Can I sue my employer for my injuries?
In addition to your workers compensation rights, you may be able to pursue your employer in a claim for negligence. This is if your injury has been caused or made worse by the consequences of:
- Your employer
- Your co-workers (your employer is responsible for them)
- Any other person
- 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 seriousness of your injury (you require an assessment of 15% or more Whole Person Impairment (WPI) as assessed under the WorkCover Guides for the Evaluation of Permanent Impairment).
- The existence and degree of negligence by any other person
- The place where the injury occurred
- Whether the negligence claim is against your employer or some other person
How are work injury damages decided?
If your injury has been caused through the negligence by your employer or at your workplace, damages are payable for lost income (both past and future) together with lost superannuation.
It does not include a lump sum for pain and suffering, or a payment for past or future medical expenses.
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