If you suffer an injury at work in Queensland – physical or psychological – you are entitled to claim benefits through Workcover.
You don’t need to prove anyone’s fault to be eligible. But to obtain additional compensation, or ‘damages’, you must bring a common law claim.
Some work related injuries are due to someone’s fault or negligence – such as an employer’s failure to provide a safe workplace or the acts of a third party who have no connection to your employer. A compensation claim for an injury where negligence is involved is separate and in addition to your entitlements under the WorkCover system.
There are 3 main categories of damages sought in a common law claim:
- Pain and suffering, or general damages. This is compensation for the pain and suffering you have endured and will continue to endure, and your loss of enjoyment of life;
- Past loss of earnings and future loss of earning capacity. This is compensation for wages lost because you have been unable to work, and/or are unable to work into the future.
- Past and future medical expenses.This is compensation to cover the costs of treatment required as a result of the injury.
How can I prove it was their fault?
Over the years, Courts have broken down negligence into various elements. Some of these are:
- The Defendant must have owed you a duty of care
- It is almost always the case that a duty of care was owed. Your employer has a duty to provide you with a safe place of work which includes ensuring work systems and equipment are safe.
- The Defendant must have breached their duty of care
- Should a reasonable employer in the Defendant’s position have foreseen that their conduct or inaction involved a risk of injury to you?
- For example an employer’s failure to provide manual or mechanical assistance with a heavy lifting task would constitute a breach the employer’s duty of care
- The Defendant’s breach must have caused your injury
- This relies on medical opinion to confirm that you have suffered an injury and that it is related to the Defendant’s negligent conduct.
- A medical report is usually obtained from an independent specialist to confirm the injury and that it relates to the work activity.
How long have I got to sue?
A common law claim must begin within 3 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 3 years of the onset of symptoms.
You should seek advice well before the 3 years expires, however, as preparing a case takes some time. Even if you don’t think your injury is serious, you should at least obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.
Call Stuart Macleod at Zaparas Lawyers Queensland on 07 5675 1300 for a free initial consultation in our Brisbane CBD or Upper Coomera office. Alternatively we can travel to you.