An overview of the common
law process
Kym Cavanagh
Director and panel lawyer
1
There must be an injury and there must be a
worker
An Injury is:
- Personal injury
- Arising out of the course of employment
- Employment is a significant contributing factor
Who is a worker?
2
What is the difference between a Statutory
Claim and a Common Law Claim?
Statutory Claim:
- ‘No Fault’
- Covers Medical, Rehabilitation, weekly benefits
- Focus on Return to Work
Common Law Claim:
- Does not always follow a Statutory Claim
- Requires fault on the part of the Employer
- Takes into consideration the actual loss and potential loss
3
Duty of Care
An Employer owes a duty to exercise reasonable care to protect an
employee against foreseeable risk of injury.
An Employer’s Duty of Care is Non-Delegable
An employer cannot escape liability for an injury to a worker by claiming that
it delegated responsibility to another party (including an employee).
4
When can a worker pursue a Common Law
claim?
An injured worker must obtain a Notice of Assessment which contains an
assessment of permanent impairment relating to the injury.
Injuries sustained after 15 October 2013:
- Physical injuries must exceed a permanent impairment of 5%; and
- Employment to be the “major significant contributing factor” for
psychological injuries
A decision must be made – the Lump Sum Offer
5
The Start of the Common Law Claim
Delivery of the “Notice of Claim” by the injured worker
Indemnity provided by WorkCover Queensland
Involvement of the Panel Law Firm
6
The Usual Course
Notice of Claim
Factual Investigations
Medical Investigations
Liability Response
Compulsory Conference
7
What if it does not resolve at the Compulsory
Conference?
Mandatory Final Offers & their purpose
Litigation
8
Things employers can do to
minimise claims costs
Pat Hall
Director and panel lawyer
9
Prepare Your Business
1.
Injury reporting system
2.
Investigation process
3.
Keep records
10
Facts are Gold and Evidence is King
1.
2.
3.
4.
5.
Keep equipment or other items relevant to the incident – eg. Ladder
that toppled over.
Take photographs/video at the time and keep them where you can
find them.
If there is CCTV footage relevant to the incident – retrieve it and
keep it.
Identify witnesses and keep in touch with them.
Obtain a really good idea of how the event occurred and document
it.
11
Back to Work
1.
The injured worker is not your enemy.
2.
Commit to Rehabilitation.
3.
Look at alternatives.
12
Contractual and insurance issues that
impact claims and your business
Hamish Craib
Lawyer of Hede Byrne & Hall and Panel Lawyer
13
Recruitment – pre-existing injuries and medical
conditions
Now the WCRA has been amended to preclude claims where workers fail to disclose
previous injuries or medical conditions.
The employer must:

Request disclosure of the pre-existing condition.

Make that Request in writing.

Provide information about the duties which are the subject of the
proposed employment.
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Recruitment – pre-existing injuries and medical
conditions
Issues:
 It does not provide on what basis a prospective employer can discriminate ie not hire a
prospective worker who discloses the pre-existing injury or medical condition.
 The Courts will construe this provision narrowly.
15
Previous Claims
Employers can also obtain a previous claims history from the Workers’ Compensation
Regulator.
The approved form can be obtained from this link:
http://www.justice.qld.gov.au/__data/assets/pdf_file/0003/217317/Form-571D-Application-forclaims-history-summary.pdf
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Recruitment – a stitch in time saves nine
 Do reference checks.
 Assess ability before hiring eg plant operation.
 Deal with issues when they arise eg re-training, counsel for performance issues, and if
necessary terminate.
17
Contracting out of Common Law Liability
It can’t be done.
18
Who is a “worker” compared to an independent
contractor?
Worker





Directed how and when to do a certain task.
Set hours for set pay.
Does not supply own tools or materials.
Works as directed.
Cannot delegate or subcontract work to
another individual or entity.
 Employer provides PPE.
 Wears a uniform.
Independent Contractor
 Paid for an outcome eg provide and erect
scaffolding.
 Decides when work is carried out.
 Provides own tools and material.
 Paid on completion of a job.
 Works for other companies.
 Can delegate work or subcontract.
 Provides own PPE.
19
Who is a “worker” compared to an independent
contractor?
Look at the Australian Taxation Office Employee or
Contractor Tool at https://www.ato.gov.au/calculators-andtools/employee-or-contractor/.
20
Indemnity Clauses – issues for the Principal
The purpose of an indemnity is to either anchor liabilities where they would
otherwise lie, or to shift risk from one party to another.
For example:
The subcontractor indemnifies the Principal for all losses, costs and damage caused by the
negligent acts or omissions of the subcontractor, its employees, agents or its subcontractors except
to the extent the loss, costs and damage were caused by the negligence of the Principal.
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Indemnity Clauses – issues for the Principal
Or the Principal’s contract with the subcontractor will require an indemnity
which provides:
The subcontractor will indemnify the Principal for all costs, loss or damage however caused even if the costs,
loss or damage are caused by any negligent act or omissions of the Principal.
This indemnity is fraught with danger:
 The subcontractor’s WorkCover policy will not respond to any contractual
risk.
 Most liability insurers will expressly exclude contractual risks in the policy
wording.
 The Principal is left with no recourse but to pursue its own liability insurer.
22
Insurance Clauses
The Principal must sight the Certificate of Insurance and
the policy wording.
Subcontractors must make sure they have all necessary
insurances as required by the contract.
23
Joint and Several Liability
Any finding of negligence on the part of the Principal
contractor means that it must satisfy the whole of the
Judgment if the subcontractor cannot pay its share due to
insolvency.
24
Contribution Claims
Glenda Banaghan
Lawyer of Hede Byrne & Hall and Panel Lawyer
25
26
Legislation
S278A of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) provides for
the adding by WorkCover Queensland of another party as a contributor to a claim in the
pre-proceedings stage.
This is achieved by the issue of a Contribution Notice.
There are time frames for these to be issued.
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Circumstances in which a Contribution Notice
would be issued
Where someone else is at fault, either partially or completely, for the claimant’s
injury/ies.
Examples:
- A faulty piece of plant/equipment manufactured/supplied by a third party;
- A principal contractor;
- A host employer;
Eg Duong v APS Group & Ors (2010) QSC 466
30% to Employer
70% to host
- A property owner/occupier
Eg; Ronald v Cooks Transport & Toll unreported decision Botting DCJ 2012
85% to Toll as occupier, 15% to employer
No contributory negligence as mere inadvertence.
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29
How much will they pay
Depends on the facts.
Non delegable duty of care owed by Employer to Employee.
30
Contributory Negligence
This refers to conduct by the Claimant which would lead to a finding
that he/she acted or omitted to act in a way that contributed to their
injury.
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32
Legislation
Sections 305F to 305J
Same principles apply to determination of this issue as to
determination of breach of duty.
- Can defeat a claim (if 100%)
- Presumption if intoxicated/drugs.
- Not “mere inadvertence”
-
Bankstown Foundry v Braistina 1985-1986 160 CLR 301
Czatyrko v Edith Cowan University (2005) HCA 14
33
Examples
Tabulo v Bowen Shire Council 2004 QSC 038
- Walking backwards along retaining wall sweeping aggregate, fell 2m.
- 25% contribution.
Contrast
Daly v DA Manufacturing Co Pty Ltd & Letzbuild 2002 QSC 308
- Failure to inspect ladder prior to use, no contributory negligence.
Green v Hanson Construction Materials Pty Ltd (2007) QCA 260
- 30% reduction for not using a hand rail.
Sharp v Emicon 2014 NSWSC 1072
- 15% reduction for standing on the top railing of a scaffold.
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