Negligence Claims    

Can I sue my employer for my injuries?

In our court system, you can claim lump sum compensation (known as 'damages') if you have been injured as the result of the fault, carelessness or 'negligence', of someone else. Damages claims are quite separate to WorkCover claims and are made through the courts under something called common law.

You may be entitled to receive lump sum damages if your injury has been caused or made worse by the carelessness of:

• Your employer or supervisors
• Your co-workers (your employer is responsible for them)
• Any other person

Or by:

• Faulty machinery
• An unsafe workplace
• An unsafe system of work
• Poor medical treatment

Whether or not you can sue for damages will also depend on:

• The date and extent of your injury
• The existence and degree of negligence by any other person
• The place where the injury occurred
• Whether the claim is against your employer or some other person

How are lump sum damages decided?

If your injury has been caused through the negligence by your employer or at your workplace, damages are payable for lost income and pain and suffering.

Generally, you can claim:

• Any past medical and other expenses incurred as a result of the treatment of your condition
• Future medical expenses
• Lost earnings up to the date of trial or settlement and for the rest of your working life
• Lost earning capacity
• The commercial cost of assistance around the home, in the garden and nursing care (even if that assistance is being provided voluntarily by relatives and friends)
• The cost of changes to your house or the purchase or rental of special equipment
• A payment for pain and suffering and loss of enjoyment of life
• A payment for any loss in life expectation or reduced life expectancy

Can I sue my employer for any kind of injury?

You are generally only permitted to sue your employer if you have a ‘serious injury’. Under the WorkCover legislation this means any one of the following:

• Serious permanent impairment or loss of body function
• Permanent serious disfigurement
• Severe permanent mental or behavioural disturbance
• Loss of foetus
• An injury that results in a 30% impairment under the relevant guides, usually the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

What time limits apply to negligence claims?

Strict time limits can apply and complex applications must be prepared before the expiry of the following time limits:

• If you were injured after 20/10/1999:
  You can claim damages for negligence within 6 years of the date of injury by filing a complex legal application

• If you were injured between 12/11/1997 and 19/10/1999 (inclusive) and are covered by WorkCover:
  You cannot generally claim damages against your employer or any other party

• If you were injured through the negligence of another person prior to 12/11/1997, and your incapacity becomes known after this date:
  You have three years from the date of becoming aware of the nature and severity of your medical condition to begin legal action, by filing a complex legal application.