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Featuring: Partner, Jeremy Roche

Contributory Negligence: What if my Employer or WorkCover blames me if I’m injured at work?

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Injured workers in Queensland are usually shocked to receive denials of liability for accidents from WorkCover, or a refusal to accept a claim. To add insult to injury, they are also blamed by their employer for causing the accident in the first place! Anyone who has had a WorkCover claim will tell you – they make you feel like it’s all your fault! Attwood Marshall Lawyers Compensation Partner and Accredited Specialist in Personal Injury, Jeremy Roche, looks at the rules around the work injury blame game.

Introduction – WorkCover Statutory Claims

Most workers who are injured during the course of their employment or travelling to or from work are covered by a compulsory statutory worker’s compensation scheme that initially is not based on who is at fault.  If you are injured while at work or carrying out your normal work activities (including while travelling to or from work locations etc.), you are entitled to lodge a claim for medical treatment expenses as well as payment of your wages during any time off that you have from work as a result of the work related injury. Claims are made pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’).

Normally if you suffer an injury at work your employer is obliged to contact WorkCover Qld and notify them of your accident.  You must then obtain a WorkCover Medical Certificate from your treating doctor (or the hospital) and a claim is submitted to WorkCover for approval.  In most cases, the claim is approved if it appears legitimate and is supported by your employer.  There can be issues with the claim if there is some doubt as to whether you have suffered the injury at work, but usually it is a fairly straightforward process to have the claim approved and WorkCover commence paying for your medical expenses, related treatment (e.g. physiotherapy) and pay you for any time that you have off work because of your injury.

The issue of psychological or psychiatric injury has become increasingly prevalent in recent years.  Claims made for workplace harassment and bullying have increased substantially but are quite often denied by the employer.  The huge increase in psychological injury claims has caused WorkCover to look very carefully at these claims when they are made.  They are quite often denied as being work related by WorkCover Qld with these decisions made by claims officers often without proper consideration of the evidence to support the claim.  Psychological injury claims are often denied on the basis that the psychological condition claimed by the injured worker is as a result of the ‘reasonable management’ decisions of the employer (e.g. when an employee is “performance managed”).  Section 32 (5) of the Act sets out the exceptions to a psychological or psychiatric injury. This section of the Act is often relied upon to refuse a WorkCover claim.  This can have significant consequences for the injured worker and can prevent them from taking appropriate compensation proceedings against their employer.

Injured workers who have their claim refused by WorkCover have a right of review to the Worker’s Compensation Regulator (WCR).  The review must be lodged with the WRC using the approved form within 3 months of the decision by WorkCover to deny the claim.  If the review is unsuccessful, the injured worker has a right to appeal to an Industrial Magistrate.

Normally the statutory claim procedure is reasonably straightforward but it is important that all injured workers are aware of their rights in relation to lodging a claim if they are injured at work and the review and appeal rights open to them if their claim is refused or recommended treatment is refused by WorkCover Qld.  These statutory claims are normally decided without reference to any negligence or fault on the part of the employer.  It is only when the statutory claim process has been completed that an injured worker has the option of taking common law proceedings against their employer.  This is an action for damages against the employer for negligence and can only be brought after the injury has been assessed and an offer made for permanent impairment.  WorkCover Qld, as the compulsory insurer of the employer, steps into the employer’s shoes to deal with this claim and pays out any award that has been made in favour of the injured worker.

Many injured workers elect not to take common law proceedings against their employer due to loyalty factors.  The fact is that it is WorkCover Qld who pays for these claims and not the employer.  The only downside for the employer may be an increase in their WorkCover premiums in the event that they have been negligent and have an unsafe workplace.

Common Law Claims Against Your Employer

For decades, injured workers who made common law negligence claims have been issued with Liability Notices from WorkCover that almost invariably read:

  1. Liability is denied on behalf of the employer; and
  2. The worker caused or contributed to the accident to the extent of 100%.

Historically, these Liability Notices are issued to injured workers even when WorkCover and their lawyers are (or should be) cognisant that:

  • The employer is clearly liable for the accident;
  • The worker’s claim will succeed in court; and
  • The allegation of contributory negligence against the worker cannot be substantiated.

In recent years, WorkCover has (finally) made attempts to refrain from issuing disingenuous liability denials in cases where the employer’s negligence is obvious, and to simply admit liability instead. Nonetheless, admissions of liability remain all too rare, involving those astute defendant lawyers who are willing to call a spade a spade for the sake of all parties.

When WorkCover denies liability

When WorkCover admits liability in cases of clear negligence, the effect on injured workers and their families is palpable, providing some semblance of light at the end of a difficult and disorientating tunnel.  The claimant’s trauma, uncertainty, and legal costs are substantially reduced. Benefits to WorkCover include narrower legal issues, shorter claims, and reduced legal costs of their own. By contrast, an unfair denial of liability (despite clear negligence) can seriously impact the health and wellbeing of an injured worker.

Injured workers and plaintiff lawyers have long bemoaned unfair liability denials, somewhat cynically claiming that WorkCover issues them for strategic purposes. After all, injured workers are more likely to give up on their claim, or take less than they should, when liability has been denied and the worker blamed for their own injuries to the extent of 100%.

WorkCover’s slow (and overdue) increase in liability admissions in cases of clear negligence should be commended. However, we look forward to an upward trajectory of liability admissions by WorkCover until they are commensurate with the number of cases where negligence is clear.

