Common Law: Access disabled

Written on the 13 March 2014

Common Law: Access disabled

Injured workers will have to pass a minimum disability rating to gain access to common law courts as they seek compensation for injuries.

THE number of injured workers bringing common law claims against employers will be slashed under amendments to the WorkCover legislation brought by the Queensland Government, says IR lawyer Rachel Drew.

Workers who sustain an injury with five per cent impairment or less in a workplace incident are no longer able take their claim to court under Attorney General Jarrod Bleijie’s changes to the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013.

“From around 100,000 workers’ compensation claims lodged each year, less than 5000 claims proceed to become claims for common law damages.  A threshold of 6+% is likely to reduce that figure by half, leaving very few injured workers bringing valid claims,” says Drew, Tresscox IR partner.

Queensland already had the second-lowest premiums in Australia and amendments in 2010 have already reduced the amount of common law damages recovered by claimants, by an average of about 30 per cent, says Drew.  

The changes do bring Queensland into line with other states, as only Australian Capital Territory remains without a threshold. Tasmania (30 per cent) has the highest threshold.

Director of Brisbane firm Bennett & Philp Lawyers Mark O’Connor is concerned employers will become cavalier in their approach to workplace health and safety and is critical of the changes, describing them as “flawed” and “cruel”.

“An injured worker assessed as not having a bodily impairment of five per cent or less is shut out of the common law compensation process. The common law system is there to punish employers who may flout the safety rules,” says O’Connor.

“This government has now removed that right for any employee assessed as having an impairment of five per cent or less, whether it’s the employer’s fault or not. It’s a cruel thing to do.”

Considering Queensland’s previous system was performing well and relatively cheaply, Drew also questions whether the government has got the balance right.

She notes the government has retained its ability to prosecute for Breaches of the Work Health & Safety Act 2011.

“For the government to retain the right to prosecute and fine employers for “risks” of injury (even where no injury actually occurred) but exclude the person injured from access to compensation does suggest an element of imbalance,” she says.

Amendments came into effect late last year, just months after Bleijie also changed the definition of ‘worker’.

Other changes include merging the regulatory functions of Q-COMP into the department

Workers will be covered on their journey to and from work, making Queensland the only state where this is the case and Bleijie says all workers remain protected with cover.

“Every injured worker will continue to be covered under the statutory no fault compensation system which includes payment for lost wages, medical treatment and access to lump sum compensation,” he says.

The aim of the changes, says Bleijie, is to tackle “skyrocketing premiums”.

“Since 2009, the average premium rate has increased by twenty per cent with Queensland quickly slipping back in the pack,” he says.

“In 2010, the board of WorkCover Queensland under former Chairman Ian Brusasco recommended that the previous Government introduce a 10-15% threshold on common law claims.”

For employers to remember:
  • Employers no longer have to ensure return to work coordinators have completed a course.
  • Employers can require prospective employees to declare their WorkCover claims history.
  • Even with the simplified definition of “worker”, employees must take care to ensure they are properly assessing whether someone is a worker as fines and penalties may still apply to an employer who gets it wrong.







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