What are my options if a workplace injury was due to negligence?

Published 20 Nov 2017

Workers compensation is compulsory for NSW employers, enabling staff to receive financial support while they recover from injuries they sustained doing their jobs.

Figures from Safe Work Australia show that work-related accidents are a significant problem in the country. Injuries, illnesses and deaths cost the country's economy $61.8 billion in 2012-13.

But what options do you have if you believe an employer's negligence was the cause of your accident? Is the process the same as a blameless injury?

Work injury damages claims

In NSW, you can pursue compensation for workplace injuries under modified common law negligence principles.

They are deemed 'modified' because people are usually allowed to make a negligence claim for non-economic losses - such as pain, suffering and disfigurement - under the Civil Liability Act (CLA).

However, work injury damages are instead governed by the Workers Compensation Act 1987, which doesn't authorise non-economic losses.

Nevertheless, a successful work injury damages claim can result in significant compensation for staff who experience serious accidents during their employment. 

Am I eligible for work injury damages?

Employees who make work injury damages claims must prove:

  • The injury was a direct result of employer negligence; and
  • The injury constitutes at least a 15 per cent permanent impairment.

Approved medical specialists calculate your level of impairment, so it's important to contact an experienced compensation lawyer in NSW who can connect you with the right experts for a diagnosis.

You should also be aware that pursuing a claim will cancel all your entitlements to workers compensation benefits in the meantime. Furthermore, you are expected to pay back any workers compensation already received when awarded a settlement.

Making a work injury damages claim

If you meet the necessary criteria, the next step in the claims process is to serve a pre-filing statement that outlines the details of your case. This must include the evidence you expect to use to prove your version of events.

Your case is likely to be referred to the Workers Compensation Commission for mediation first. Eventually, your claim will go before a judge at the District Court if the settlement process is unsuccessful.

You should keep in mind that a work injury damages claim must be started within three years of the date of the accident, so seek legal advice as quickly as possible.

Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers is a law firm with extensive experience in the field of work injury damages claims.

Contact us today to learn more about our no-win, no-free services.