Can I Sue My Employer?
Suffered an injury as a result of work? Need expert representation?
After my accident the claims process was overwhelming. The insurer was difficult to deal with and I didn’t know who to trust. They offered me peanuts for my claim. I was lucky to find you. Thank you for all the help, you were honest and upfront from the start and the result was superb. All the very best to you and your staff. Marni, Narellan Vale
Employees in New South Wales are covered by workers compensation insurance in the event of an injury which occurs during the course of their employment.
Beilby Poulden Costello endeavour to obtain favourable outcomes and to protect the rights of Sydney’s injured workers.
Don’t delay! Contact our Workers Compensation Specialists today.
Have you suffered a serious injury you believe to be at the fault of a negligent employer or hazardous conditions in the workplace?
Contact BPC Lawyers at (02) 8280 6900.
Ordinarily, the law requires you to bring this kind of cause of action within 3 years of its occurrence.
However, when suing your employer, the Court is given the power to extend this time. Traditionally it would grant such an extension provided that it was satisfied a fair trial would be conducted; that is, that the Defendant was not materially prejudice by the delay in bringing the action out of time.
This means, that an injured worker would not be able to proceed with their case if the Defendant could show that they were prejudiced in the bringing of the claim past 3 years. Examples of prejudice include loss of witnesses, documents or even the loss of the right to recover from another negligent party.
An often used reason for a delay is that an employee’s injuries did not reach the threshold required to commence proceedings within that time, something out of the control of an injured employee.
Despite this preclusion, it was thought that the required threshold of 15 % Whole Person Impairment did not interfere with the requirement to commence proceedings 3 years from the date of injury.
However, in Opoku, her Honour Justice Adamson of the Supreme Court of New South Wales has cast doubt on this being the case.
In her Decision her Honour found that the 3 year period commences only when the threshold of 15 % Whole Person Impairment was reached at para 62-63.
This case flies in the face of a long line of legal authority.
The Conflict
Most cases of negligence against an employer are brought in the District Court.
The case of Opoku is being used so as to bind the District Court to the thinking of Opoku.
The views expressed in the Opoku decision has not obtained universal acceptance.
Her Honour Judge Gibson DCJ, a Judge of the District Court of New South Wales refused to follow Opoku in Parry v Masterpet Australia Pty Ltd (2013) NSW DC 71 at paragraph 27 in which she says:
“this approach conflicts with many years of settled law in the New South Wales Court of Appeal. Adamson does not refer to many decision which have held that the three year period date from injury, not a finding of permanent impairment sufficient to bring a claim. Since the Doctrine of Precedent and Principle of Stare Decisis operate to insure certainty in the Common Law system…this effectively means that I cannot follow Adamson’s reasoning in Opoku compelling that this approach may be”.
Should I sue?
Employers owe their employee a very broad and comprehensive duty of care to provide, implement and maintain a safe system of work. Whilst the duty is not to provide a perfect workplace, it does require a high level of reasonable undertaking in all matters which connect their worker to their work.
But, if you are able to sue your employer it will be limited to economic loss suffered by way of wage loss and or diminution of your earning capacity – nothing for FUTURE MEDICAL EXPENSES!!!
If your medical expenses are or are likely to be substantial, then you should consider whether it is commercially in your interest to sue your employer or whether holding onto your Workers Compensation Rights would prove more valuable.
Conclusion
If you feel that your injuries are of a sufficiently serious in nature and considering they have been caused by the unreasonable behaviour of your employer then we strongly recommend that you contact our office to arrange a conference so that we can advise you of the prospects of succeeding, as well as whether it will be in your interest to sue your employer.
As the law stands today, whist it is arguable that you have three years from obtaining a 15% Whole Person Impairment or greater assessment, the most likely view of the law is that the limitation period starts from the date in which you get injured.
Hence, if you do not commence proceedings within this time for whatever reason, you will be required to ask the Court to give you an indulgence to commence proceedings against your employer in negligence.
