Recent publicity about the alarming increase in the incidence of student on teacher violence (see link) draws timely attention to this very concerning problem occurring in our schools. It also provides a useful context to explain the difference between statutory workers’ compensation on the one hand, and common law compensation under the workcover system on the other.
To adopt the specific example of a teacher assaulted by a student at a school, that teacher will potentially have two types of entitlement under the Queensland Workers’ Compensation system. The first entitlement is the entitlement that every worker injured in Queensland employment has, and what can be conveniently referred to as “statutory” entitlements. These include the payment of replacement wages to the extent the teacher is unable to work, the payment of medical expenses and rehabilitation costs for any injuries they have suffered, and assistance in returning to work once recovered if required. These entitlements accrue to an injured Queensland worker – such as a teacher assaulted by a student – on a no-fault basis. That is, it is not necessary for the teacher to show that the incident has occurred due to the negligence of their employer in order to receive these benefits. These benefits are accessible more or less immediately upon workers’s compensation claim application to WorkCover Queensland – usually made shortly after the injury has occurred.
These entitlements apply equally to psychological injuries as they do to physical injuries, and it would be by no means unsurprising if a teacher were to experience psychological trauma as a result of such a terrible event.
This so-called statutory compensation available through WorkCover Queensland is not open ended. It is available only insofar as WorkCover considers the injured person is in need of those services and their injuries are not yet stable – that is, not getting any better, but not getting any worse. Once WorkCover considers that it can no longer reasonably provide any support and the injury is stable, WorkCover will move to then assess the impairment of the injured person and, if a level of impairment is assessed, a notice of assessment will be issued to the person with an offer of lump sum compensation.
This assessment and offer of lump sum compensation triggers a potential entitlement to the second type of compensation under the Workers’ Compensation system, being common law damages. Common law damages provide a much more comprehensive scheme of compensation then the more limited statutory compensation the worker will have received up until that point. Generally speaking, the worker has to make a choice to either accept the offer of lump sum compensation or bring a common law damages claim. That is essentially a financial decision based on legal advice about whether or not bringing a common law claim is likely to be more beneficial than simply accepting the lump sum as offered by WorkCover.
In purely financial terms, because a common law claim addresses things particular to the injured worker’s future such as what the long term effects of the injury might be on their employment, a common law claim will in most cases be more valuable than an offer of lump sum compensation by WorkCover. But unlike the position with so-called statutory compensation, in a common law damages claim the injured worker is required to show that the injury occurred due to a breach of the duty of care owed by the employer – known as negligence or, simply, fault.
So the limited statutory compensation is available on a no-fault basis, but if a worker wants to access the more expansive compensation through the common law system, proof of the employer’s fault is necessary.
In many cases demonstrating fault or negligence on the part of employers is not difficult. The law imposes very heavy duties upon employers to care for the safety of their employees and the system is geared towards caring for injured workers. But establishing the liability of an employer is not always straightforward, and assault of a teacher by a student at a school is an instance where careful consideration is required.
As a starting point, say for example a student with no prior history of violent behaviour suddenly and without warning assaulted a teacher in a classroom. It is hard to see how that situation could give rise to a finding of negligence on the part of the school. In that instance, the injured teacher would have an entitlement to statutory compensation, but probably no entitlement to additional common law damages compensation.
For the purpose of establishing whether the injured teacher has an entitlement to common law damages, an assessment of whether there has been negligence on the part of a school in such a case will usually start with ascertaining what knowledge the school had, or should have had, about a student’s tendency towards violence prior to the incident occurring. This level of knowledge will then allow an examination of what the school should have done to prevent the assault. Measures ranging from expulsion or suspension of the student to simply forewarning a teacher about the student’s behaviour, are all things that could be considered in determining whether the assault was something that could have been prevented by the school meeting its duty to care for the safety of its employee, the teacher.
No two cases are alike and careful expert examination is required in each case to determine where the rights lie and to advise on the best course of action for the injured person to ensure their entitlements are maximised.
