Australia: A hindrance or a help? - obtaining details of pre-existing injuries from prospective employees

Last Updated: 13 November 2013
Article by Peter de Silva

The recent amendments to the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA) allow an employer during the hiring process to:

  • Request that a prospective worker disclose pre-existing injuries or medical conditions.
  • Ask the Regulator for a copy of a prospective worker's claims history summary, with the prospective worker's consent.

While the amendments appear to benefit employers and workers' compensation insurers at first glance, employers should proceed with caution in making changes to the way they approach the hiring process.

Requesting disclosure from a prospective worker

An employer's request for disclosure must:

  • be in writing
  • include the nature of the duties the subject of the employment
  • state that, if the prospective worker knowingly makes a false or misleading disclosure, then the prospective worker will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition, and
  • give the prospective worker a reasonable opportunity to comply with the request.

What is a 'pre-existing injury or medical condition'?

'Pre-existing injury or medical condition' is defined as "... an injury or medical condition existing during the period of the employment process that a person suspects or, ought reasonably to suspect, would be aggravated by performing the duties the subject of the employment."

The term 'existing' is not defined, although it seems to suggest an injury or condition that, at the very least, has not resolved prior to the employment process. The explanatory memorandum seems to contemplate a broader interpretation which does not distinguish between suspicion of a live injury/condition, and a resolved injury/condition, being aggravated.

What is false or misleading disclosure?

'False or misleading disclosure' is defined as "... any disclosure that would lead a prospective employer to reasonably believe that the duties the subject of the employment would not aggravate the prospective worker's pre-existing injury or condition."

The issue of false or misleading disclosure is likely to be highly contentious given the consequences. It is to be expected that a review body or a court will not deprive a worker of his or her rights to compensation and/or damages lightly, with disputes likely to be concerned with:

  • The worker's awareness of the pre-existing injury or condition during the employment process and whether he/she 'knowingly' made 'false or misleading disclosure'. Proving the subjective knowledge of an individual is always difficult.
  • Whether the injury was 'existing' during the employment process. Proof that the injury was 'existing' might require proof that the injury or condition was symptomatic during the employment process.
  • Whether the worker was given enough information about the duties to enable the worker to make proper disclosure. This will require sufficient detail about the critical demands and requirements of a role to be given to enable the prospective worker to make a properly informed decision regarding disclosure.
  • Whether the injury the subject of the claim is an aggravation of a pre-existing injury or condition, or a new injury. Medical opinion can vary on these types of issues.

The workers' compensation insurer will bear the evidentiary onus, and each of the above requirements may be difficult to meet.

Knowledge of a relevant pre-existing injury or condition

There are two variations to the standard of care which flow from pre-existing injuries or conditions:

  1. If a worker has a particular vulnerability which is not reasonably foreseeable, then a system of work or plant or equipment which would not have harmed a person without the vulnerability will not be the basis for a finding of breach of duty for an injury arising from that vulnerability, provided the employer was not aware of it.
  2. However, if the employer knew that the worker suffered from a particular vulnerability, a special or higher duty is then owed because of that knowledge.

Employers should be mindful of the potential for increased exposure in common law negligence in circumstances where disclosure has been made of pre-existing injuries or conditions.

Discrimination legislation

Further, employers must also be careful not to contravene the Fair Work Act 2009 (Cth), the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1991 (Qld), all of which have prohibitions on employers taking discriminatory action against prospective employees on the basis of disability or impairment.

For instance, if an employee discloses a pre-existing injury and it can be established that an employer has discriminated against or otherwise treated that employee less favourably based on their pre-existing injury, the employer may be liable for compensation.

Some key points employers should consider are:

  • Simply requesting information about a worker's pre-existing injury or medical condition does not make it lawful for an employer to then take discriminatory or adverse action against a worker based on that information.
  • If a prospective employee establishes that an employer has taken adverse action against him or her on the basis of a pre-existing injury, the employer will then bear the onus of proof to show that it did not take adverse action against the employee because of that injury.
  • Employers should be reconciling the changes in the WCRA with their hiring policies, and should be making detailed records of interviews and application processes where a worker discloses a pre-existing injury.
  • Employers should ensure that requests for information about pre-existing injuries and medical conditions strictly comply with the WCRA and discrimination legislation.


In summary, before implementing any changes to their hiring process, employers should bear in mind that:

  • The evidentiary requirements for an insurer to establish that a worker has no entitlement to compensation or damages are particularly onerous, and are likely to only be satisfied in the clearest of circumstances.
  • Knowledge at the outset of an employee's pre-existing vulnerabilities may lead to a higher standard of care for the employer at common law, and a greater liability exposure.
  • Care must still be taken not to contravene the Fair Work Act 2009 (Cth), the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1991 (Qld) when using information obtained under the changes to the WCRA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.