When you have sustained a workplace injury, establishing employer negligence is only necessary when you file a WorkCover common law claim for damages.
As we discussed in one of our previous posts, filing a WorkCover statutory compensation claim under the “no-fault” scheme is always the first step in claiming compensation for a work related injury in Queensland. After the statutory compensation claim has been lodged and accepted by WorkCover (or the relevant self-insurer) and a Notice of Assessment issued, only then can you file a WorkCover common law claim.
The elements of employer negligence
Establishing employer negligence (or liability/fault) is critical to making a WorkCover common law claim for damages as you are not entitled to damages where your employer was not negligent. In order to successfully establish employer negligence, you must satisfy the following elements:
- That your employer owed you a duty of care;
- That your employer breached that duty of care; and
- That the injury you suffered was a result of the breach of duty.
Employer duty of care
An employer’s duty of care generally extends to ensuring, so far as is reasonably practicable, that the health and safety of their employees at a workplace (including contractors, sub-contractors, volunteers and labour hire personnel) is not put at risk from work carried out as part of the conduct of the business. This is set out (and elaborated on) in section 19 of the Work Health and Safety Act 2011 (Qld). In addition to setting up safe working environments, the employer’s duty of care also includes properly instructing employees on safe practices in the workplace and how to use machinery and equipment properly.
Establishing that there was a breach of the duty of care is done by proving that the employer failed to do what a reasonable person would have done in the circumstances. Again, it comes back to this question of ‘reasonable foreseeability’ – employer negligence can usually be established where it should have been reasonably foreseeable by the employer that an injury could result from their conduct, whether that be an act or failure to act.
In some circumstances, it may be very clear that there has been a breach of duty of care, to ensure health and safety at a workplace such as, where employees are not given protective eyewear when welding or if a machine is not fitted with a proper guard and so on, however there are other less obvious situations where a court may also find an employer has breached their duty of care, for instance, where an employer has failed to supervise their employees to ensure safe work guidelines are being properly implemented.
Finally, the injury must be a result of the employers failure to meet the obligations of their duty of care. It is not enough to show there was an act or omission by an employer and that there was a workplace injury. The act or omission must have caused or materially contributed to the workplace injury. It is very important that evidence and symptoms also support your claim for damages.
Types of injuries sustained due to employer negligence
A workplace injury is not limited to simply physical symptoms on the employee, but may include psychiatric injury or the aggravation of a pre-existing injury or condition, such as the quickened onset of symptoms of degenerative osteoarthritis; in this situation however, only the work related component will be compensated for at common law.
Further, a court will also consider the extent to which your own actions contributed to the injury, and will deduct a percentage from your damages lump sum accordingly. This is referred to as ‘contributory negligence’.
As the grounds for employer negligence contain inherently legal questions, it is always best to seek the advice of a workplace personal injury lawyer before commencing your claim. If you would like to discuss employer negligence or anything related to workplace injury, contact our offices for a free consultation with one of our workplace personal injury lawyers on (07) 3252 0011 or through our general enquiries page.
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