Work Injury Damages Common Law Claim
In NSW, if you (the injured worker) have suffered a work-related injury, whether it be physical or psychological, you may be entitled to workers compensation benefits including weekly payments, medical, hospital and rehabilitation expenses and returning to work assistance.
If your injury resulted from your employers negligence, then you may be also be eligible for a lump sum payout through a work injury damages claim, also known as a common law claim.
What is common law/work injury damages claim?
A work injury damages claim is also known as a common law claim. It is a lump sum payment for damages if your work-related injury resulted from your employer’s negligence. This injury could be a psychological injury or a physical injury sustained while at work or, in some circumstances, a motor accident in the course of your employment.
In NSW, work injury damages are limited to a claim for past and future loss of earnings calculated until retirement age inclusive of superannuation. You cannot claim for pain and suffering or medical expenses. The claim for past economic loss is adjusted to take into account the amount weekly payments made by the insurer and any Centrelink payments or income protection payments received by you will be repayable from the settlement of the claim.
Upon resolving your work injury damages claim all benefits including weekly payments and medical, hospital, and rehabilitation expenses associated with your injury cease. We recommend you speak to our work injury damages lawyer for a free consultation so you know the benefits and implications of a work injury damages claim.
- Injuries must be determined at 15% whole person impairment or greater
- Injuries must have occurred as a result of your employers’ negligence
Can I make a common law claim for psychological injuries?
Yes, if your psychological injury is assessed as being 15% or greater whole person impairment and the injury resulted from your employers negligence, you may be entitled to make a work injury damages claim.
Can I claim a work injury damages lump sum?
You may be entitled to make a claim for work injury damages regardless of your age if you satisfy the following:
- Your work injury resulted from your employer’s negligence.
- Your work related injury has been assessed as being at least 15% whole person impairment (WPI), and this assessment has been accepted by the insurer or determined by the Workers Compensation Commission.
- You have received all statutory lump sum entitlements for permanent impairment to which you are entitled.
- The work injury damages claim is to be made within three (3) years of the date of the injury.
Generally, to prove negligence (point 1 above), you need to establish:
- Your employer owed you a duty of care; and
- Your employer failed to exercise that duty of care; and
- Your permanent impairment resulted from your employer’s negligence.
If you think you may be entitled to make a work injury damages claim, it is recommended that you seek legal advice to assess your eligibility, prospects and circumstances in respect of a claim.
How can I claim work injury damages?
There are various procedural steps involved to bring a claim for work injury damages in NSW.
Firstly, your work related injury must meet the threshold of at least 15% whole person impairment, and that WPI must be accepted by the insurer.
To make a work injury damages claim in NSW, you are required to then provide the employer and their insurer with relevant details of the claim, sufficient to enable the insurer to make an assessment of your full entitlement on the claim. The details you will need are:
- When the injury happened.
- Details of your injury and impairment.
- Details of any previous injury, or any pre-existing condition or abnormality.
- Details of any previous injury claims.
- Details of the economic loss you suffered, that you are claiming as damages.
- Details of the alleged negligence of your employer.
- The amount you’re claiming and any supporting documentation and information.
If the insurer then accepts liability, they will make an offer of settlement. If you do not agree with their offer of settlement, then you may start the process to commence proceedings which involves serving on the insurer a document known as a Pre Filing Statement (‘PFS’). A PFS sets out details of your claim and the evidence you will rely on to establish or support your claim against your employer.
The Defendant (the insurer/employer) will then have 28 days to serve a Pre-Filing Defence (‘PFD’) setting out their determination as to liability, and their response and evidence that they will rely upon. Should they fail to reply within 28 days, you can seek mediation in the Personal Injury Commission to try to settle the matter without the need to go to court.
At mediation, the parties will meet in an attempt to exchange offers of settlement however, if the parties are unable to reach an agreement, the claim will be heard in the District Court.
If you’re negotiating work injury damages with an insurer, or considering commencing a work injury damages claim, it’s strongly advised that you get independent legal advice on your options and consider having one of our personal injury lawyers negotiate settlement, or represent you in court, on your behalf.
Will I have to go to court to get work injury damages?
The parties will have opportunities to resolve the matter before starting mediation or court proceedings. A mediator will assist the parties to reach a settlement through discussions however, not all matters resolve at this stage. If you don’t agree with an insurer’s offer of settlement, and an agreement cannot be reached regarding your lump sum payment, then you will need to commence proceedings for work injury damages in court.
It is important to note that you can only start court proceedings from at least six (6) months after the injury was reported to the employer.
There are also time limits which apply, whereby you must commence court proceedings within three (3) years of the work injury. Our work injury damages lawyers will advise you of what is in your best interests and how to claim maximum compensation for your work injury.
What are the time limits to make a work injury damages claim?
The time limit to lodge a work injury damages claim is three (3) years from the date of the injury however, special leave (permission) for an extension of time may be granted by the Court in specific circumstances. To obtain an extension of time, you will need to make an application to the Court seeking their leave to commence proceedings outside of the prescribed time. Of course our lawyers will do this on your behalf if we were acting for you.
How much do lawyers charge for a work injury damages claim?
Before starting a work injury damages claim, you should seek independent legal advice.
For work injury damages claims in NSW, legal costs will be payable as the Independent Review Office does not fund these claims.
How much a solicitor can charge you for representing you in a work injury damages claim are included in the Workers Compensation Regulation 2016. However, in most cases, law firms including this one ask that you enter into a separate costs agreement through which we are entitled to charge more than the regulated costs under the Regulation. However, we ensure our legal costs are reasonable and proportionate to your settlement and we only charge you for the work we did. We will never settle a claim without keeping you in the loop and of course on your instructions.
For these claims we work on a ‘no win no fee’ basis. That means that your legal costs and disbursements will only be payable if your claim is successful. We will provide you with a Costs Agreement and Disclosure that outlines our legal costs and disbursements to act on your behalf.
What happens when my matter resolves?
Upon resolving your work injury damages claim all benefits including weekly payments and medical, hospital, and rehabilitation expenses associated with your injury cease.
You will be paid a lump sum for the agreed past and future economic loss. In some cases, your employer may seek that you resign from employment if you are still employed. Whilst claiming a lump sum payout may be appealable and preferential to most people it is not always the case as depending on your whole person impairment it could be more worthwhile to stay in receipt of benefits. Our work injury damages lawyers will guide you and advise you on the best possible solution based on your specific circumstances once we have spoken and obtained relevant information.
Which industries face the most serious work injury damages?
Health care/social assistance and construction industries account for the highest number of serious work injuries. Manufacturing, transportation, and retail industries follow these two industries in terms of the total number. When it comes to incident rate, agriculture, fishing, and forestry are the most dangerous industries per worker.
What are the most common injuries that can be subject to common law?
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Issa Rabaya
• Bachelor of Laws
• Graduate Diploma in Legal Practice
• Approved Legal Service Provider to the Independent Review Office
• Member of the Law Society
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