Have you been injured at work? Are your injuries a result of your employer's negligence? If so you may be able to make a claim Work Injury Damages. A work injury damages claim is a common law claim against your employer for negligence.

In New South Wales, to make a work injury damages claim, you must:

  • Make a workers compensation claim for lump sum compensation under Section 66 of the Workers Compensation Act 1987 and obtain an assessment of whole person impairment of at least 15%;
  • Demonstrate that your injury was a result of your employer's negligence and this negligence caused you to suffer a loss.

Take John for example. John was employed as a storeman in a warehouse and his duties involved manually lifting heavy objects. His employer had not provided him with adequate training on manual handling. One day, John lifted a heavy object and sustained a serious injury to his back leading him to require surgery and he was unable to return to work. John pursued a workers compensation claim and was awarded a Section 66 lump sum for whole person impairment of 17%.

As John exceeded the threshold of 15% whole person impairment and his injuries were a result of his employer's negligence, John was able to make a work injury damages claim.

If you are eligible to make a work injury damages claim, you will be entitled to make a claim for past and future economic loss for incapacity for work consisting of loss of wages and superannuation. You can also make a claim for the tax amounts paid on weekly compensation benefits.

In a work injury damages claim, you are unable to make a claim for pain and suffering, domestic assistance and medical treatment expenses. If it is determined that your own negligence such as failing to take reasonable care contributed to your injury, the amount of damages payable may be reduced for your own contribution to your injury.

There are essentially four steps involved in making a work injury damages claim including:

  1. Making the Claim;
  2. Serving a Pre-Filing Statement and Pre-Filing Defence;
  3. Mediation;
  4. Court Proceedings.

Each step is complex and has certain requirements including time frames and specific documents which are required to progress the matter. It is important to obtain legal advice to ensure all requirements are met to make a work injury damages claim.

If you have a successful work injury damages claim either by accepting a settlement or obtaining a judgment in your favour at Court, that will bring an end to all your workers compensation rights and entitlements arising from the accident. The insurer will also have to be repaid for the amount of weekly payments which have already been paid in relation to your claim.

It is important to bear in mind that you have three years from the date of your accident to make a claim for work injury damages.

If your work injury damages claim does not settle at Mediation, the matter may proceed to Court. If your work injury damages claim proceeds to Court, these Court proceedings must begin within three years of the date of your accident unless there is approval from the Court and an extension of time is granted. Although it is not guaranteed that an extension of time will be granted, therefore it is important to make a work injury damages claim within the three year time limit if you are able to do so.

And what about legal costs?

As it is often difficult to pay for legal fees after an accident, your lawyer will typically offer to act in the matter on a Conditional Fees basis, i.e. No Win, No Fee.

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.