Workers’ Compensation Common Law Damages Claims in New South Wales – Jobs and HR

In New South Wales, if you are injured on the job, you may be entitled to workers’ compensation benefits under the statutory scheme, such as payment for lost wages, medical expenses and a payment lump sum for permanent impairment. Additionally, if your injury is due to your employer’s negligence, you may also be eligible for compensation through a workers’ compensation claim; a common law claim.

Who is entitled to labor damages?

Several criteria must be met to be eligible for labor damages:

  1. Your injury (or injuries) must be the result of negligence
  2. You must be assessed with at least 15% whole-person impairment in accordance with WorkCover’s assessment guidelines on permanent impairment. These are the same guidelines that will have been used to determine your impairment percentage for your permanent impairment claim.
  3. The claim for workers’ compensation damages must be made within three (3) years of the accident. If you are assessed at 15% outside the three years, a claim can still be made after obtaining clearance (permission) from the court.

A lawyer can advise you in more detail regarding your situation and whether you are likely to meet the criteria for a claim.

Claims against another party (not your employer) for negligence

Additionally, there may be another party who may be liable for negligence; for example, a site manager, other contractors, etc. Claims against these persons or other parties are referred to as occupants/liability claims.

A claim against another party may be made regardless of the level of impairment of the whole person, but must be made within three (3) years of the injury. If the procedure is initiated after 3 years, permission from the court must be obtained.

What compensation is payable with a workers’ compensation claim?

Workers’ compensation claims are limited to a claim for loss of past and future economic losses calculated to retirement age. The claim also includes payments for past and future loss of superannuation as well as tax that has been deducted from our weekly workers’ compensation payments (under the statutory scheme).

An adjustment is made to the past economic loss claim for the amount of weekly compensation the insurer has already paid you under the statutory workers’ compensation scheme.

If you have received Centrelink payments or income protection, these will be refundable upon settlement of the claim.

With respect to the claim for future economic loss, an adjustment is made to the value of the loss by reference to actuarial tables. It is not a simple mathematical calculation of the loss, because when you resolve your claim for damages at work, you receive the damages (compensation) in the form of a non-taxable lump sum rather than the weekly payments that you received before.

There is also a reduction in future economic loss, usually 15%, to take into account the “vicissitudes of life” or the prospect that some other unknown future factor may affect your earning capacity.

What is the procedure for making a claim for damages at work (common law)?

Once we determine that your employer’s negligence contributed to or caused your injury and you resolve your lump sum claim for permanent impairment, we will send you notice s281/282 which sets out the negligence allegations and the amount we are claiming on your behalf.

The insurer will render its decision in response.

The insurer has a period of two months to respond, however, if the insurer requests clarification on the claim, the period for rendering the decision is extended to two months from the provision of the additional information. Similarly, if the insurer organizes an Independent Medical Examination (IME), it has two months from the date of the IME.

A damage report will be drawn up. This is a document that sets out all the details of your claim and the basis for our advance statement which will be served on the other party (the insurer) along with other supporting documents.

The insurer will then serve its Preliminary Defense and its exhibits.

We will then seek mediation with the Personal Injury Commission to try to settle the matter without having to go to trial. A mediator will be appointed to assist with settlement negotiations. Mediation should normally be scheduled approximately 9-12 months from the date we serve notice s282.

Sometimes mediation cannot take place; for example, the insurer refuses to participate in mediation. In this case, the plaintiff (you) is required to initiate legal proceedings to pursue the claim for workers’ compensation damages.

What is the cost to pursue a claim?

Legal fees will be payable if you pursue a workers’ compensation (or occupier’s liability) claim because the IRO (the Independent Review Office) does not fund such claims.

If you choose to engage a Hall Payne Personal Injury Lawyer to assist you with your claim, we will provide you with a Fees Agreement (outlining the estimated costs to pursue your claim), before we do any work for you.

What happens when my issue is resolved?

When your case is resolved (either through mediation or trial), any right to weekly compensation and processing fees (under the statutory workers’ compensation scheme) will end and your compensation case accidents at work will be closed and finalized.

You will receive a lump sum to cover the settled amount for past and future economic losses.

Sometimes the employer may ask that you resign from your job if you are still technically employed.

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The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

Maria D. Ervin