In addition to your WorkCover entitlements, you may also be able to make a common law claim for damages. This is essentially a monetary payment that a court may award to compensate for the loss, harm or injury suffered.
To bring a claim for damages, you would need to demonstrate:
That you have suffered a serious injury;
That your employer’s negligence was a direct cause of the injury; and
That you have suffered actual loss and damage as a result of the injury.
The time limit for a common law claim is 6 years from the date of the negligent act, which caused the injury. It is also important to note that if you receive damages for loss of earnings, your workers compensation claim will come to an end in addition to any Centrelink payments you may be receiving at the time.
To qualify for a serious injury, you must satisfy one of the following tests:
Under this test, your degree of impairment must be 30% or more. Both physical and psychological impairment scores can be combined to reach this value. For example, if you suffer a physical impairment of 25% and psychological impairment of 10%, then the combined value will equal more than 30%. However, it is not uncommon for a worker to be certified unfit for work and receive an impairment score of well below 30%.
This test evaluates the worker’s quality of life following the injury. The court will apply the criteria below to assess the effects of the injury and then make a determination as to whether it could be considered serious. It will also compare your injury to other seriously injured workers to determine the severity. The consequences of the injury must be ‘more than significant or at the least very considerable’. However, mental or behavioural disturbances must be ‘more than serious to severe’. Under this test, physical and psychological impairments cannot be combined.
‘Serious Injury’ as defined in the Workplace Injury Rehabilitation and Compensation Act 2013 (VIC):
- A permanent and serious impairment or loss of a bodily function; or
- A permanent serious disfigurement; or
- A permanent, severe mental or permanent severe behavioural disturbance or disorder; or
- Loss of foetus
To establish that your employer ‘failed to exercise reasonable care’, you must satisfy the following 3 elements:
1) That your employer owed you a duty of care
In every workplace, the employer has a duty of care to provide and maintain a working environment that is safe and without risk to health. Employers have an obligation to take a proactive approach in identifying foreseeable risks and to implement the necessary changes to prevent or minimise harm.
2) That your employer breached that duty of care
An employer can be deemed to have breached their duty of care by failing to take all practical and reasonable steps to keep their employees safe from harm. When determining what is practical and reasonable, a court will consider what steps a ‘reasonable person’ would take in the same circumstances and whether those steps would eliminate or minimise the risk of injury.
The risk must have also been ‘reasonably foreseeable’ meaning that a reasonable person would anticipate the risk of injury. For example, a breach could be established where an employer fails to provide a worker with adequate training or protective equipment in a high-risk environment.
3) That your injury was the result of the breach
Finally, you would need to demonstrate that your employer’s action, or failure to take action, was the direct cause of your injury. This would require proof that the injury would not have occurred had it not been for the conduct of your employer.
A court will also consider whether your actions contributed to the injury (known as ‘contributory negligence’), which could minimise your employers liability and reduce the amount of damages available. Contributory negligence could be established where an employee was not following procedure at the time that the injury occurred.
Loss and Damage
A seriously injured worker in Victoria can make a claim for loss of earning capacity, loss of enjoyment of life and medical expenses. Importantly, if you succeed in a claim for economic loss, you will automatically succeed in a claim for pain and suffering.
An amount awarded for economic loss will also be reduced by the amount of weekly entitlements previously received.
Loss of Earning Capacity
To be compensated for a loss of earning capacity as a result of your injury, WorkSafe would need to determine that your permanent loss of earning capacity was 40% or more. This is assessed by comparing your ‘after injury earnings’ with your ‘without injury earnings’.
‘After injury earnings’ is the greater amount of the gross annual income you have earned or have been capable of earning. ‘Without injury earnings’ is the gross annual income you would have earned or would have been capable of earning had the injury not occurred. The income earned within the period of 3 years before the injury to 3 years after the injury will most accurately determine your earning capacity. You would then need to demonstrate that, regardless all reasonable attempts made to participate in rehabilitation and undertake alternative employment, you have been unable to earn more than 60% of your earning capacity.
A claim for economic loss cannot be less than $56,650 or in excess of $1,275,570.
Loss of Enjoyment of Life
After suffering a serious injury at work, the most challenging aspect is often the inability to carry out your everyday activities. Also known as ‘general damages’, compensation for loss of enjoyment of life may be available where your injury has affected your ordinary activities.
A claim for pain and suffering cannot be less than $54,730 or in excess of $555,350.
Typically, the following areas will be taken into consideration:
- Cognitive function;
- Self-care capacity;
- Ability to perform household duties;
- Recreational activities;
- Social activities;
- Sexual life; and
- Enjoyment of life.
As it can be difficult to place a monetary value on such matters, a court will often refer to the following when determining the amount of money required to compensate a person for pain and suffering:
- The workers pre-injury lifestyle;
- Deprivation of enjoyment of life;
- Psychological distress;
- Previous awards;
- Reasonable needs;
- Community standards.
A serious injury certificate can be issued in one of four ways:
- Following an assessment, your injury is deemed to be serious if the degree of impairment is 30% or more;
- WorkSafe or the insurer can choose to provide the worker with a serious injury certificate even though the degree of impairment is less than 30%;
- Where WorkSafe or the insurer fail to respond to the claim within the prescribed time limit, then the injury is deemed to be serious; or
- By leave of the court
Importantly, an application cannot be made for 18 months after the date that the injury occurred. This allows for the injury to stabilise, providing a more accurate assessment when determining the long-term effects.
A serious injury claim is commenced out of court by serving prescribed information on WorkSafe Victoria and on your employer. The prescribed information is as follows:
- Form A – which sets out the injuries being claimed
- Affidavit in support of Serious Injury Application-this is sworn evidence
- Proposed Statement of Claim;
- Taxation returns for 3 years preceding the injury and for 3 years postdating the injury;
- All supporting medical evidence, such as reports by treating GP, specialists, surgeons etc; and
- All other evidence such as non-medical expert evidence and lay evidence i.e. affidavits of witnesses etc.
Once an application for serious injury has been lodged, WorkSafe must grant or reject the claim within 120 days. If approved, both parties will be required to attend a conference which will aim to facilitate a resolution and minimise the need for court intervention.
How Long Will It Take?
Unfortunately, there is no exact time frame for a common law claim. Typically, the initial conference will take place between 6-12 months after lodging a Notice of Claim. This may be delayed if your medical condition changes. Many claims are resolved during the conference phase where a series of ‘offer and counter-offers’ are made. Where an agreement cannot be reached, the matter will proceed to trial, which can take between 6 months to 2 years to commence.
If you believe you may have a serious injury claim, it is critical that you seek legal advice as soon as possible. Our friendly and approachable lawyers will identify your needs and provide you with up-to-date and carefully considered advice based on your individual circumstances.
Our priority is to ensure that your matter is resolved as quickly and efficiently as possible. An out-of-court settlement is ideal however, where a fair agreement cannot be reached, we will assist you in further pursuing your rights in court.
Our extensive experience in litigation will ensure you are provided with expert knowledge and strong representation throughout the entire process.
Call us on 9534 3002