Despite WorkCover’s steps to address unfair liability denials, spurious claims of contributory negligence against injured workers continue largely unabated.

What is Contributory Negligence?

Contributory negligence occurs where an injured worker negligently causes or contributes to their own work accident.  In cases of “contrib”, the worker’s damages are reduced by a percentage proportionate to their own liability in negligently contributing to the accident.

For example, if a claim is worth $100,000.00 and a court considers the employer to be 90% liable in negligence, and the worker to be 10% liable by way of contributory negligence, then WorkCover will only be required to pay the worker $90,000.00 (i.e. 90% of the total damages).

When does Contributory Negligence apply?

A worker may negligently contribute to their work accident by failing to comply with the employer’s instructions, failing to wear the provided safety equipment, failing to follow their training, being too intoxicated to safely undertake the task, or similar.

Importantly, however, courts are very slow to make a finding of contributory negligence against an injured worker if the worker’s allegedly negligent conduct was done to advance the employer’s business, even if the worker’s conduct is highly dangerous.

If an injured worker undertakes a dangerous work task to advance their employer’s interests, courts are reluctant to accept an allegation that the worker should have taken better care for their own safety whilst doing so. Courts are particularly critical of employers blaming injured workers for failing to care for their own safety in circumstances where the employer has failed to instruct, train, or warn the worker about the specific work task beforehand.

The High Court in Commissioner for Railways v Halley held that it is “quite wrong” for an employer to allege contributory negligence against an injured worker who undertook a dangerous work act for the benefit of the employer in circumstances where the employer failed to protect the worker in the first place.

Despite the plethora of “contrib” allegations made by WorkCover against injured workers (usually alleged to the extent of 100%), these allegations are quite difficult to substantiate. The onus of proof lies on the defendant to do so.

A Recent Case Example – Walker v Greenmountain Food Processing

In Walker v Greenmount Food Processing, a maintenance manager was driving past the factory where he worked (after hours, in the dark) when he noticed steam coming from a faulty relief valve. The maintenance manager had been drinking alcohol (two beers).  After stopping to investigate, the worker realised that steam was coming from a damaged boiler, which was an urgent issue for the factory to address. To inspect the valves, the worker stepped onto an alsynite panel on the roof whilst also on the phone, trying to organise the urgent repair.  When he stepped onto the roof, the panel broke, causing him to fall seven metres onto the landing below, suffering severe brain and orthopaedic injuries.

The work task (ie. addressing the faulty steam valve) was one in which there had been a lack of training (eg. working at heights), warnings, barricading, safe work methods and proper practices/procedures. Despite these failures by the employer, the worker was doing the best he could in urgent circumstances (at night, after work) to protect his employer’s interests.

Although liability was straightforward, WorkCover’s lawyers predictably denied liability and claimed contributory negligence against the injured worker.

WorkCover blamed the maintenance worker for causing his own accident on the alleged basis that:

  • He failed to look out for his own safety in performing the work task; and
  • His (minimal) alcohol consumption contributed to his failure to look out for his own safety.

Whilst we did not act in this matter, we expect that the worker must have been incredulous. If the employer knew that the maintenance worker saw steam coming out of the faulty valve (potentially shutting down all production) and failed to investigate, his future employment would surely be called into question. The worker went over and above for his employer and suffered severe injuries due to the employer’s failures (to train, warn, barricade, have set procedures, etc.).

Despite WorkCover blaming the worker for causing or contributing to his own injuries, the court dismissed WorkCover’s misguided “contrib” allegations out of hand.

Justice Applegarth concluded:

an employee who has not been adequately protected by an employer should not be found to have been guilty of contributory negligence simply because he was engrossed in his task”.

Further:

  • Contextual allowance must be made to cases where a worker acts “in the agony of the moment”;
  • A worker’s mere inadvertence, carelessness, inattention, or misjudgement is not enough to substantiate an allegation of contributory negligence against a worker.
  • Intoxication is irrelevant unless the breach of duty was specifically caused or contributed to by the worker’s intoxication, which it was not in this case.

The Future of Contributory Negligence Allegations

Despite the litany of spurious contributory negligence allegations routinely issued by Workcover, courts are reluctant to uphold allegations of “contrib” against injured workers in most cases. This is particularly so where the worker was undertaking a task to advance the employer’s interests and/or where the employer has negligently failed to protect the worker in the first place.

Attwood Marshall Lawyers calls for Workcover to review its approach to issuing contributory negligence allegations against injured workers in circumstances where it clearly does not apply.  At present, plaintiff law firms often advise their injured clients to simply ignore the formal liability decisions of Workcover (particularly allegations of contributory negligence) because they are not legally founded.

This should not be the case.

Workcover sensibly reconsidered its approach to denying liability in cases of clear negligence and should similarly dispense with unfair allegations of contributory negligence.

Injured workers (and their families) deserve better.

Read more: Workers’ Compensation schemes investigated as unethical practices exposed
Read more: Workcover claims in QLD – don’t sign your life away!

If you have been injured at work, you may be able to make a claim for compensation. Attwood Marshall Lawyers can help you every step of the way. Contact Compensation Law Department Manager, Kelli Costin, on 5506 8220, mobile 0432 497 383 or email kcostin@attwoodmarshall.com.au to organise your free and confidential initial appointment. You can visit our experienced team at any of our conveniently located offices at Robina Town CentreCoolangattaKingscliffBrisbaneSydney or Melbourne.

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