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.

Negligence
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.

Damages
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.

Footnotes

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.

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