Can an Employee Sue Their Employer for a Workplace Injury?

A workplace injury can affect your ability to work and may create significant financial and legal concerns. In Western Australia, injured employees may have access to workers’ compensation, while some serious injuries can also support a common law claim against an employer.

However, these options involve different eligibility criteria, evidence requirements and legal consequences. The nature of your injury, the circumstances of the incident and the level of permanent impairment can influence your available options.

This blog explains when you may sue your employer for a workplace injury compensation guide and what you should consider before pursuing a claim.

Can You Sue Your Employer for a Workplace Injury?

Yes, you may be able to sue your employer for a workplace injury in Western Australia through workers’ compensation and a common law claim. Choosing the right one depends on your circumstances.

Difference Between Workers’ Compensation and a Common Law Claim

The two pathways serve different purposes. Here is a quick comparison between both of them:

Workers’ compensation

Workers’ compensation can provide benefits for eligible workplace injuries without proving employer fault. The outcome of the common types of workplace injury lawsuits may include:

• Income compensation for lost earnings
• Reasonable medical and allied health expenses
• Workplace rehabilitation expenses
• Travel and related expenses
• Certain lump sum payments

Common law claim

A common law claim is different. To succeed, you must generally establish that your employer’s negligence caused your injury. You must also meet the required permanent impairment threshold.

When Can You Make a Common Law Claim Against Your Employer?

An important consideration is the degree of permanent impairment caused by your work injury. For WA, you usually require at least 15% permanent whole of person impairment to claim for common law damages.

You will be required to have an assessment done by an Approved Permanent Impairment Assessor, who will determine the degree of permanent impairment that exists using the appropriate guidelines. In addition, you will be required to formally elect to retain your ability to claim for common law damages.

What Must You Prove About Your Employer’s Negligence?

You must prove that your employer’s negligence caused the injury. The evidence may depend on the circumstances of your accident. Relevant issues can include:

• Whether reasonable workplace safety measures were implemented
• Whether hazards were identified and controlled
• Whether appropriate training or supervision was provided
• Whether suitable equipment or protective measures were available
• Whether the employer failed to take reasonable precautions

What Compensation Can You Receive Through a Common Law Claim?

There could also be differences between common law damages and statutory workers’ compensation. The amount payable could vary depending on your injury and impairment. Where the degree of your impairment falls within 15% to less than 25%, the maximum damages limit is prescribed by WA law. In cases where the impairment is greater than 25%, the statutory maximum damages do not apply.

What Should You Do After a Workplace Injury?

The first thing to do after a workplace injury is to consult a doctor to manage the pain. Next, you can take the following steps:

• Get medical attention and report the injury to your employer.
• Collect and keep the medical records and evidence regarding the incident in an accessible place.
• Seek assistance from workplace injury lawyers Perth to facilitate the smooth processing of the claim.

What Should You Consider Before Settling Your Claim?

Before accepting the offer, it is necessary to consider how the acceptance will impact your future rights. There are several factors that you must take into consideration, such as:

• Impact on workers’ compensation benefits: The settlement will determine your entitlement to further statutory compensation for the current claim.
• Future medical expenses: You will need to evaluate whether the settlement you are offered takes into account future treatment and medication costs.
• Common law damages: Settling your workers’ compensation claim can affect your ability to sue for common law damages.
• Future earnings capacity: Your ability to earn a living and work needs to be considered.

Final Thoughts

If you had a workplace injury in Perth, you may sue your employer under Western Australia’s workers’ compensation system. A common law claim may also be available where statutory requirements are met and employer negligence can be established. The 15% permanent impairment threshold, formal election requirements and potential effect on existing benefits make these claims complex.

Before taking a legal pathway or accepting an offer, seek assistance from Personal Injury Lawyers Perth and review your circumstances against the current Western Australian legislation and WorkCover WA requirements. Considering these factors can help you get the most feasible outcome.