Australia: Work injury damages claims in NSW - injured workers entitlements

Last Updated: 23 December 2017
Article by Will Murphy

A worker who suffers a compensable injury may be entitled to statutory workers compensation payments. These payments may consist of:

  • weekly compensation;
  • medical expenses; and in some cases;
  • lump sum compensation.

However, some injured workers will also be entitled to bring a claim for damages if they can prove they suffered workplace injury as a result of their employer's negligence. Claims of this kind, brought by employees against employers, are sometimes called work injury damages claims.

This article discusses some of the issues which a worker needs to address under the NSW work injury damages regime to prove he or she was injured as a result of their employer's negligence and, thereby, to recover damages.

15% or more whole person impairment.

To be able to pursue a work injury damages claim a worker must first satisfy a requirement that he or she is 15% or more whole person impaired (WPI) as a result of the injury subject of the claim.

In some cases agreement will be reached between the worker and the relevant workers compensation insurer that a worker does satisfy that 15% WPI threshold. In other cases the worker may have to go to the NSW Workers Compensation Commission to be assessed by an approved medical specialist who will determine whether they are 15% or more whole person impaired. Unless a worker is 15% or more whole person impaired as a result of the workplace injury they cannot pursue a negligence claim.

For a worker to prove he or she suffered injury as a result of their employer's negligence, they must prove three things:

  • there was a foreseeable risk of injury associated with the work they were doing;
  • the employer failed to take reasonable steps to minimise that risk of injury; and
  • the employer's negligence caused the worker's loss.

In addressing whether the risk of a worker suffering injury is foreseeable, the High Court has said the question to be asked is whether a reasonable person in the employer's position would have foreseen that their conduct involved a risk of injury to the worker.1

However, the Courts have held that the test for deciding if it is foreseeable that a worker may suffer injury as a result of a workplace risk is "undemanding". That means, in many cases, it won't be difficult for a worker to prove there was a foreseeable risk of injury associated with the work he or she was carrying out which resulted in them suffering injury.

As an example of foreseeability, assume you employ a labourer who is regularly, and repetitively, carrying out heavy work. It is foreseeable that a person doing that kind of work may suffer injury as a result of the continuous heavy work. In cases such as this, the worker will have no difficulty in proving there was a foreseeable risk of injury associated with their work.

The next question around negligence is whether the employer took reasonable steps to eliminate or reduce the risk of injury. Whether the employer has taken reasonable steps will be assessed by a judge objectively by reference to all the evidence.

Using our labourer example, a judge will have to consider what steps the employer put in place to address the risk of physical injury arising from employees carrying out heavy and repetitive manual work, and whether those steps were adequate.

In determining whether reasonable steps were taken by an employer the following kinds of issues will be considered:

  • was appropriate machinery and equipment supplied to assist with the work being carried out;
  • were sufficient personnel provided to assist with the work being carried out;
  • was there appropriate job rotation and work breaks to limit the period of time a worker would be required to carry out heavy work;
  • were maximum weight lifting limits stipulated by the employer;
  • what training has the employer provided to the worker so he or she fully understands how their work is to be carried out safely; and
  • did the employer provide adequate supervision to ensure the employer's system of work was being followed

"In order to minimise the risk of compensation and work injury damages claims being made, the touchstone for every employer is to work assiduously in creating and enforcing safe systems for their staff to work in."

If evidence establishing the above is available, an employer should be able to defeat a negligence claim. Without evidence of this kind, it is likely a worker will succeed in proving negligence.

Sometimes, however, when asking what steps should have been taken by an employer to address a risk of injury, the answer can be "none". It has been said:

It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture?2

Generally, in relation to some everyday activities which an employer could reasonably presume a fit worker could carry out safely, the employer may not be required to take steps to address the risk of injury arising from such activities.

A further aspect of a worker recovering damages as a result of their employer's negligence is they must be able to prove their employer's negligence caused the accident in question and resulting loss. Sometimes, even if the system of work provided by the employer was inadequate, it can be argued that was not the cause of the worker's injury or resultant loss.

There are other issues relating to negligence to consider:

  1. The duty to take reasonable care must account for the fact that sometimes employees are careless, particularly in the context of carrying out repetitive work. Familiarity can breed contempt. An employer's system of work needs to take that possibility into account.

  2. An employer's common law duty to take reasonable care for the safety of their employees at work cannot be satisfied by simply delegating that responsibility to a third party.

    For instance, if a Council employee is sent to work with another employer for a period of time, the Council cannot satisfy its obligations to provide a safe system of work by simply requiring the third-party to exercise reasonable care for the safety of the worker.

    The Council would still be obliged to take its own steps to satisfy itself that its employee was working in a safe environment. That may include assessing the risks associated with the work the Council employee is required to undertake for the third party, and to satisfy itself that the host employer had a safe work system for doing that work in place. It may also require the Council to regularly inspect the system of work being adopted by its employee. If it takes appropriate steps the Council may avoid liability in negligence if a worker is injured while working for another organisation.

  3. In addition to its own duty to take reasonable care for the safety of its employees, an employer is liable for acts of negligence of its employees. As an example, assume two employees, both labourers, are working together when one of the employees uses equipment in such a manner that the other employee is injured. If the employee who caused the injury was themselves negligent, the Council, as that person's employer, will be vicariously liable for the negligence of that employee. In essence, the negligent act of the employee will be legally attributed to the Council.

What about contributory negligence? If a worker has failed to take reasonable care in how they work, despite the fact the system of work provided by the employer is itself inadequate, then the worker's entitlement to damages will be reduced for their contributory negligence.

It's important to note, however, that if the system of work provided by the employer is inherently unsafe, and a worker is simply following that existing and accepted system of work, the worker may not be contributorily negligent.

Where a worker's injury can be attributed to both their employer's negligence, and their own negligence, a judge will have to assess the relative culpability, or responsibility for causing the injury, between the worker and the employer. To the extent the worker is found to have been negligent, their damages will, generally speaking, be reduced.

In NSW a worker bringing a negligence claim against their employer can only recover damages for past and future economic loss. They can't recover damages for future medical and care expenses. Further, if a worker recovers work injury damages, that puts an end to their right to recover statutory compensation payments.

Further, if a worker recovers work injury damages, that puts an end to their right to recover statutory compensation payments.

What can be done?
Council's, of course, have workers compensation insurance which will indemnify them in relation to work injury damages claims.

In order to minimise the risk of compensation and work injury damages claims being made, the touchstone for every employer is to work assiduously in creating and enforcing safe systems for their staff to work in. Safe systems for workers reduces the risk of injury and the consequential costs associated with compensable injuries.

Of course, the other benefit is safe work systems will reduce the risk of Work Health and Safety prosecution.


1Wyong Shire Council v Shirt High Court 1980.

2Seage v State of NSW, NSW Court of Appeal, 2008

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”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions