A worker who is injured in circumstances involving the An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. of the employer, or of fellow workers for which the employer is liable, may have a claim for (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages.. There may also be a claim against a third A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. such as the occupier of premises where a worker is injured.
An action for common law damages is based on the negligence of the employer or of fellow workers, or even of a third party.
An employer owes all employees a duty to take reasonable care for their safety. If there is failure to observe the standard of care required in the circumstances, the employer is liable to them for most damage that results. Fellow workers also owe a An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. to each other. A worker who is injured by a fellow worker’s negligence may be able to To take legal action in a civil case. both the employer and the fellow employee for damages. An employer is liable for the negligence of the workers committed in the course of their employment, even where the employer is not personally at fault.
The usual factors that go towards an employer’s failure to take care can be classified as follows:
- failing to provide safe plant and equipment;
- failing to provide safe premises and safe means of access to the premises;
- failing to provide competent fellow workers; and
- failing to provide a safe system of work.
The last, broad category covers the organisation of the process or work. It can involve a single incident or incidents over time (e.g. repetitive work).
Negligence may include a failure to:
- provide adequate or competent staff to assist;
- instruct the worker or the fellow workers in the operation of their part of the process; or
- properly warn of the dangers involved.
There is no absolute Legal responsibility, enforced by civil or criminal courts. on the part of an employer. The important question is whether the employer has taken all reasonable precautions available in the circumstances to eliminate a foreseeable risk of injury.
Breach of statutory duty
Breach of Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. duty is discussed generally in Chapter 10.1: Negligence and injury. Whether the employer may have breached a safety duty imposed by Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. A document that sets out what a person wants to happen to their money and other property after they die. often form an important part of a worker’s action for negligence. In Victoria, working conditions are regulated by a number of Acts and regulations. Breach of this legislation generally leads to the employer being prosecuted for an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). and probably being liable to pay damages to an injured worker. A number of Victorian Acts and regulations deal with employers’ duties to their workers, including the Occupational Health and Safety A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic).
A common (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. is that of contributory negligence (see ‘Establishing liability’ in Chapter 10.1: Negligence and injury). It would be difficult for the employer to prove such negligence if there has been no disobedience, no departure from usual practice and no awareness of danger by the worker. Also, the employer must, when taking reasonable care for the safety of workers, have regard to the risk of injury because of some inattention or misjudgment by the worker.
In almost all cases where a worker is injured in circumstances giving rise to a common law action for damages, there is also a right to workers compensation. It is now not necessary for a worker to make a choice whether to receive workers compensation or damages.
The right to obtain common law damages in respect of a workers compensation injury is vastly different, depending on when the worker was injured.
Injuries before 1 July 2014
Legal advice should be sought for such claims.
Injuries on or after 1 July 2014
Damages can be obtained if the injury is a ‘serious injury’. See generally sections 324–328 and 335 of the WIRC Act.
A worker must generally wait for 18 months after an injury before applying for a ‘serious injury’ certificate, although special provisions (s 357) allow terminally ill workers to have their claims for damages heard speedily.
In particular, an injury (excluding any reactive psychiatric or psychological injury) is Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. to be ‘serious’ if permanent impairment is more than 30 per cent under the AMA Guides (4th edn) (see ‘Non-economic loss (impairment benefit)’, above).
Otherwise, By authority of, or in accordance with, or as directed by, some court order or legislation. section 325(1), ‘serious injury’ means:
- permanent serious impairment or loss of body function;
- permanent serious disfigurement;
- permanent severe mental or permanent severe behavioural disturbances or disorder; or
- loss of a foetus.
A claim cannot be made for damages for loss of earning The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. unless there is a loss of earning capacity of 40 per cent or more. This is the case unless the injury is ‘deemed serious’, which is 30 per cent permanent impairment.
A worker can choose to claim damages for either pain and suffering or loss of earning capacity, or both.
However, if a worker claims compensation for the relevant injuries under the lump sum provisions of sections 211–221, then no claim can be made for damages for pain and suffering for these injuries (s 328(3)) until the lump sum claim is concluded.
There are also minimum and maximum limits on the (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. of damages:
- monetary loss damages can only be awarded between the sums of $64 930 and $1 461 900;
- pain and suffering damages can only be awarded between the sums of $62 710 and $636 470;
- damages for wrongful death (s 135C) can be awarded to a maximum of $1 063 560.