Work Injury Damages

An injured worker may be entitled to bring a Work Injury Damages claim against their employer. Such claims arise in circumstances where the worker can establish, on the balance of probabilities, that their employer breached its duty of care to the worker, causing injury, loss and damage. These cases involve acts and/or omissions by the employer which results in an unsafe work environment, and/or an unsafe system of work.

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In certain circumstances, an injured worker may sue for common law damages, known as a “Work Injury Damages” claim in addition to the statutory payments available under the Workers Compensation Act 1987 and the Workers Injury Management and Workers Compensation Act 1998.

What are Work Injury Damages?

In short, if your employer (through its actions or inaction) has caused, or contributed to, your work injury, then it may be held liable to pay you work injury damages.

Negligence on the part of the employer may include, but is not limited to, the following:

Injuries caused by a co-worker;
an unsafe system of work;
an unsafe workplace / work environment; or
due to faulty machinery.

If you suspect that your employer’s negligence caused your work injury, we recommend that you speak to one of our expert personal injury lawyers as soon as possible.

I am on workers compensation benefits. Can I make a claim for Work Injury Damages?

A Work Injury Damages claim can be made by an injured worker, in the following circumstances:

where there are reasonable prospects in establishing at law that the work injury was the result of the employer’s negligence;
Where the injured worker has suffered at least 15% permanent impairment (assessed by a medical assessor with qualifications, training and experience relevant to the body system being assessed), and this assessment has been accepted by the insurer, or determined by the Personal Injury Commission (PIC); and
You have lodged your claim for statutory lump sum entitlements for permanent impairment (see section 66 of the Workers Compensation Act 1987 (NSW)).

NB: this step must take place before a work injury damages claim can be resolved by settlement or verdict.

What about my legal costs?

As accidents leave injured workers in precarious financial situations, this firm (amongst others) offers to act for workers on a ‘conditional fees’ (“no win, no fee”) basis, meaning we do not charge our professional fees unless you achieve a successful outcome. Disbursements, including any medico-legal reports, are generally payable as and when incurred, but there are other options available where an injured worker cannot afford to pay at the relevant time.

Time limits for bringing a claim

There are strict time limits for bringing a claim:

Court proceedings must be commenced within three years of the date of your injury, unless you have leave of the Court (i.e. the Court’s approval);
However, as there are statutory restrictions which include establishing a degree of whole person impairment (15 % or more), generally leave is granted to bring within three years after your degree of permanent impairment is agreed or assessed.

How do I bring a claim for Work Injury Damages?

Generally speaking, after lodging a claim with the relevant employer / its workers compensation insurer, a Pre-Filing Statement must be served together with all particulars and evidence upon which the worker intends to rely (including witness statements, expert reports, medical evidence, and particulars of the worker’s claim for lost income).

Usually, the claim will then be lodged in the Personal Injury Commission (PIC) and referred for PIC mediation. The PIC must issue a certificate before court proceedings can be commenced.

If PIC mediation is unsuccessful, an injured worker is at liberty to commence proceedings in the District Court.

Bringing a claim for Work Injury Damages is a complex process. It is important that you obtain expert legal advice, to ensure all requirements are met at each stage of your claim.

What will happen to my Workers Compensation benefits?

When a Work Injury Damages claim is resolved by settlement or verdict, a worker’s entitlements to statutory workers compensation benefits (including weekly payments of income and medical / treatment expenses) is also extinguished.

In other words, when you successfully resolve a Work Injury Damages claim, you do so on the basis that there is no further right to claim any additional compensation in relation to your work injury.

The amount of weekly payments that has already been paid to you may also have to be repaid out of your settlement amount or award. Further, the total value of the claim may be reduced if it is reasonably arguable / determined that you were partially responsible for your own injuries.

Following on from the above, if your Work Injury Damages claim is unsuccessful, you will continue to receive your workers compensation benefits. However, in some cases, you may be ordered to pay the other side’s legal costs.

In light of all of the above, it is very important to get legal advice as soon as possible if you think your injury or illness was caused by negligence, as strict time limits apply. Get in contact with our expert workers compensation lawyers today.

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