Source: Tim Driscoll (Solicitor)
Opoku v P & M Quality Smallgoods Pty Ltd and ORS (2012) NSWSC 478
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Ordinarily, the law requires you to bring this kind of cause of action within 3 years of its occurrence.
However, when suing your employer, the Court is given the power to extend this time. Traditionally it would grant such an extension provided that it was satisfied a fair trial would be conducted; that is, that the Defendant was not materially prejudice by the delay in bringing the action out of time.
How To Make A WorkCover Compensation Claim
The definition of a worker includes:
Those that work for an employer as an employee under a written or oral contract of service;
A “deemed” worker, that is contractors who should be treated as employees.
If you fall in to one of the above categories and have sustained an injury either in the course of your employment or either travelling to or from work then you are entitled to make a claim for compensation. Mostly it does not matter whose fault it was that caused the injury.
Workers’ Injury Management Guide.
If a worker is injured an employer must:
Attend to the injured worker as soon as possible;
Notify the insurance company within 48 hours;
Co-operate and participate with the insurance company to develop an injury management plan;
Implement and monitor a return to work plan for the injured worker.
An Expert Workplace Injury lawyer Will Help Advise You On.
- Gathering medical records and relevant evidence
- Refuting the claims of any independent doctors from WorkCover
- Whether you have the right to seek additional medical opinions to help support your claim
- Who is liable to pay for the medical reports and bills; including any union assistance
If you have suffered a work-related accident, don’t be afraid you will be fired. It is actually within your employer’s best interests to keep you employed and to comply with the accident compensation claim. So speak to an expert Sydney workers compensation lawyer at Beilby Poulden Costello early, to help clarify your rights and your employer’s legal obligations to compensate your injury.
If your accident occurs due to the fault of your employer or some third party you may have a right to bring a common law claim for damages. This type of claim may be far more substantial than your WorkCover claim. Our experienced team of personal injury lawyers can advise you of your rights and entitlements and ensure you get the compensation you deserve.
Are You Covered and What Are You Entitled To
In New South Wales the Workers Compensation Act provides financial protection to all workers in the event that they are injured or killed at work or suffer a work related disease.
The act states that a worker, who has received an injury at work, shall receive compensation from the worker’s employer. In the event that the injury results in the death of a worker, then the worker’s dependents shall be entitled to receive this compensation.
If you are injured at work you will be entitled to receive workers compensation which includes:
- The payment of weekly compensation benefits until you are able to return to work.
- The payment of your reasonable and necessary medical bills for treatment you require as a consequence of your work place injury including physiotherapy.
- The payment of any costs associated with your rehabilitation to enable you to return to work including retraining if you are no longer able to continue doing the same work as a result of your work place injury.
- Lump sum payments of compensation if you have suffered a permanent impairment of a certain level.
- Lump sum payments of compensation for pain and suffering if your work place injuries are assessed at a certain level.
- Payment of your legal expenses incurred in making a claim for compensation.
The Workers Compensation Act makes it compulsory for employers to have a workers compensation policy if they pay more than $7500 in wages per annum, employ an apprentice or trainee, or are part of a group for premium purposes.
These policies of insurance are called “WorkCover Insurance”.
WorkCover NSW is part of the Compensation Authorities Staff Division. The Division was formed as an administer for work health and safety, injury management, return to work and workers compensation laws and manage the workers compensation system.
The aim of WorkCover Insurance is to ensure that all workers will receive their statutory entitlements to workers compensation if they suffer a workplace injury, regardless of the financial status of their employer. Employers pay a premium each year for their WorkCover insurance depending on the number of employees they employ and various other factors.
If you are injured at work you will be entitled to receive workers compensation which includes:
- The payment of weekly compensation benefits until you are able to return to work.
- The payment of your reasonable and necessary medical bills for treatment you require as a consequence of your work place injury including physiotherapy.
- The payment of any costs associated with your rehabilitation to enable you to return to work including retraining if you are no longer able to continue doing the same work as a result of your work place injury.
- Lump sum payments of compensation if you have suffered a permanent impairment of a certain level.
