Can I claim damages for pain and suffering under WorkCover? < Back

Can I sue for damages?
A claim for damages (also called a Common Law claim) is usually the only way that substantial compensation can be obtained for the full effects of your injury. In a claim for damages, you are entitled to claim for the pain and suffering you have and will experience. You may also be entitled to claim for the income loss you have and will sustain because of your injury. Claiming economic loss damages is only permitted in some cases. In order to succeed in this type of claim, you must establish that your employer or some other person was negligent (i.e. breached a duty of care to you), and that as a result you have suffered a serious injury.

What must I prove in a claim for damages?
Claiming damages can be a very complicated process. If you are injured at work, the claim will be made under the WorkCover legislation. If you are injured whilst traveling for work, but it is a transport accident, it is likely to be made under the Transport Accident Compensation (TAC) legislation. If you are injured away from work for example, while you are on a break, the claim may be made under the General Civil liability legislation. Under WorkCover, there are three elements that you must establish to obtain common law damages. These elements are:
  • You are suffering from a "serious injury"

  • Some other person was negligent

  • You have suffered loss and damage as a result.
Establishing all three elements is essential to a claim. These elements are best understood as three gates that you must pass through to succeed. It is important to remember that you must pass through all gates. This means that even if you have the key to gate number two or three it is of no use, unless you can pass through gate number one "the serious injury gate". Many workers are injured in negligent circumstances and suffer loss but they can only succeed in claiming damages if they can demonstrate that they have suffered a "serious injury". If you wish to understand more about the definition of a serious injury, click here.

At WORKFORCE LEGAL we are experts in establishing that claimants have suffered a serious injury.

When can I claim economic loss damages in a common law claim?
The WorkCover legislation only permits a claim for economic loss damages (income loss due to injury) in strictly defined circumstances. It is only possible to claim these damages where:
  • You are certified as having a serious injury under the 'quantitative test' (i.e. an impairment rating of 30% or more), OR

  • You can show that your earning capacity has been permanently reduced by at least 40 %. This involves a very complex assessment of a claimant's earnings and earning capacity 3 years before injury and a claimant's earning capacity (not just actual earnings) 3 years after injury.
If your claim is within either of the circumstances set out above, you will be able to claim damages for both pain and suffering and economic loss. If you are not within the circumstances, your claim may be restricted to a claim for pain and suffering damages only. At Workforce Legal we are experts of establishing the true extent of an injury on a person's ability to earn income. In order to obtain the best possible result of claim for damages, it is important to carefully research and document the financial effects of an injury on a claimant.

How are damages calculated?
Damages are calculated according to complicated rules, which vary according to the basis on which your injury is certified as a serious injury. There are two components of damages.
  • Economic loss damages
    These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law at $1,076,580.00 but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages. (Click here for more information).

  • Pain and suffering damages
    These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in an extreme case is $468,720.00. (Click here for more information)
At WORKFORCE LEGAL, we have extensive experience in preparing and successfully pursuing applications for serious injury certification. If your injury has been caused through the negligence of another person, contact us for an obligation free consultation about a claim. As time limits apply to these claims, you should contact us immediately.



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