Sustaining injury due to the negligence of your employer in NSW

Workers’ Compensation Claim

December 22, 2022


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In NSW there are hurdles that an injured worker must over become before they can sue their employer in negligence. In NSW, injury claims against your employer in negligence are called ‘Work Injury Damages’ cases. The Workers Compensation legislation regulates the circumstances in which such claims can be made. 

In order to be eligible to make a Work injury damages claim you must do all of the following:

  1. Be able to establish that your employer was negligent in causing your injury;
  2. Satisfy the 15% Whole Person Impairment (WPI) threshold by having such an impairment level either accepted by the workers compensation insurer or determined by the Workers Compensation Commission;
  3. Be able to establish economic loss as a result of your injury; and
  4. Issue a claim in accordance with both the timeframes and procedures of the Workers Compensation legislation


Generally, in order to prove negligence against another person or party, you need to establish the following:

  1. That they owed you a Duty of care;
  2. That they Breached of the duty; and
  3. That the breach caused you injury or loss.


Firstly, an employer owes a duty of care to their employees.

Whilst an employer is not expected to guarantee the safety of their employees, the employer does owe a duty of care to its employees to take reasonable care to protect its employees against unnecessary risks of injury. This duty of care is ‘non-delegable’ and therefore the employer cannot delegate this duty of care to another person or entity. The duty of care protects against both physical and psychological injury.

If there is a reasonable risk to an employee, the employer must take reasonable care to avoid the risk by devising a system of work that safeguards against the risk. The employer must even factor in the possibility of carelessness or misjudgement such as in the case of McLean v Tedman which involved a garbage collector who was injured by a motor vehicle whilst running across the road carrying a bin. The system of work was such that needed to take into account both the potential carelessness of the employee, but also potential negligence of the car that struck the employee in that case.

Generally, courts have determined that employers are held to a very high standard to safeguard workers from injuries.

As you may be able to tell, the question of Negligence is often not straightforward and a lawyer will be required to carefully determine whether there are arguments to suggest that your employer was negligent. Sometimes lawyers may even be required to engage 3rd party experts (such as an engineer or architect) to determine whether your employer was negligent.


Secondly, in NSW to be eligible to make a work injury damages claim, workers must overcome the hurdle of being assessed as having a 15% WPI or greater.

It is helpful to understand that as part of their Workers Compensation claim, injured workers are potentially eligible to receive Lump Sum compensation under section 66 of the Workers Compensation Act. This involves receiving an injury assessment by a Doctor who is qualified to assess under a set of guidelines known as the AMA 5 guidelines. Ultimately the Doctor provides a Whole Person Impairment (WPI) which is expressed as a percentage. Presuming that WPI is greater than 10% for a physical injury, or equal to 15% or greater for a Psychiatric injury, that injured worker may make a claim under section 66 of the workers compensation act for a lump sum. Please note, this kind of claim is not a Work Injury Damages claim.

A work injury damages claim can only be made once a successful section 66 lump sum claim has been made for equal to 15% WPI or greater for either physical or psychological injury. Generally, this involves either:

  1. The insurer accepting your injury is equal to or greater than 15% Whole Person Impairment; or
  2. The Workers Compensation commission determines that your injury is equal to or greater than 15%

Once you have established the 15% Threshold, you have satisfied the injury threshold and may be eligible to make a Work Injury Damages Claim.


Thirdly, If you can establish negligence against your employer, and you have satisfied the 15% WPI injury threshold, you will then potentially be entitled to receive damages for lost income (both past and future) in one lump sum.

Our expert lawyers can calculate your potential economic loss. This involves an analysis of such things as:

  1. Your pre-injury earnings;
  2. Your post-injury earnings (if any);
  3. Your capacity or fitness for work both prior to, and subsequent to the injury;
  4. Details as to your employment prospects both pre and post injury
  5. Medical evidence

Your lawyer will need to use litigation tables which are used by Courts to calculate economic loss. Various caps on economic loss imposed by the Workers Compensation legislation may also need to be considered.


Lastly, There are time limits for making Work Injury Damages claims. 

You should seek legal advice regarding these time limits as procedures for making claims need to be followed to ensure these time limitations are met.

Upon meeting the criteria set out above, notice needs to be provided to make a Work Injury Damages claim. The workers compensation legislation specifies certain details that need to be provided in that notice. Upon providing that notice, a further document called a ‘prefiling statement’ must then be provided. The prefiling statement needs to provide further details and must include all evidence you seek to rely upon in Court should your matter proceed that far.

Upon providing the prefiling statement, and waiting 28 days, you can file an Application to participate in mediation in the Workers Compensation Commission. In our experience in most cases the insurer will participate in a mediation in the Workers Compensation commission. Many cases are able to resolve at the mediation, or shortly thereafter. When cases do not resolve at mediation, it is necessary to file Court proceedings to have your matter determined by a court. You can continue to discuss settlement with the insurer even once Court proceedings are initiated.