Who may seek damages

Section 237 of the Workers’ Compensation and Rehabilitation Act 2003 sets out who is entitled to seek damages for an injury sustained by a worker.

If an injured worker's application for compensation has previously been allowed (refer section 237(1)(a) and (b)), the worker cannot seek damages until they receive a Notice of Assessment (section 246 and 250). If there is an urgent need to commence proceedings for an injury for which no Notice of Assessment has been issued, the worker may:

• apply to have compliance with section 275 waived (refer section 276)
• apply to a court for leave to proceed under section 298.

If an injured worker’s application for compensation is the subject of a review or appeal that has not been decided (refer section 237(1)(c)), the worker cannot seek damages until the review or appeal is finalised, the application for compensation is decided and the injured worker receives a Notice of Assessment (section 254). If there is an urgent need to commence proceedings, the injured worker may:

• apply to have compliance with section 275 waived (refer section 276)
• apply to a court for leave to proceed under section 298.

Please note: an injured worker who lodged an application for compensation out of time (see section 131) is considered to fall within section 237(1)(c).

If a person has not previously sought compensation for the injury (refer section 237(1)(d)), the person cannot seek damages until WorkCover determines that the person was a worker at the time of the injury and has sustained an injury; and issues a Notice of Assessment (refer section 258). If there is an urgent need to commence proceedings the injured worker may:

• apply to have compliance with section 275 waived (refer section 276)
• apply to a court for leave to proceed under section 298.

Please note: as with pre 1 February 1997 injuries, an injured worker who suffers an injury with a work-related impairment (WRI) of less than 20% and elects to accept the offer of a lump sum cannot seek damages at common law. A worker who has a WRI of 20% or more may accept the lump sum offer and seek damages.

If a claimant is a dependant of a deceased worker whose death resulted from the injury sustained (refer section 237(1)(e)), the claimant may seek damages in any of the following situations:

• WorkCover has paid compensation to the dependants of a worker under Chapter 3, Part 11 for the worker's death
• the application is or has been the subject of a review or appeal and the application has not been decided, or
• no application for compensation has been made and WorkCover has decided
  • the claimant was a dependant of the worker
  • the deceased was a worker when the event happened
  • the worker sustained an injury in the event, and
  • the injury caused the worker’s death (refer section 262).

 

If there is an urgent need to commence proceedings the claimant may:

• apply to have compliance with section 275 waived (refer section 276)
• apply to a court for leave to proceed under section 298.