Injuries at work can take many forms. The injury could be physical, psychological or a combination of both but because it occurred at work, it may give rise to a compensation claim.
Workers’ compensation legislation around Australia provides protection for workers when injured in the course of their occupation, covering medical expenses and lost wages for a certain period. A larger, lump-sum payment may also be available depending on proof of the seriousness of the injury.
But beyond a workers’ compensation claim, many employees will also claim their work injury was caused by the negligence of their employer and wish to take legal action against the business.
From poorly maintained equipment, inadequate instruction or guidance, lack of safety protocols or multiple other reasons, a worker may have grounds to make a work injury damages claim.
It’s important to understand what’s required in proving the negligence of an employer before initiating this type of claim, as we discuss in this post.
What does a person need to establish to prove an employer’s negligence?
There are a number of barriers to a person making a work injury damages claim where they believe their employer’s negligence caused their injury.
In NSW, this claim can generally only be made for past loss of earnings and future loss of earning capacity as a result of the injury.
To summarise, a work injury damages claim can only be made if you can establish your employer’s negligence, prove a whole person impairment (WPI) of 15 per cent or more to an insurer, and establish economic loss due to the injury.
Establishing negligence: The steps to establishing negligence are well settled as reflected in NSW’s Civil Liability Act. The process begins with showing that the negligent party owed the injured person a duty of care. The relationship between an employer and employee is a well-established category of duty of care.
The person making a claim must also show that it could be reasonably foreseen that an act (or omission) could cause the damage or injury for which they’re claiming and that because of this the negligent employer (in this case) had a duty to take steps to prevent the harm occurring.
Once those matters are established, the injured person must show that the employer breached the duty of care and that the breach caused the injury or loss.
How is a work injury damages claim determined?
A court considers the extent and seriousness of the injury, the amount of financial loss, and the persistent effects of the injury on the claimant’s future ability to earn income in determining the amount that should be awarded as compensation.
Another factor considered is whether the injured person took reasonable steps and minimum precautions to prevent the harm from occurring.
If it can be shown that the person making the claim in any way contributed to the harm they suffered – such as improperly using work equipment, for example – a compensation pay-out can be reduced.
It should also be noted that if a person’s work injury damages claim leads to a successful settlement, any further entitlements to benefits under the workers’ compensation scheme will end. Additionally, any weekly payments already paid to the injured worker will need to be repaid from the settlement amount.
More detail on the claims process
A work injury claim generally begins with notifying the relevant insurer of the injury and how it has impaired the claimant, the details of the incident that caused it, any earlier injuries or health conditions, the alleged negligent acts of the employer, and the economic loss being claimed as a result of the injury.
A process of mediation will take place before court proceedings are necessary if the insurer does not accept liability for the injury at the first instance and does not offer a settlement.
Independent legal advice is crucial throughout this process. Proving the negligence of an employer can be a challenging mission for an individual against the might of an employer’s insurance company. The guidance of experienced personal injury lawyers is invaluable in making this damages claim.
Call BPC Lawyers
Call BPC Lawyers for further advice on any of the issues raised in this post. Our award-winning Sydney worker compensation lawyers have a proven track record of pursuing work injury claims based on the negligence of employers.