-and-compensation/work-out-the-common-law-gateway-for-a-work-injury-damages-claim.md) |

## Checking plan

**Verify against sources**

Match a 30 per cent assessment to a date before the section 328(2) application before treating the injury as deemed serious.

- What the AI does: In the firm-controlled tool, set out the serious-injury paths in sections 325 and 335 against the assessment date, the application date and the earnings the lawyer has accepted, and list the facts still missing. Do not decide that the gateway is met.
- What the lawyer does: The lawyer decides which serious-injury path applies and whether the earning-capacity test is met.
- Who reviews: Lawyer competent in this practice area
- Basis: Checked against the linked sources on 23 October 2026. Confirm the current instrument before reliance.

## Checks the lawyer makes

1. Match a 30 per cent assessment to a date before the section 328(2) application before treating the injury as deemed serious.
2. If the assessment is under 30 per cent, or the worker uses section 328(2)(b), identify the certificate path and the leave path separately.
3. For an earning-capacity certificate or leave, check both 40 per cent limbs in section 325(2)(e) and the 60 per cent test in section 325(2)(g).
4. Use section 335(3) only for pain and suffering damages, and only with leave under section 335(2)(d).

## Notes

- Section 335(1) deems the injury a serious injury if an assessment under Division 4 of Part 5, or under section 104B of the Accident Compensation Act 1985, made before the section 328(2) application, is 30 per cent or more. If the assessment is under 30 per cent, or the worker applies under section 328(2)(b), proceedings need a written certificate from the Authority or self-insurer, or leave from a court other than the Magistrates' Court. Leave is sought within 30 days after advice under section 330(1), or later with the Authority's consent under section 337(1). The court gives leave only if satisfied on the balance of probabilities. Section 325(2)(e) requires a loss of earning capacity of 40 per cent or more at the decision or hearing, measured as paragraph (f) states, and a permanent continuation of a loss productive of financial loss of 40 per cent or more. Section 325(2)(g) says that consequence is not established if capacity would result in earning more than 60 per cent of gross income from personal exertion. Section 335(3) allows pain and suffering damages only, and only with leave under section 335(2)(d), where section 325(2)(b)(i) is met and section 325(2)(b)(ii) is not. A section 328(2)(b) application is available only after at least 18 months have elapsed since the event or circumstance giving rise to the injury. If an impairment-compensation claim was made, section 328(3) requires the degree to be determined and accepted, and the entitlement accepted, before the section 328(2) application. The current dollar amounts in section 340 were not extracted. Section 325(2)(k) says those amounts are disregarded when deciding serious injury.
- If this work is filed, read Supreme Court of Victoria Practice Note SC GEN 25, issued and commencing on 14 May 2026. The County Court of Victoria has issued a practice note for court users on artificial intelligence. The news page opened does not state its number or its commencement date.
- Keep health and wage records in a firm-controlled tool. ASCR r 9 and APP 11 apply. A breach may be notifiable under the Privacy Act 1988 (Cth).

## Practical guide

Jurisdiction: Victoria: a serious-injury application to the Authority or a self-insurer, and leave in a court other than the Magistrates' Court

**Deliverable**: A table of the Victorian serious-injury path that applies, and the facts still missing.

**Inputs**

- Impairment assessment and its date
- Section 328 application date
- Earnings the lawyer accepts
- Any section 330 advice

**Example**: Illustrative example: The assessment is 32 per cent but it is dated after the application. The tool does not mark the injury as deemed serious. The lawyer decides whether a certificate or leave is the path.

**Stop and escalate when**

- The assessment date is missing and the tool has treated 30 per cent as enough.
- The records are available only in a public tool.

Checked 2026-10-23.

## Sources

- [Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 335](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/wiraca2013484/s335.html) (checked 2026-10-23)
- [Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 325](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/wiraca2013484/s325.html) (checked 2026-10-23)
- [Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 328](https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/wiraca2013484/s328.html) (checked 2026-10-23)
- [Supreme Court of Victoria: Practice Note SC GEN 25](https://www.supremecourt.vic.gov.au/areas/legal-resources/practice-notes/sc-gen-25-the-use-of-artificial-intelligence-by-court-users) (checked 2026-10-23)

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*