Under s 135AC(b) of the Accident Compensation Act 1985, a trial judge must undertake a two-step process: first, identify what the worker knew about the consequences of injury at the relevant time; second, determine objectively whether those known facts constitute knowledge of serious injury incapacity. Knowledge of pain and suffering consequences alone may be sufficient to preclude reliance on s 135AC(b), even if the worker was unaware of pecuniary disadvantage. The worker's subjective characterisation of the injury as 'serious' or 'not serious' is irrelevant; the test is whether the known facts, viewed objectively, constitute serious injury incapacity.
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