Can an Employer be Sued for Negligence
We often receive enquiries from injured workers asking whether they can sue their former employer in relation to their work related injuries. The short answer is yes, you can – but there are certain restrictions which apply. This type of claim is called a claim for Work Injury Damages.
A claim for Work Injury Damages can be made if it can be shown that your injury resulted from the negligence of your employer. In order to make such a claim, the following provisions apply:
1. Your level of whole person impairment must be at least 15%.
2. Your entitlement to compensation is restricted to damages for economic loss only.
3. You must first have made a claim for, and received payment of, lump sum compensation for permanent impairment and (if applicable) pain and suffering.
4. In calculating your future economic loss, your entitlement is assessed to the lesser of the statutory retirement age, or your life expectancy.
5. Payment under the Work Injury Damages scheme is final. You will receive no further future payments of compensation in relation to your injury after settlement.
6. As part of a Work Injury Damages settlement, you must “repay” all weekly compensation already paid by the insurer (further information provided below).
7. There is a time limit of three years from the date of injury for the making of a claim for Work Injury Damages, though this limit can be extended in certain circumstances.
What damages can be claimed?
A Work Injury Damages claim is an action against the workers compensation insurer of your former employer for damages representing:
1. Past economic loss – the earnings which you have lost between the date of your injury and the date the proceedings commence or the matter is heard in Court;
2. Past lost superannuation, at a percentage of not less than 11%;
3. Future economic loss – the earnings which you will lose between the date proceedings commence and your expected retirement age; and
4. Future lost superannuation, at a percentage dependent on the number of years from the date proceedings commence or the date of the hearing, to retirement.
Damages claimable in a Work Injury Damages claim do not include medical expenses, or lump sum compensation.
How are damages in a Work Injury Damages claim calculated?
Your past and future economic loss is calculated using the nett weekly amount you would have earned, had you not been injured. This amount is capped by section 34 of the Workers Compensation Act 1987 (the statutory maximum weekly compensation amount). This amount increases slightly every six months.
In relation to your past loss, the workers compensation insurer will receive an offset (referred to as the “payback” figure) for the nett amount of weekly benefits paid to you, up to the date of settlement.
If you have received Centrelink benefits during the same period, those benefits will have to be repaid to Centrelink out of any settlement you receive.
In relation to your future loss, the Court will have regard to what your career trajectory would have been if you had not been injured. If you were likely to have advanced your career via promotion, or moved into another career, we will need to obtain evidence to prove to the Court, on the balance of probabilities, that this would have occurred.
Calculating your future economic loss is done by utilising the personal injury discount tables. These are tables that reduce future losses down to present day values. These tables account for the fact that, had you not been injured, you would not have received all of your future earnings in one lump sum – you would have earned it over a number of years into the future.
In NSW, the Courts require that we use the 5% multiplier.
As an example, if your nett loss is $1,000 per week, and you have 35 years until you reach the statutory retirement age of 67, your future loss is calculated by the sum $1,000 x 876 (the multiplier for 35 years). It is not calculated by the sum $1,000 x 52 weeks x 35 years.
In all assessments of damages for personal injury, the Court will apply a standard 15% discount for contingencies (“vicissitudes of life”) to the sum assessed as future economic loss. This discount is based upon the principle that life is not always certain and unpredictable events can affect future income – ie. sickness, accident, unemployment, industrial disputes can mean a person may not work to the age of 67.
This discount can be varied to take account of certain circumstances – ie. if you had a reduced life expectancy and therefore a reduced capacity for future earnings as a result of an illness (say, cancer, or a different illness) unrelated to the injury, the discount would be increased.
The information in this blog is not intended to be legal advice, and should not be taken as such. If you have any queries, contact us now on 1300 026 875 to discuss your specific circumstances.
All initial consults with our firm are free of charge and all of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by IRO and therefore free to all workers covered by the NSW workers compensation scheme.