In these circumstances both an employer and a non-employer i.e. the scaffolding company and the head builder may be liable for breach of their duty of care and be responsible for payment of compensation.
Negligence by a Non-employer
For instance, if the injured worker is a bricklayer it is likely that they will be working under the instruction or alongside a non-employers such as the head builder, scaffolding company, plumbers and the like. To varying degrees the non–employers owe a duty of care to ensure the safety of others whilst on the building site.
Most importantly, the head builder as occupier of the site owes all entrants a duty of care to ensure the premises is safe for access by trade’s people.
If a bricklayer is on site and falls through a faulty scaffold erected by a scaffolding company it is likely that the scaffolding company may have breached their duty of care and will be found negligent. The head builder may also be liable for allowing people onto the scaffold because they should have been aware it was unsafe.
Claim against an Employer
A claim against the employer is a Work Injury Damages claim pursuant to the Workers Compensation Act 1987, you must establish an entitlement to damages using the two limb test we have discussed in Part 1 and 2 of this series of articles.
Damages are payable for loss of income and loss of superannuation only.
Claim against a Non-employer
A claim for damages against a non-employer is pursuant to the Civil Liability Act 2002.
The type of compensation payable under the Civil Liability Act is different to a Work Injury Damages claim.
In addition to the loss of income and loss of superannuation you can also claim lump sum compensation for pain and suffering, future medical treatment and care and assistance. The amount payable in this type of claim is usually 30% to 50% greater than the amount received in a Work Injury Damages claim.
It is important to always consider if such a claim exists as you will receive a lot more compensation if you make a successful claim against a non-employer.
Apportionment of damages
If both an employer and a non-employer are liable to pay compensation to an injured worker the amount payable is apportioned between each based on the application of S.151Z of the Workers Compensation Act. This is a complex section and has been the subject of many decisions of the NSW Court of Appeal.
A Court is required to assess damages payable under a Work Injury Damages claim (say $350,000) and then assess damages payable under the Civil Liability Act (say $650,000).
The Court apportions responsibility between the employer and non-employer based on each party’s responsibility for the injury.
For example if the Court finds each is 50% liable then the Court would award 50% of the amount assessed under Work Injury Damages and 50% of the amount awarded under the Civil Lability Act.
So using the figures above the injured worker would receive $175,000 + $325,000 = $500,000.00.
This is somewhat unfair as the worker receives less money simply because the employer was also negligent. Why shouldn’t an injured worker receive the entire $650,000.00 payable as a result of the non-employers negligence?
These are complex legal issues that should only be dealt with by an accredited specialist in personal injury law.
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