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Workers Compensation
Creates rights on NO FAULT basis.
WORKERS COMPENSATION ACT 1998
s4: Defines worker: “a person who has entered into or works under a contract of service or a training
contract with an employer…”
o Includes State gov employees
o “contract of service” – determined by CL.
WORKERS COMPENSATION ACT 1987
Liability
s4: Defines injury
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the
employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the
employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration,
and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as
defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration,
exacerbation or deterioration of a dust disease, as so defined.
s10: Includes injuries received on periodic journey (home to work and back), provided – no interruption
or deviation which materially increases the risk of injury.
s14: “serious and wilful misconduct of the worker” is disqualified from compensation if:
(1)
(a) acting in contravention of any statutory or other regulation applicable to the worker’s
employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker’s employer,
Unless it results in: death or serious and permanent disablement of a worker
Compensation payable on death
s25 Death of worker leaving dependants
 Wholly dependant persons paid LUMP sum. If more – sum is apportioned.
 Dependent children: weekly compensation payment up to 16 yrs (or 21yrs if student).
 Partial dependants – awarded portion at discretion of Commission.
Weekly compensation by way of income support
s36 Weekly payment during total incapacity-first 26 weeks
 For first 26 weeks of TOTAL INCAPACITY – paid currently weekly wage
 Calculated by reference to the AWARD rate.
 Overtime and penalty rates not included.
 Casual workers – based on what they earned in preceding year.
s37 Weekly payment during total incapacity-after first 26 weeks
 Paid statutory rate – lesser amount, prescribed under Act.
s38 Partially incapacitated workers not suitably employed-special initial payments while seeking
employment
 Employee (partially incapacity) and cannot be suitably employed by employer for that period 
taken to be TOTALLY incapacitated and entitled to compensation accordingly
 Limited to 52 weeks.
s40 Weekly payments during partial incapacity-general
 If worker unable to do pre-accident job and is paid lesser wage (due to partial incapacity)  entitled
to make up pay.
 Difference between current weekly earnings and probable weekly earnings BUT FOR injury.
Compensation for medical, hospital and rehabilitation expenses etc
s60AA Compensation for domestic assistance
 Employer provides for home care services where:
o Need is certified by medical practitioner; AND
o Assistance would not be provided but for injury; AND
o Degree of impairment is 15% +; OR otherwise
o Assistance is temporary (not more than 6 hrs pw for no more than 3 months)
Compensation for non-economic loss
s65A Special provisions for psychological and psychiatric injury
 No compensation for permanent impairment from secondary psychological injury (ie. Psych injury
as consequence of physical injury).
 No compensation for permanent impairment from primary psychological injury unless permanent
injury is 15% degree over.
s66 Entitlement to compensation for permanent impairment
 Worker who gets permanent impairment  lump sum compensation
 Calculated per degree of permanent impairment.
s67 Compensation for pain and suffering
 Workers with permanent impairment (degree over 10%) gets comp for pain and suffering.
Common Law Claims (eg. tort of negligence)
s151A Effect of recovery of damages on compensation
 CL damages  not entitlement to further WC payments at all.
 UNLESS unsuccessful.
 If won, amount of weekly compensation under WC already paid to worker must be refunded.
s151D Time limit for commencement of court proceedings against employer for damages
 3 yr limitation period to bring action
s151G Only damages for past and future loss of earnings may be awarded
 Damages limited to past and future loss of income and earning capacity
 Thus, NO general damages (non-economic loss) or other types of economic loss!
s151H No damages unless permanent impairment of at least 15%
 No damages unless degree of permanent impairment is at least 15%.
 Degree is assessed by Medical Assessment under Part 7 of 1998 Act.
s151J Damages for future economic loss-discount rate
 Discounted by percentage prescribed by the regulations OTHERWISE 5%
s151IA Retirement age
 Disregard earning capacity over 65 yrs when assessing future lost earnings.
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Motor Accidents Compensation 1999
Act commenced on 1/10/1999 – applies to accidents afterwards.
Is NOT a scheme outside the common law – just makes procedures for claims and places limitations
on rights of MV accident victims.
Definitions:
s3 Motor accident:
means an incident or accident involving the use or operation of a motor vehicle that causes the death of
or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a
defect in the vehicle) during:
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control.
s3 Injury:
"injury" means personal or bodily injury and includes:
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
s3A General restrictions on application of Act
 Act only applies for death or injury caused by the FAULT of owner/driver of mv accident.
NO-FAULT CLAIMS-CHILDREN AND BLAMELESS ACCIDENTS
Recovery for blameless accidents
s7A Definition of “blameless motor accident”
a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in
the accident in the use or operation of the vehicle and not caused by the fault of any other person.
s7B Liability for damages in case of blameless motor accident
 Death or injury that results from blameless accident (with MV that has MV insurance cover) is, for
purposes of damages claim  deemed to be caused by fault of owner/driver.
s7C Presumption that motor accident is blameless
 Where P avers that accident was “blameless”  rebuttable presumption that accident was blameless.
s7E No coverage for driver who caused accident
 Cannot recover in death/injury for driver IF accident was caused by act/omission of that driver.
s7F Contributory negligence
 Damages may be reduced for CN of deceased/injured person.
THUS: accident victim has access to damages from third party insurance funds – even where victim
cannot establish fault.
