Every Australian worker has the right to work in a safe environment. To ensure this, your employer has a duty of care to you and all their workers. They must take all reasonable steps to keep you safe when they ask you to perform work.
This duty of care applies no matter where you do the work – indoors, outdoors, at home, at work-related events and even while travelling to and from work.
At a minimum, your employer must ensure you have:
- A safe place to work
- Safe systems and processes
- Work duties that suit your abilities
- Equipment that works well, and is safe and maintained
- Sufficient training and direction in how to do the work and use the equipment.
Thankfully Australia has strong legislation that creates safer workplaces – but unfortunately accidents still happen. For this reason, every state and territory has a workers compensation scheme to ensure you can access lost wages and other benefits if you do get injured or become unwell due to your employment.
But what if the injury was your fault?
What is workers compensation?
Workers compensation (also known as WorkCover) is insurance that all employers must take out to cover them if workers are injured or become ill doing their job. It provides financial support during recovery. This support can help reduce your family’s financial stress while you heal enough to return to work. Workers compensation benefits can cover:
- lost wages
- medical treatment
- rehabilitation and return-to-work assistance
- pain and suffering in some situations.
As your employer’s duty of care covers you no matter where you do your job, you can claim compensation even if you were injured while working out of the office, attending a work conference or commuting. Now that many people work from home, it’s good to know you’re covered.
If you’re unlikely to be able to work again due to your injury, you may also be eligible for a lump sum payment.
Each state’s workers compensation legislation covers full-time workers, part-time workers, casuals and apprentices. For example, WorkCover Queensland manages the Queensland system and State Insurance Regulatory Authority (SIRA) is the New South Wales regulator.
What makes you eligible for workers compensation?
It’s important to understand that workers compensation is generally a ‘no-fault’ scheme, which ensures that you can receive compensation for work-related injuries without having to prove that your employer was responsible for causing the injury.
You are eligible to claim workers compensation if:
- you’re considered a ‘worker’ under the legislation
- your employment directly caused a physical or psychological injury or illness.
The amount you may be eligible for depends on the type of injury, how it affects your life and how long it will take you to recover.
It sounds simple, but these cases can become quite complex. Although WorkCover is a no-fault scheme, your responsibility for the injury can still play a part.
Can you make a claim if the injury was your fault?
Before you lodge a workers compensation form, you should consider whether you were responsible for causing the incident in any way. The legal term for this is ‘contributory negligence’.
Contributory negligence occurs when a worker causes or contributes to their own work accident due to negligence. That worker will share the responsibility for what occurred.
Some common ways that workers contribute to a workplace accident include:
- not following instructions
- not wearing safety equipment that was provided
- not paying attention during training
- being under the influence of drugs or alcohol during training.
Cases get more complex when your employer asked you to complete a dangerous task or take shortcuts to finish work faster. Your employer might claim contributory negligence in this case, but a court might find your employer at fault for breaching their duty of care for your safety.
What is the result of contributory negligence?
If you’re found to be partly responsible for the workplace accident, it may reduce your employer’s liability and the amount of compensation you’re entitled to. Your damages will be reduced by a percentage that aligns with your responsibility for contributing to the accident. For example, if you are 50% responsible, your damages will be reduced by 50%.
Each Australian state or territory outlines its own rules for dealing with contributory negligence in its workers compensation legislation.
How to determine who was at fault
The above information shows that, even though workers compensation is a no-fault scheme, it’s still important to figure out who is at fault for your workplace incident. If you helped to cause it, contributory negligence might be a factor. On the other hand, if your employer’s negligence caused the incident, you might want to make a common law claim, rather than just claim statutory benefits. When you make a common law claim, you’re saying your employer didn’t provide a safe work environment and they breached their duty of care to you.
This claim for damages due to a serious workplace injury can result in a larger payout but requires proof that your employer was negligent. You must prove that their negligence directly caused your injury, pain and suffering, and usually a loss of income. When you make a common law claim, your ‘no fault’ statutory claim for workers compensation ends. So who determines fault in a workers compensation claim?
Contributory negligence is a defence. So usually your employer or WorkCover is the party claiming that you were partly or wholly at fault for the workplace incident that caused your injury. They have the burden of proving that you failed to take the actions that a ‘reasonable worker’ would’ve taken in the same situation. A reasonable worker is a hypothetical, ordinary worker that your actions are compared against.
You will be found wholly or partly responsible if the insurer can prove this or a court makes this decision.
How can Main Lawyers help?
Claiming workers compensation seems like a simple process, but every case is different. At Main Lawyers, our workers compensation lawyers are experienced in helping clients get the compensation they deserve.
Never assume you’re not eligible for compensation, even if you believe you’re at fault. Contact us today for an obligation-free consultation to see how we can help.
