At common law, employers are expected to have a high standard of care for their worker's safety, reflecting the level of control an employer has over the worker, the system of work and the work premises.
Workers expect that if they are injured due to their employer's fault, they will receive damages like anyone else who is injured.
Sadly, that is not the case in NSW. Claims for damages against an employer are restricted by the Workers Compensation Act 1987.
No matter how negligent the employer is, an injured worker cannot sue for damages unless they have at least 15% whole person impairment assessed in accordance with the current Guidelines.
If a worker is seriously injured and gets over that threshold, they can only recover damages for:
Past loss of earnings
Future loss of earning capacity to the retirement age
Past and future loss of superannuation
They also get to keep any statutory lump sum compensation which was paid for the impairment and do not have to pay back past medical expenses.
For this reason, it is important to consider whether someone other than the employer could be at fault. Common examples include the occupier of a premises, manufacturer of equipment or employees of another company involved in the work. Claims by injured workers for damages against someone other than the employer are not so restricted.
A great example of this is the recent Court of Appeal case of Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296.
The worker, Ms Walker, was employed as a shearer's cook by Shear Away Pty Ltd. She was working at a grazing property at Banoon when she was injured. The injury occurred when Ms Walker stepped onto a step up to her accommodation building which consisted of a plank of wood resting on two timber stumps. The step tilted and she fell sustaining serious injuries.
The grazing property was occupied and controlled by Top Hut who admitted liability as the step was meant to be checked before shearing commenced. Top Hut brought a cross claim against Ms Walker's employer alleging the injury would not have occurred if they had carried out a more thorough check of the step before the work commenced. The trial judge found, in the specific circumstances of this case, the employer's visual inspection of the property had been sufficient to discharge its duty of care and dismissed the cross-claim against the employer.
This meant all the damages were payable by Top Hut and the restrictions contained in the Workers Compensation Act did not apply. The primary judge awarded Ms Walker damages against Top Hut in the sum of $992,866.34 comprising the following heads of damage:
Non-economic loss $240,500.00
Past out-of-pocket expenses $ 58,347.19
Future out-of-pocket expenses $136,758.00
Loss of past superannuation $ 15,043.38
Future economic loss $ 99,626.80
Loss of future superannuation $ 13,509.39
Past domestic assistance $ 88,336.00
Future commercial care $250,531.00
Fox v Wood $ 49,313.60
Top Hut's appeal to the Court of Appeal was dismissed.
If the employer had been solely at fault for this accident, the damages payable to Ms Walker would have been around $700,000 less.
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