Significant Changes to Injury Laws Bring More Confusion

On 1 July 2010 significant procedural and substantive reforms came into force to change the way Workers’ compensation and civil personal injury claims are dealt with in Qld. But while the changes were meant to “harmonise” the way these claims are managed, a number of new inconsistencies and issues have now been created.

The Workers’ Compensation & Rehabilitation & Other Legislation Amendment Act commenced on 1 July 2010. It:

  • Incorporates, to a great degree, the liability, contributory negligence and assessment of damages provisions of the Civil Liability Act 2003 (CLA) into the Workers’ Compensation & Rehabilitation Act 2003 (WCRA);
  • Empowers the Court to award costs against a worker whose claim is not successful; and
  • Retrospectively abolishes a workers’ right to bring a civil cause of action founded on a breach of section 28 of the Workplace Health & Safety Act 1995 (WHSA).
At the same time, the Civil Liability Act 2003 (CLA) and Personal Injuries Proceedings Act 2002 (PIPA) have been amended to include increases for general and Griffiths v. Kerkemeyer damages, the reinstatement of Sullivan v Gordon damages (damages compensating an injured plaintiff who has lost the ability to care for a disabled relative) and changes to mandatory final offers and certificates of readiness.

However, despite the stated intention for the new laws to “harmonise” workers’ compensation and civil liability arrangements in Queensland, a number of new and presumably unexpected problems have arisen.

Respondents to PIPA claims and their insurers need to be aware that:

  • While Workcover now enjoys the benefit of assessing general damages under the more restricted CLA -style scale in work related claims, non-employer respondents still pay the higher general damages and Griffiths v. Kerkemeyer damages assessed at common law and the worker’s costs. This is because section 5 CLA has not been amended to include workers’ compensation claims.
  • Whilst the intention of the legislature is to allow Sullivan v Gordon damages awards for claimants, in work related incidents non-employer respondents don't have to pay them as the CLA is displaced
  • If a respondent is joined as a contributor by Workcover to its proceedings, the respondent/contributor is now obliged to give Workcover a mandatory final offer. This is in addition to the mandatory final offer required to be given to the claimant.
  • The retrospective abolition of a worker’s right of action under the WHSA will likely spell the end of the employer being seen as an “easy target” in personal injury claims. Non-employer respondents may now be more susceptible to claims by injured workers, particularly when workers will gain the benefit of higher general damages, damages for care and costs from these parties.
To download a copy of the Workers’ Compensation & Rehabilitation & Other Legislation Amendment Act click here

Not on our emai list? Click here to subscribe and receive these e-alerts plus more from Elevista!