A worker who is injured in circumstances involving the negligence of the employer, or of fellow workers for which the employer is liable, may have a claim for common law damages. There may also be a claim against a third party 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 duty of care to each other.
A worker who is injured by a fellow worker’s negligence may be able to sue 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 liability 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 statutory duty is discussed generally in Chapter 10.1: Negligence and injury.
Whether the employer may have breached a safety duty imposed by legislation will 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 offence 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 Act 2004 (Vic) and the Occupational Health and Safety Regulations 2017 (Vic).
A common defence is that of contributory negligence (see ‘Establishing liability’ in ‘Negligence, liability and damages‘).
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 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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 deemed to be ‘serious’ if permanent impairment is more than 30 per cent under the AMA Guides (4th edn) (see ‘Non-economic loss (impairment benefit)’ in ‘Lum sums and settlements’ in ‘Workers compensation‘).
Otherwise, pursuant to 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 capacity 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 award of damages:
- monetary loss damages can only be awarded between the sums of $67 430 and $1 518 180;
- pain and suffering damages can only be awarded between the sums of $65 120 and $660 970;
- damages for wrongful death (s 135C) can be awarded to a maximum of $1 120 960.