The South Australian Government's new Return to Work
Bill 2014, allowing access to common law damages for the first
time since 1992, represents a swinging back of the "tort law
In the late 1990s and in the early part of the next decade,
governments around Australia made changes to compensation schemes
spurred on by rising insurance premiums and cost blow-outs.
In 2002 federal, state and territory governments appointed a
"Panel of Eminent Persons" to review the law of
negligence, known as the Ipp Review. Following that review, every
Australian jurisdiction enacted significant tort law reforms to
implement its recommendations.
Perhaps because of this, the proposed SA changes have attracted
On 6 August 2014 the South Australian Government tabled the
Return to Work Bill 2014 and the South Australian
Employment Tribunal Bill 2014 in Parliament. These two Bills
provide the framework for the State Government's 'most
significant reform of compensation law in more than 25
Along with a renewed commitment to a "return to work
focus", the new Return to Work Bill also makes
provision (for the first time since 1992) for employees to take
common law action against their employers for negligently caused
injuries. It should be noted, however, that the Bill tightly
prescribes this right and it is by no means open to all
When will an award of damages be made?
The Bill provides that an employer is not liable for an award of
damages regarding the injury or death of a worker unless:
the injury was caused by the negligence or other tort
(including breach of statutory duty) of the worker's employer
(and in the case of psychiatric injury, such negligence was the
primary cause of the injury), or
the injury constitutes motor vehicle damages.
the injury must have resulted in a successful claim for
must have resulted in either death or a permanent impairment to
the worker of at least 30%. The impairment rating will be
determined according to yet to be released Guidelines and in
assessing impairment the physical impairment and psychological
impairments must be assessed separately. The 30% threshold is not
met unless either the physical impairment is at least 30% or the
psychiatric impairment is at least 30%. This appears to constitute
a high threshold, and
an award of damages will not be made to a director of an
When can a worker commence a common law proceeding
A worker cannot commence proceedings against their employer
until they have undergone a permanent impairment assessment under
Part 2 Division 5. Necessarily this will require that their
injuries have stabilised (section 22(7)) and is likely to occur
well into the worker's WorkCover claim.
What damages may be awarded
Damages to a seriously injured worker will not be awarded
against the employer for costs of treatment, care or support
services (Section 73(2)(a)), but only damages for economic loss
Any money already paid by the Corporation as compensation will
be recovered from the award.
A worker must choose either an award for future economic loss or
redemption of liability for weekly payments. There is limited
entitlement to interest on awards, and contributory negligence and
apportionment principles may apply.
Who are the parties to the action?
A common law action must be brought by the worker in the name of
the employer, not the Corporation. However the Corporation is
entitled to conduct all proceedings for the employer (except for
self-insured employers) and settle the claim as they see fit.
Section 135(3)(b) provides that damages will be paid from the
Compensation Fund by the Corporation in their role as the
employer's insurer. Damages paid on behalf of an employer will
affect their premiums.
Comparison of provisions in other states
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.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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