No-fault recovery by children
s7J Damages for children where driver not at fault
 If death/injury to CHILD in “blameless motor accident”, where vehicle involved has MV accident
insurance cover…
 Deemed to caused by fault of driver/owner of vehicle  for purposes of “special entitlement to
recover damages”
 The "special entitlement" means to recover damages for:
(a) hospital, medical and pharmaceutical expenses,
(b) rehabilitation expenses,
(c) respite care expenses,
(d) attendant care services expenses,
(e) funeral or cremation expenses.
 Child means: person under 16 yrs at time of accident.
s7K Claims where child at fault
 Applies even where death/injury was caused by FAULT of the CHILD.
 Except where conduct of child constitutes serious offence (6 months imprisonment +) AND
materially contributed to death/injury.
 No reduction of “special entitlement” damages for CN of child.
s7L Special provision where child and driver at fault
 Special entitlement is for no-fault accidents.
 But even where accident IS fault of driver – cannot reduce “special entitlement” damages to child
because of CN.
THUS: children in accidents are compensated by third party insurance funds, even where they cannot
establish fault or where child is at fault.
CLAIMS AND OTHER PRELIMINARY MATTERS
1. Report to police & lodge notification w/in 28 days of accident: s70
2. Insurer must notify claimant w/in 10 days whether it accepts provisional liability for medical
treatment
3. Claim must be lodged w/in 6 months of accident or full & satisfactory explanation must be provided:
s72
4. Insurer must accept or deny liability w/in 3 months: s81
5. If liability is admitted, the insurer must make a reasonable offer of settlement w/in 1 month after
injury has stabilized or w/in 2 months of receiving particulars from claimant: s82
6. If liability is admitted the insurer must pay all reasonable out of pocket expenses: s83
THE ACT ESTABLISHES THE CLAIMS ASSESSMENT & RESOLUTION SERVICE (CARS)
(s..98 & following) which has power to determine both liability & quantum of damages.
 Some claims may be exempted from the C.A.R. service by Regulation or by a claims assessor (S.92).
These cases will be determined by the Court.
 The decision of an assessor is not binding, except that a decision as to quantum will be binding on
the insurer and on the claimant if accepted w/in 21 days.
 The Act provides for Medical Assessments to resolve questions of degree of impairment,
reasonableness of treatment, and whether injury has stabilized. These assessments are generally
binding on the parties. (s.57-65)
 If an assessment of liability or quantum is not accepted by the claimant, then Court proceedings can
be commenced w/in 3 years BUT there are severe costs penalties for claimants who go to Court if
the Court awards less than the assessment. The claimant could have to pay the insurer’s costs up to
$20,000.00
 The Act allows legal representation at the claims assessment stage.
DAMAGES FOR ECONOMIC LOSS
s124 Damages for economic loss - no compensation for first 5 days of loss of earnings etc
 No damages for loss of earnings/earning capacity during first 5 days during which they suffered loss
(whether consecutive or not).
s125 Damages for past or future economic loss - maximum for loss of earnings etc
 Court disregard net weekly earnings of P over $2,500 (max).
s126 Future economic loss - claimant’s prospects and adjustments
 No future economic loss damages UNLESS assumptions about future earning capacity are the
MOST LIKELY future circumstances, but for the injury.
 Must be discounted by ref to possibility (%) that future circumstances might not be assumed.
s127 Damages for future economic loss-discount rate
 Discounted by percentage prescribed by the regulations OTHERWISE 5%
s128 Damages for economic loss-maximum amount for provision of certain attendant care services
 Limitations on attendant care services.
 No damages in some cases: same as CLA s15 (2) (c) and (3).
DAMAGES FOR NON-ECONOMIC LOSS
s131 Impairment thresholds for award of damages for non-economic loss
 No damages for non-economic loss unless degree of permanent impairment was over 10%.
s132 Assessment of impairment required before award of damages for non-economic loss if dispute over
impairment threshold
 Assessment by a medical assessor must be in accordance with MAA Guidelines which use and refer
to the American MA Guides to Evaluation of Permanent Impairment
s133 Method of assessing degree of impairment
 Disregard any psychiatric or psychological injury UNLESS assessment is solely with respect to that
injury (ie. Nervous shock or pure mental harm).
s134 Maximum of amount of damages for non-economic loss
 $366,000 maximum (as at 1/10/2006 indexed).
OTHER MATTERS
s136 Mitigation of damages
 Duty to mitigate damages by:
o Undergoing medical treatment
o Undertaking rehabilitation
o Pursuing alternative employment opportunities
o Giving earliest possible notice of the claim.
s137 Payment of interest
 No interest for attendant care services or non-economic loss.
s144 Exemplary or punitive damages
 Not given!
OTHERS:
Damages for psychological or psychiatric injury:
 See Part 3 Civil Liability Act 2002 (NSW)  look at section on Nervous Shock
Nominal Defendant
 Can be sued where a person is injured by the fault of an uninsured or unidentifiable vehicle. (s33 –
41)
DEFENCES:
s138 Contributory negligence-generally
 Finding of CN is mandatory where:
o P convicted of alcohol/drug related offence in relation to accident UNLESS can prove that
the alcohol/drug did not contribute to accident.
o P voluntary passenger in vehicle driven by person (impaired by alcohol/drug) and P
was/ought to be aware of impairment.
o P did not wear seatbelt or helmet.
 Damages to be reduced by court as it thinks just and equitable in circumstances.
 ALSO look at s49 of CLA.
s140 Defence of voluntary assumption of risk
 Not available EXCEPT where P was driver/passenger in vehicle in motor racing.