Worker establishes factual issues for common law claim by the employer’s acceptance of his workers compensation claim

20 November 2019

A truck driver made a claim after he did not recover from two injuries that he initially shrugged off. The worker successfully established the employer's negligence following a dispute as to whether the events that caused the worker’s injuries even occurred.

In issue

  • Impact of accepting workers' compensation claim on worker's common law claim.

The background

The worker claimed to have suffered two injuries in the course of his employment on 21 May 2013 and 19 July 2013.

Initially, the worker neither reported the injuries nor sought any medical treatment. After a continuation of pain the worker reported his injuries to the employer on 29 August 2013. The statutory claim was accepted. When common law proceedings were commenced the employer subsequently denied that the events that led to the injuries ever occurred, and denied any negligence.

The decision

The County Court of Victoria concluded that both injuries did occur but only held the employer liable for negligence in respect of the second injury.

In determining whether the events did in fact occur, Misso J listed five pieces of evidence before stating 'most importantly and persuasively' the plaintiff lodged the claim where he describes each incident. The claim form was a key piece of evidence to support the worker's claim that the events did occur. Importantly, the claim form was accepted by the employer.

Implications for you

Acceptance of the worker's claim form can be used as evidence to assist a worker in proving that the events alleged to have caused the worker’s injury. This has long been the case in Victoria. [1]

This is significant in circumstances where the employer accepts the worker's claim, say for the purposes of reducing costs or because it accepts that there is a compensable injury, but the employer contests the circumstances that caused the injury.

If the circumstances described in the claim form are inadequate or contested, and there is any risk of a common law action, we believe that the best course for the employer is to investigate the circumstances immediately. This will provide relatively contemporaneous evidence to contest the history as put by the worker.

Workers Compensation Process in Victoria

The process of making a Workers Compensation claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is as follows:

  1. Worker files a claim form with the employer.
  2. The employer has 28 days to assess the claim and determine whether the claim has been accepted or rejected. If it is not rejected within 28 days, the claim is deemed to have been accepted and compensation is payable (s75).
  3. In order to bring a common law claim the worker must have a 'serious injury'.

Viher v Miles Transport Pty Ltd [2019] VCC 1008 (11 July 2019)

[1] See for example Ansett Australia Ltd v Taylor [2006] VSCA 171
Zac Bury
Hannah Hughes

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