Who may seek damages

Section 253 of the WorkCover Queensland Act 1996 sets out who is entitled to seek damages for an injury sustained by a worker, that is:

• an injured worker' whose claim for compensation has previously been allowed (refer s253(1)(a) and (b)), must receive a Notice of Assessment (section 262) before they can proceed.
• a worker who has not previously sought compensation for the injury (refer s253(1)(c)) must apply for a damages certificate in accordance with section 266. Please note: an injured worker who lodged an application for compensation out of time (see section 158) is considered to fall within section 253(1)(c).
• a person who is a dependant of a deceased worker whose death resulted from the injury sustained (refer s253(1)(d)) may seek damages only if WorkCover has paid compensation to the dependants of a worker under Chapter 3, Part 10 for the worker's death; or a damages certificate is issued (refer s273E).
  

If there is an urgent need for anyone in the above categories to commence proceedings, they may apply for a conditional damages certificate.

Please note: as with pre 1 February 1997 injuries, a worker who suffers a non-certificate injury and elects to accept the offer of a lump sum cannot seek damages at common law. A worker with a certificate injury (WorkCover Queensland Act 1996) may accept the lump sum offer and seek damages.

The following differences apply for injuries after 1 July 2001:

• a worker whose application for compensation has been rejected but is the subject of a review or appeal, is also entitled to seek damages (section 253 (1)(c) of the WorkCover Queensland Act 1996 as amended).
• damages certificates are no longer issued and injuries for which no application for compensation was made can simply be included in the Notice of Claim for Damages . WorkCover will then determine whether it accepts the injury and if so, will issue a Notice of Assessment.
• if more than one injury is suffered in one event, the worker only needs to obtain a Notice of Assessment for one of them (section 261 of the WorkCover Queensland Act 1996 as amended).
• conditional damages certificates are no longer issued for urgent matters and instead the injured worker must make application to the court under section 305 or lodge a Notice of Claim for Damages with WorkCover under section 280A of the WorkCover Queensland Act 1996 as amended.