Work injury damages

If your work injury may have resulted from your employer’s negligence, you may be able to pursue action against your employer.

You may only claim work injury damages if you have at least 15 per cent permanent impairment and have already received all statutory lump sum entitlements.

Receiving work injury damages will mean that you will no longer receive any kind of compensation through workers insurance.

For more information on eligibility, see Workplace injury and illnesses eligibility.

What are damages

‘Damages’ is the term used to describe a sum of money that may be awarded to compensate for the loss, harm or injury suffered because of the negligence of an employer or another person.

In NSW most workers are limited to claiming past loss of earnings and future loss of earning capacity only.

The amount you can receive in damages can also be reduced if your own negligence contributed to the injury.

Damages and compensation

A work injury damages settlement ceases all further entitlements to workers compensation benefits (including weekly payments, and medical, hospital and rehabilitation expenses, regarding that injury).

The amount of weekly payments that have already been paid to the worker must be repaid out of the settlement amount.

How it works

Court proceedings can only start from at least six months after the injury is reported to the employer.

They must be started within three years of the date of injury, unless you (the worker) have leave of the Court.

Before you can start mediation or court proceedings for work injury damages, you must serve a pre-filing statement setting out the particulars of the claim, and the evidence you will rely on to establish or support the claim on your employer or the insurer.

In most cases, the claim must be referred for mediation before starting court proceedings.

The mediator will attempt to reach an agreed settlement through discussion with all parties.

If an agreement cannot be reached, work injury damages claims are most commonly heard in the District Court.

Legal advice and costs

You should first seek independent legal advice before beginning a work injury damages claim.

If you are unsure of how to locate a suitable legal representative, you can contact:

  • the Law Society, or
  • the Workers Compensation Independent Review Officer (WIRO) which has a list of approved legal providers

It’s common for work injury damages matters to settle 'inclusive of costs'.

This means you enter into an individual costs agreement with your solicitor (most work injury damages matters in NSW do proceed on this basis), then legal costs are usually deducted from the worker's settlement amount.

If a work injury damages claim is not successful, you can continue to receive compensation under the statutory scheme but you are likely to be liable for court costs incurred during the work injury damages claim.

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