See the latest awards we have won on our Industry Awards page here

Search

Work Injury Damages Explained: Complete Guide

An employer can be found negligent if they have breached their duty to their employee’s to provide a reasonably safe workplace whilst at work.

Work Injury Damages refers to the amount of money a worker can claim as compensation for injuries sustained as a direct result of their employers negligence. A Work Injury Damages claim must be made within 3 years from the date of accident however a Court may grant leave to proceed after 3 years if there is a satisfactory explanation for the delay.

What Are Work Injury Damages?

Work injury damages are a once off lump sum compensation payment. The lump sum amount is payable for loss of income only. Damages also include a superannuation amount between 11% – 13% depending on the years until retirement. The injured worker is not entitled to receive damages for pain and suffering, for past or future medical expenses or care and assistance through a work injury damages claim.

What is the benefit of a WID claim?

A successful negligence claim against an employer can result in a worker receiving significantly more economic loss damages than would be recovered under the workers compensation scheme.
A WID entitles you to recover past and future wage loss, which is calculated by consideration and reference to your actual earnings, as opposed to those payable and capped under the workers compensation system. In addition to recovering the past and future loss of actual earnings, you are entitled to recover the tax paid on gross weekly compensation payments and lost superannuation benefits.

How Do I Claim Work Injury Damages?

To claim work injury damages an injured worker must first satisfy the two limbed test for damages:
Firstly, an injured worker must be able to prove through evidence that their employer was negligent, and that such negligence caused the worker to become injured.
Secondly, the injured worker will need to get a whole person impairment score equal to, or greater than 15%. An assessment of whole person impairment is conducted by a Doctor who will assess the injuries based on WorkCover guidelines used for the purpose of assessing impairment.

How do I prove my Employer was negligent?

You will need to prove through evidence that the employer was negligent. That negligence must also be a direct cause of your injury. Your lawyer will assist in obtaining the necessary evidence. For example, if your employer fails to provide a safe workplace and your employer knew, or ought to have known about hazards in the workplace but decided not to act it is likely that you will be able to establish that your employer was negligent.

Why do I need to have 15% whole person impairment?

The 15% whole person impairment test is in place to stop workers who have experienced minor injuries from suing their employer. A whole person impairment score of over 15% establishes that you have, and will continue to experience serious impairment.

It is an arbitrary threshold imposed by the Workers compensation Act and many people may only receive say a 12% WPI who have a significant injury however they will be unable to pursue a claim for Work Injury Damages as the WPI is not 15% or more.

What Happens After You Have Obtained 15% Whole Person Impairment?

The insurer takes over conduct of the claim and acts on behalf of your employer. Once your Lawyer is satisfied you have obtained 15% whole person impairment (WPI) and can demonstrate negligence (the two limbed test for Work Injury Damages set out in ‘Work Injury Damages Explained Part 1’) your Lawyer will make a claim against your employer. Your Lawyer will also send a copy of this claim to the workers compensation insurer. The workers compensation insurer is responsible for payment of any compensation (money) not the employer as the employer is covered for your claim by workers compensation.

The process of a work injury damages claim

The insurer is then required to decide if they will accept or decline your claim. The insurer will almost always deny a claim for Work Injury Damages on the basis that the employer was not negligent.

What happens if the insurer continues to dispute my claim?

If your employer declines liability your lawyer will need to prepare a statement detailing your claim, your injuries, your financial loss, and other evidence required to prove your employer was negligent. This statement will also include the amount of compensation you should receive. This is known as a Pre-Filing Statement. The insurer replies with a Pre-Filing Defence which sets out the insurer’s evidence and reasons why the claim has been declined.

What happens once the pre-filing documents have been supplied?

Your claim will then be referred to the Workers Compensation Commission, an independent tribunal that will arrange for Mediation of the dispute. Mediation is an attempt to reach an agreement with the insurer and settle the claim. Usually, around 70% of Work Injury Damages matters resolve at Mediation. If you can reach an agreement the lump sum amount for damages is usually paid within 6-8 weeks.

Any ongoing Workers’ Compensation benefits such as weekly payments or medical expenses will be stopped when the Work Injury Damages payment is made. Once your claim is finalised you cannot return for any further compensation. If no agreement is reached at Mediation your case will go to the District Court and be heard and determined by a Judge. Going to court can be risky; if you lose your claim, you may be ordered to pay the insurer’s legal costs. You should always seek the advice of an experienced accredited specialist in personal injury law when claiming Work Injury Damages.

