If you have a work related injury which resulted from your employer’s negligence, there are certain circumstances in which you may sue for modified common law damages. These are known as ‘work injury damages’.
What are work injury damages?
The workers compensation legislation in NSW allows workers with a work related injury to claim work injury damages.
In NSW, most workers with a work related injury are limited to being able to claim work injury damages for past loss of earnings and future loss of earning capacity only. This type of compensation is often referred to as modified common law damages.
A work injury damages settlement extinguishes all further entitlements to workers compensation benefits (including weekly payments, and medical, hospital and rehabilitation expenses) associated with that injury.
The amount of weekly payments that has already been paid to the worker may have to be repaid out of the settlement amount.
The amount of damages payable can also be reduced if the worker's own negligence contributed to the injury.
To claim work injury damages, the following criteria must be met:
- The work injury must be the result of employer negligence.
- You must have at least 15 per cent permanent impairment (assessed by a permanent impairment assessor with qualifications, training and experience relevant to the body system being assessed), 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. This must take place before a work injury damages claim can be settled.
Some work injury damages claims may result in court proceedings. Court proceedings for work injury damages must begin within three years of the injury date, unless you have the court’s approval.
If you would like to claim for work injury damages, you can do so by writing to the insurer and supplying them with the following information:
- what the injury is and any impairments arising from it
- when the injury happened
- any previous injury or condition which has caused or may have caused part of an impairment (including any related compensation)
- previous employment which may have caused the injury
- alleged negligent acts of the employer and any supporting documentation
- the economic loss being claimed as damages and any supporting documentation.
A report from a permanent impairment assessor must be included in your claim. Learn more about what the report should contain.
Once the permanent impairment has been agreed by all parties, or determined by an approved medical specialist, and no further appeals have been made, the insurer has one month to determine liability for your claim.
If the insurer requires more information from you, they must tell you within two weeks of receiving the above information and explain what they require in order to make a liability decision.
Once the insurer has received the additional information they may take up to two months to determine liability.
If the insurer has accepted liability they must make an offer of settlement that sets out the amount of damages or a way to determine this amount.
If you do not agree with their offer of settlement, you may consider starting mediation or court proceedings.
Court proceedings must start no later than three years from the date of injury.
Before you can start mediation or court proceedings for work injury damages, you must serve a pre-filing statement setting out the particulars of the claim, and the evidence you will rely on to establish or support the claim on your employer or the insurer.
In most cases, the claim must be referred for mediation in the Workers Compensation Commission before starting court proceedings.
The Workers Compensation Commission will attempt to mediate and reach settlement through discussion with all parties.
If an agreement cannot be reached, work injury damages claims are most commonly heard in the District Court.
Legal advice and costs
You should seek independent legal advice before beginning a work injury damages claim.
If you are unsure how to locate a suitable legal representative, you can contact:
- the Law Society, or
- the Workers Compensation Independent Review Office (WIRO) which has a list of approved legal providers.
It’s common for work injury damages matters to settle 'inclusive of costs'.
In practical terms, this means that legal costs are deducted from your settlement amount.
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, your solicitor may ask you to enter into a separate costs agreement through which they may be entitled to charge more than the regulated costs under the Regulation. If you are uncertain as to what you should do, seek the advice of the Law Society of New South Wales.
If your work injury damages claim is unsuccessful, you can continue to receive workers compensation under the statutory scheme (if you are eligible) but you are likely to be liable for court costs incurred during the work injury damages claim.
Sometimes there can be disputes about compensation. If there’s a dispute, there’s help available. Our workers compensation disputes section has more information on how we can help.