Many injured Queenslanders assume that having an accepted statutory claim with WorkCover Queensland for a work-related injury means they will automatically have a viable common law claim for damages. This is not the case.
WorkCover Queensland is a “no fault” scheme. This means there is no requirement to prove or establish negligence on behalf of the employer. It must simply be established that:-
- you are a “worker” under the Queensland legislation;
- you have sustained an injury or disease; and
- your employment in Queensland was a significant contributing factor to the development of the injury or disease.
This is very different to a common law claim, which is a fault base scheme, meaning you must establish liability [or legal fault] on behalf of the employer before you are entitled to damages.
To succeed in a claim for negligence, an injured worker must prove:
- The employer owed a duty of care; and
- the employer breached the duty of care it owed; and
- Due to the breach of duty of care, the employee has suffered injury, loss and damage.
It is a well-established legal principle that all employers owe their employees a duty of care to provide a safe system of work. An injured worker can also usually evidence quite readily that they have suffered injury loss and damage (though the nature and extent is often in dispute).
Accordingly, most personal injury lawyers will focus their common law investigations on whether the employer has breached the duty of care it owed. In other words, did the employer fail to protect the injured worker against a foreseeable risk of injury, that was not insignificant and in circumstances where a reasonable person would have taken precautions (considering the probability of harm, the seriousness of injury and the burden of taking precautions).
However, even if an employer appears to have breached their duty of care, this should not be the end of any thorough investigation into the viability of a common law claim. This is not sufficient to get the claim “over the line”
It needs to be taken a step further and established that the negligent act (or omission) has caused or materially contributed to the injury. This is the legal concept of causation.
It is possible for a defendant to breach their duty of care and for a Court to make a finding that the injury was not directly caused by the negligent act or omission.
An example of this concept is nicely summarised by Justice McMeekin in the matter of Cahill -v- Bowden (a case involving an injured horse musterer) where he provided an analogy on causation involving an employer providing a defective car to an employee:-
“The employer knows that the car is defective in that the brakes intermittently don’t function, so the car is plainly dangerous. An accident happens and the employee is injured. Let us say the accident happens because the steering failed. That being a problem unknown to the employer and not reasonably discoverable by the employer, it does not avail the employee to argue the employer should not have given him the car. That doesn’t get him home. Because he fails on causation. That is, the negligence involved in the employer’s action in giving him the car didn’t cause his injury even though he can argue quite sensibly “I should never had been given that car”.
In this particular example, while the defendant had breached its duty of care by providing the employee with a car with known defective brakes, it was not the defective brakes that caused the accident. This means there is no direct causal link between the alleged negligence and the injury suffered by the worker and the claim would fail.
This is a timely reminder that establishing a breach of duty is not sufficient for a common law claim to be successful and it is important that causation is carefully considered before taking the irreversible step of rejecting any offer of lump sum compensation contained within a Notice of Assessment and commencing a common law claim.
In our experience, there are many cases that are accepted by WorkCover Queensland during the “no fault” statutory scheme that do not satisfy the elements for a successful common law claim. In those circumstances, it is appropriate to advise the injured worker that sometimes the best course of action is not taking any action at all.
It is therefore important for all injured workers to ensure they seek comprehensive legal advice regarding any potential common law entitlements, and for these entitlements to be carefully investigated, before making the irrevocable decision to commence a common law claim.
