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Work Injury Damages Claim Guide

Table of Contents

What is a Work Injury Damages claim?

A work injury damages claim, often referred to as a common law claim, entails seeking a lump sum compensation for injuries sustained in the workplace. This claim is applicable if your work-related injury is a result of your employer’s negligence or failure to establish a safe working environment. This negligence might involve the absence of necessary safety equipment, disregard for hazards, or inadequate training for using machinery. The consequences can encompass both physical and psychological injuries, financial hardships, and even social isolation.

Key elements to establish a work injury damages claim

To make a workplace negligence claim, you must prove the following:

  • Your employer owed you a duty of care.
  • Your employer breached that duty of care.
  • The injury you suffered was a direct outcome of that breach.

You’ll also need to see a doctor who will assess your ability to work and provide you with a Whole Person Impairment (WPI) rating. You become eligible for a Work Injury Damages (WID) lump sum if:

  • Your injury resulted from employer negligence.
  • Your WPI is at least 15%, and this assessment has been accepted by either the insurer or the Personal Injury Commission.

Entitlements under a work injury damages claim

If you’ve sustained an injury due to workplace negligence, you might be entitled to coverage for lost wages, medical expenses, and costs associated with rehabilitation. This coverage can also extend to lump sum compensation for your degree of permanent impairment and your employer’s negligence.

Can you sue your employer for workplace injuries?

Yes, you can sue your employer for a Work Injury Damages lump sum payment if you meet the eligibility criteria and have a WPI of 15% or more. This applies when your injury directly results from your employer’s negligence, such as failing to address bullying that leads to psychological injury.

Understanding employer duty of care in the workplace

Duty of care refers to your employer’s obligation to ensure the safety of their employees. This entails implementing necessary precautions, like providing superannuation or having workers’ compensation insurance. These measures safeguard workers and encompass their health and safety within reasonable limits, excluding deliberate and dangerous actions.

Pursuing a psychological injury claim due to workplace negligence

Indeed, you can file a negligence claim against your employer for psychological injuries resulting from their breach of duty of care. Employers are responsible for creating a respectful and harassment-free environment. To make a psychological injury claim, you need a diagnosis from a psychiatrist, which can be obtained with a referral from your GP.

Work injury damages claim time limit

Prompt reporting of your injury is advised, ideally within six months. While the official time limit is three years, exceptions exist. If uncertain about missed deadlines or injury development, consult a workers’ compensation lawyer in Jameson Law.

The process of work injury damages claim

Initiating a claim for work injury damages in NSW involves several steps:

  1. Your work related injury must meet the threshold of at least 15% whole person impairment, and that WPI must be accepted by the insurer.
  2. Providing relevant claim details to the employer and insurer, including:
  • When the injury happened.
  • Details of your injury and impairment.
  • Details of any previous injury, or any pre-existing condition or abnormality.
  • Details of any previous injury claims.
  • Details of the economic loss you suffered, that you are claiming as damages.
  • Details of the alleged negligence of your employer.
  • The amount you’re claiming and any supporting documentation and information.
  1. If liability is accepted by the insurer, an offer of settlement will be made. If disagreement persists, you may progress to the Pre Filing Statement (PFS) stage. A PFS sets out details of your claim and the evidence you will rely on to establish or support your claim against your employer.
  2. The Defendant responds with a Pre-Filing Defence (PFD) within 28 days setting out their determination as to liability, and their response and evidence that they will rely upon, or mediation in the Personal Injury Commission can be pursued if the insurer failed to reply within 28 days.
  3. If no resolution is reached at mediation, the claim proceeds to the District Court.

Legal fees for work injury damages claim

Before starting a work injury damages claim, you should seek independent legal advice.

Legal costs for work injury damages claim in NSW are specified in the Workers Compensation Regulation 2016. While regulated costs exist, some firms, including ours, have separate costs agreements through which we are entitled to charge more than the regulated costs under the Regulation. We maintain reasonable costs and a ‘no win no fee’ arrangement, ensuring payment only upon successful claims.

We will provide you with a Costs Agreement and Disclosure that outlines our legal costs and disbursements to act on your behalf.

Resolution of the claim

Upon resolving your work injury damages claim all benefits including weekly payments and medical, hospital, and rehabilitation expenses associated with your injury cease. You will receive a lump sum payment for the agreed past and future economic loss. In some cases, your employer may seek that you resign from employment if you are still employed.


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