Significant compensations can be obtained for workplace injuries. A person is entitled to claim benefit for the injuries sustained. One of the benefits that can be claimed is ‘work injury damages’ known as Common Law Damages. A person is also entitled to claim for the loss of income or for the pocket expenses incurred owing to the injury. Lost superannuation benefits or medical expenses can be claimed through Common Law Damages provided the other party or the employer was negligent, resulting in a serious injury of the claimant.
There are different legislations regarding Common Law Damages in all the States and Territories. In New South Wales (NSW) the laws concerning Common Law Damages are governed by the Workers Compensation Act 1987 (the Act), the Workers Compensation Regulation 2010 and the Workplace Injury Management and Workers Compensation Act 1998.
Who can make a Claim?
To claim for workplace injury damages, the injured person must be established as a worker under the purview of the Act and must have sustained a workplace injury in NSW. Further the work injury must be as a result of the negligence of the employer and the injured worker must have at least 15 per cent permanent impairment assessed by a specialist. The injured worker has to commence proceedings for a Workers Compensation Claim within 3 years from the date of injury. Thereafter, the claim will become statue barred.
Prior to the settlement of the workplace injury damages, all lump sum entitlements for permanent impairment must be met.
Pain & Suffering and Loss of Amenities
On or before 19 June 2012, an injured worker had the right to claim for ‘pain and suffering’ payments as per Section 67 of the Act provided there was 10 per cent or more whole person impairment was present. Subsequent amendments to the Act, has seized the right to make such a claim. According to the amended Act a permanent impairment is an injury that cannot be cured completely, and continues to cause pain and restriction of movement.
Furthermore, the amended Act confers that if a person suffers from 10 per cent or more or 15 per cent or more of permanent impairment in cases of physical injury and psychological injury respectively, then the person is entitled to a lump sum payment.
Past and Future Loss of Income
Under Section 151G of the Act, an impaired person is also entitled to claim Common Law Damages for the past economic loss suffered due to the loss of income or can claim for future loss that will be suffered owing to the incapacity and inability to earn.
In a situation where an injured worker is unable to look after own self; and such worker is being looked after either by the family members or by paid professionals, then such professionals are paid out of the damages awarded. The injured worker is completely dependent on the family members or on the professional for the rest of the life.
Past and Future Medical & Rehabilitation Expenses
An injured worker is entitled to a reasonable medical and rehabilitation expenses which includes Expenses incurred towards medical treatment (including doctors and specialists);
- Expenses incurred towards hospital services;
- Expenses incurred towards ambulance services;
- Expenses incurred towards rehabilitation like physiotherapy; and
- Any other related expenses.
Out of Pocket Expenses
These are the expenses incurred by the injured person as a consequence of the injury, including expenses to travel for medical purpose, or on crutches.
Loss of Superannuation Entitlements
If a person has lost the superannuation benefits due to workplace injury, it can be claimed through the Common Law Damages provided the other party is negligent. In cases where Common Law Damages can be pursued and you are entitled to get economic loss damages, you can claim lost superannuation as part of your damages. The lost past contributions are calculated like lost future contributions. The lost income earned by these contributions within the superannuation fund will also be calculated and claimed.
This article is aimed to summarise all the benefits and entitlements received for Common Law Damages under the NSW laws. If you have sustained a workplace injury, feel free to contact our team of experts at Owen Hodge Lawyers.