What is a work injury damages claim?

A claim for work injury damages (also known as common law damages) arises when an injured worker (plaintiff) prosecutes a claim in against their employer for injuries sustained during the course of their employment.

An employer’s duty of care

All employers have a duty of care to ensure they take “reasonable care” to avoid their employees suffering a foreseeable risk of injury. An employer’s duty of care is non-delegable, which means they cannot delegate that duty to someone else. They are directly responsible for ensuring their employees are provided with a safe working environment to prevent injuries from occurring. The buck stops with the employer.

What does a plaintiff need to establish to succeed in a work injury damages claim?

In order to successfully prosecute a work injury damages claim against the employer, a plaintiff will need to establish, ultimately to the satisfaction of the court, that:

(a) The injury sustained by the plaintiff occurred during their employment; and

(b) The plaintiff’s level of impairment resulting from the injury sustained, reaches or exceeds a 15% whole person impairment threshold: and

(c) The injury was caused or materially contributed to by the employer’s negligence.

What damages may be claimed in a work injury damages claim?

The following damages can be claimed in a work injury damages claim:

(a) Any past economic loss (wage loss) calculated from the date of the injury up to the time of any settlement or judgment. These damages include the recovery of all wage loss, beyond the statutory benefits a plaintiff may have received from the workers compensation insurer.

(b) Past superannuation noting that an injured worker will not receive the benefit of superannuation payments whilst they are off work.

(c) Future economic loss (wage loss). These damages can be calculated up to retirement age taking into consideration the injured worker’s most likely future circumstances but for the injury and the available medical evidence relating to the plaintiff’s future earning capacity.

(d) Future superannuation losses.

(e) Fox v Wood damages. Plaintiffs are entitled to recover from the defendant the income tax paid in respect of workers statutory workers compensation benefits made by the employer’s insurer.

Time limits

The legislation requires plaintiffs to commence their work injury damages claim within three (3) years from the date of their injury. However, there is provision to allow a plaintiff to seek leave from the court an extension of time. It is therefore essential that, as soon as practicable, following injury, you seek the expert legal advice and representation that Brydens Lawyers can provide.

For your free, no-obligation assessment, contact Brydens Lawyers without delay on 1800 848 848 or @brydens.com.au to speak with one of our experts lawyers.

Brydens Lawyers – #WEDO workers compensation and work injury damages claims.