- Lump sum payments of compensation for pain and suffering if your work place injuries are assessed at a certain level.
- Payment of your legal expenses incurred in making a claim for compensation.
Workers Compensation Changes in NSW
The NSW Workers Compensation scheme has recently undergone some radical changes.
These changes have/will apply to ALL workers regardless of when their injury occurred UNLESS
- You were injured whilst and as result of employment with NSW Ambulance employee
- You were injured whilst and as result of employment with NSW Police
- You were injured whilst and as result of employment with NSW Fire Brigade
- Your claim is covered by a ComCare System or another state scheme.
The Old System
Generally, the old System provided all workers the following ongoing rights:
- Payment for all medical expenses properly incurred because of a work related injury
- Payments (capped) for time off work due to work related injury, and
- Payment for permanent impairment suffered because of a work related injury including a sum for pain and suffering between $0.00 and $50,000.
New Restrictions
For most workers, the new system provides for many restrictions which must be considered.
Medical Expenses
Payment of medical expenses is limited in two very limited respects.
Firstly, pre-approval is required from the insurer before they are liable for the medical expense
Secondly, you can only recover medical expenses up to 12 months from your last receipt of weekly wage compensation benefits.
Hearing Loss Claims
As most workers who are suffering a hearing loss don’t have much time off due to their injury, coverage for medical expenses only lasts for 12 months from the claim being made.
This is a significant reduction in medical expenses, especially as most workers require new hearing aids etc. past 12 months.
You should therefore ensure that you obtain all the treatment you can within 12 months of your claim being made.
Weekly wage compensation
For most workers, such benefits have increased in the amount per week (cap) but decreased the duration of the entitlement to such benefits.
For most workers, this benefit will be limited to a period of 1 to 260 weeks.
If a person is seriously injured and receives an assessment of or in excess of 21% Whole Person Impairment, those benefits may extend from 261 to entitlement to the aged pension.
Permanent Impairment Benefits
One and One claim only can be made.
If your condition gets worse – you are unable to claim a ‘top up’.
Further, compensation for pain and suffering is no more.
You must have an 11% WPI or greater rating/assessment before you’re entitled to any permanent impairment compensation.
Seriously injured – the exception
If you have a 31% WPI or greater then, your entitlements to weekly wage compensation and payment of medical expenses will continue similar to before.
What should I do?
If you made a claim for compensation before 18 June 2012 and have not yet received permanent impairment benefits or feel you condition has become worse since you last assessment, please contact our office to arrange an appointment as soon as possible.
The workers compensation system is run by the WorkCover Authority of NSW. WorkCover NSW is a statutory authority within the Minister for Commerce’s portfolio. The primary objective is to work in partnership with the New South Wales community to achieve safe workplaces, effective return to work and security for injured workers.
Find out more about your eligibility to make a claim, claim application steps and all relevant information by reading our full workers’ compensation claims guide.
Workers Injury Management Guide
Injury management is the prompt, safe and long term return to work of an injured worker. It attempts to include the treatment of your injury, rehabilitation back to work, retraining into a new skill or new job and liaison with your employer.
Everyone involved in your claim is required to cooperate and participate in injury management including the insurance company, employer, yourself and your treating doctor. Both you and your employer have responsibilities and rights in relation to injury management. Find out more by reading our complete guide to injury management.
The New South Wales Worker’s Compensation Scheme is a State Government funded scheme.
As a trade-off to having to prove fault, the scheme gives employees the right to compensation for injuries suffered caused by their work.
Am I eligible to sue?
An injured worker can still bring proceedings against its employer for their loss of wage/earning capacity in negligence, breach of a statutory duty or contract if the following can be established:
- That your injures suffered as a result of your employment have caused you a 15 % Whole Person Impairment or greater;
- That your injures were suffered because of your employers negligence;
- You have suffered some form of economic loss that is a loss of wages and or diminution of your earning capacity.
Explore more about what suing your employer will compass and gain additional insights by reading a past workers’ compensation case.
