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Third party recovery after a work accident


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If you are injured whilst at work in South Australia you are entitled under the Return to Work Act 2014 (SA) to make a claim for compensation. An accepted claim can provide an injured worker:

  • income support where you are unable to work
  • financial support for your medical treatment
  • an individual plan for you to return to work
  • lump sum payments in certain circumstances

The amount of compensation and entitlement will depend on a range of circumstances including:

  • the seriousness of the injury
  • subsequent complications from the injury
  • your average weekly earnings
  • your capacity to return to work
  • any accredited medical assessments

The purpose of the return to work legislation is a balanced approach created in the broad interests of the public to address concerns of the employer, the worker and the State.  It was amended to counter a blow out in work cover funding and, in its current state is now more restrictive on compensation amounts for the injured worker.

Disadvantages of the Return to Work Act 2014 (SA) for injured worker

In some circumstances, an injured worker under this scheme can be greatly disadvantaged, especially when earnings at the time of injury are not representative of future earnings.  Whether you are assessed as a seriously injured worker or not; Return to Work may not provide you with the maximum compensation. In certain circumstances, a third party common law claim may be the best way to proceed. 

What is a third party claim?

A third party claim is made in the common law and operates outside of the Return To Work scheme.  It will not be available in all workplace injuries and is not made against your employer.  It is available where another party caused or can be held liable for your workplace accident by their actions or inactions. 

Negligence is a common law action available against a range of third parties, such as, individuals, motorists, manufacturers, landlords and occupiers etc.  Where there is a duty of care present, individuals may be liable for unreasonable action or inaction that leads to another person’s injury and loss. 

One major benefit for the injured person in the common law is the greater range of remedies available.  When the injured person makes a claim for damages they are claiming any amounts which will help restore them to the position they were in before they were injured. 

Claims for damages made in negligence include:

  • past and future economic loss
  • past and future medical expenses
  • pain and suffering
  • interest from the date of injury

Return to Work SA claims

Return to Work SA may also pursue a claim against a negligent third party and have the right to recover from any damages awarded. Their recovery is for monies paid to an injured party who has received worker's compensation payments under the Return to Work Act 2014 for the same injury.  

Given the complexities of these types of matters, it is always recommended that you obtain competent legal advice. 

Third Party Claims explained in scenarios:

In these claims, there needs to be a negligent act of a third party to give rise to a claim.  Some examples where it is worthwhile pursuing such a claim may be:

Example 1

Ben is a carpenter working on site for his employer and is using a brand new circular saw.  While using the saw he slips and because of a defective guard on the saw he loses some fingers. 

Under a Return To Work SA claim, Ben may receive income support for a period of time but has no guarantee of income beyond 104 weekly payments.  He is able to return to work on modified duties but when he does he earns a significant lower amount. 

A common law claim in negligence against the manufacturer of the saw would mean claiming for lost past income and loss of future income.  Ben could then claim the difference between his low modified duties wage and his higher pre-injury wage amount. 

Example 2

Ned is a casual supermarket employee and is employed to return the trolleys to the store after customers have finished with them.  When clearing the car park, a careless driver reverses into him and crushes his foot.  Ned is an engineering student close to completing his degree and is expected to earn professional wages within a year.  The foot injury lingers and his studies are delayed; Ned is left in poor physical and mental health. 

As a young casual worker, the provision of weekly payments based on average earnings is unlikely to help Ned greatly.  He was expecting to earn a graduate engineering wage in the coming 12 months.  When claiming for future loss of income, he can now claim not only future professional wages but also the loss of wages from any delayed progression in his profession given his injuries. 

Example 3 

Jane is employed part-time as a cleaner by a large firm and has been sent to complete a shift at a school.  She has been back at work part-time for 3 months now after having her first child and will resume full-time in the next month.  She is cleaning a large spill in the staff room and is electrocuted.  It turns out a leaking pipe is near to exposed wires and this has charged the water in the spill.  Jane suffers skin burns, internal organ damage and respiratory arrest.  She is assessed at 29% whole person impairment and is therefore not a seriously impaired worker.  She takes nearly 3 years to recover, her weekly payments ceased 1 year ago and she is still caring for a young family. 

Jane is initially entitled to a claim for weekly payments and a lump sum payment under the Return To Work scheme but she can also pursue a common law claim against the school under occupier’s liability.  The school has negligently failed to provide a safe environment for all persons entering onto the premises. 

Do you have a workplace accident claim?

If you’ve been injured at work Andersons Solicitors can ensure you are compensated for the extent of your injuries. 

A common law action in negligence against a third party may be an option that can be pursued in your circumstances.  The common law provides a greater range of remedies for an injured worker than the Return to Work Act 2014, but it does require a finding of fault.  The process is timely and it can be costly both in terms of time and emotion. 

Having an experienced lawyer to get you through the Return To Work process and assist in managing the pursuit of a common law claim for damages is extremely important.  Kate Keough is a Senior Associate at Andersons Solicitors with significant experience in these matters.  She understands her client’s needs and will pursue your claim to ensure you receive fair compensation for your injuries. 

This blog post has been written by Law Clerk, Antony Boonen and settled by Senior Associate Kate Keough

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Antony Boonen 

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.