Negligence In WPI Claims

There are a number of situations where there can be negligence by an employer and also negligence of a non-employer. A claim for injury caused by a non-employers negligence is dealt with differently from a claim against an employer.

As already discussed, a claim against an employer is known in NSW as a Work Injury Damages claim.If there is a non-employer involved this is commonly described as a public liability claim.
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. Damages are payable for loss of income and loss of superannuation only. For Work Injury Damages claims against an employer, employees are entitled to claim a lump sum amount for loss of income only. An injured worker is not entitled to any compensation for pain and suffering, medical expenses, loss of enjoyment of life, or care and assistance.A Schedule of Damages is used by Lawyers to show how much compensation you are entitled to receive for loss of income by looking at your financial loss from the date of the injury until your statutory retirement age, now age 67.

Loss of income

The amount of financial loss is divided into;

Past loss of income – from the date of injury to the date of the settlement conference or Award.
Future loss of income – from today into the future until your statutory retirement age.
Loss of superannuation – you are also entitled to loss of superannuation based on the gross loss of both past and future loss of income awarded.
Schedule of damages

Name: John Citizen
DOB: 28/02/1970 – Current age 46
Years until retirement (age 67): 21 years

5% multiplier 685.6
(Note a multiplier of 5% is always used when finding the present value of any future loss)

Past Wage Loss
29 September 2002 to 5 November 2005 (162 weeks @ $600 net per week) $97,200.00

Future Wage Loss
$600 net loss p/w x 685.6 less 15% $349,656.00
Note: 15% is usually deducted for the vicissitudes of life

Past loss of Superannuation
11% of past net loss $10,692.00

Future loss of Superannuation
13.5% of net future loss $52,448.00

Final Total: $509,996.00

From any Work Injury Damages claim agreed or resolved as above, any past workers compensation payments received for wages paid must be deducted from the total.

For example Mr Citizen in this example received $400.00 per week in weekly benefits for the past period claimed of 162 weeks so 162 x $400 = $64,800.00 must be deducted and refunded to the Workers Compensation insurer as a claimant cannot receive the same compensation twice.

Damages are only payable against an employer for loss of income including loss of superannuation. Unfortunately no compensation is payable for pain and suffering, future medical treatment or care and assistance.

You can receive these types of compensation if your claim is against a non-employer. Claims against an employer are as a result worth a lot less than claims against non-employers so it is always important to obtain proper legal advice as to your rights.

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.

Superannuation in WID claims

The current rate of compulsory superannuation is 9% on gross loss or 11% on net loss.

In any claim for Work Injury Damages you can include in the calculation of damages your loss of compulsory superannuation payments due to your inability to work.

You must be able to establish that but for the injury you would have been paid compulsory superannuation benefits by your employer. This is due to increase in the future in accordance with Federal Government legislation.

Your lawyer should make sure the proper amount of superannuation is claimed in any Work Injury Damages claim.

The approach to payment of superannuation in Work Injury Damages claims was looked at in the case of Najdovski v Crnojlovic 2008 where it was found that superannuation is payable on the gross loss of income not net loss. The Court adopted an approach of using 11% of the net loss of superannuation to take into account that super is paid on gross loss and also different taxation treatment of such income.

As a result of the increase in superannuation over the coming years the 11% figure applies to super payable at 9%. When assessing future loss of superannuation we need to “gross up” the future loss which means the percentage used depends on the years to retirement and can be between 11.61% and 14.16%.

For example; 5 years to retirement is 11.61%, 10 years is 12.44%, 20 years is 13.44% and 30 years is 13.85% and so on up to 14.16%.

Conclusion

Work Injury Damages claims provide essential financial recourse for workers harmed by employer negligence, covering lost income and superannuation. Given the complexity of these claims, especially in distinguishing between employer and non-employer negligence, it’s crucial to seek expert legal advice.

Should you have any further questions, please contact our office at (02) 8329 9500 or complete a free case assessment here.

Garling & Co Lawyers

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...
Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
READ ALL TESTIMONIALS

Would you like assistance with your claim?

Complete our free, no obligation confidential case assessment form and we’ll get back to you within 24 hours.

Alternatively, we are available to talk through phone and email. Please contact our experienced workers compensation lawyers to find out how we can help.

No Win No Fee

You won’t be required to pay any fees until we win your case.

Industry Experts

We’re industry experts with over 20 years of experience.

Maximum Compensation

Our team of expert injury lawyers will help you get maximum compensation.

Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
Google Rating
4.9