Key Takeaways

A solid understanding of the judicial framework through which workplace injury disputes and claims are resolved or decided often provides the foundation for achieving the best outcomes.

Background

Parties involved in disputes or claims arising from workplace injuries are often engaged in the conduct of litigation in various courts and tribunals in NSW.

Workplace injury disputes and claims are mainly dealt with in the following courts and tribunals:

• the Personal Injury Commission (PIC)
• the Supreme Court of NSW
• the District Court of NSW
• the Local Court of NSW

The PIC is a statutory tribunal that has exclusive jurisdiction to determine disputes arising between injured workers and insurers/employers regarding workers compensation entitlements and return to work.

The PIC deals with claims for weekly compensation payments, medical and related treatment, permanent impairment, death benefits and work injury management disputes.

Disputes are usually allocated to a Member of the PIC to determine issues on ‘worker’, injury, arising out of or in the course of employment, substantial contributing factor, medical and related treatment as reasonably necessary, which body parts were injured and the amount of compensation payable.

The PIC provides a forum for parties to resolve disputes by initially conducting a teleconference and then proceeding to a conciliation conference and failing settlement, an arbitration hearing to hear evidence and make a formal determination of the claim.

Supreme Court

The Supreme Court has jurisdiction to hear and determine personal injury claims including work injury damages claims against employers where the damages will exceed $750,000.

Before commencing proceedings on a WID claim, an injured worker must satisfy a number of pre-requisites that include; making a claim for lump sum compensation, that he or she has at least 15% WPI, serving notice of their intention to pursue a WID claim with details of the injury caused by the employer’s negligence, evidence of the negligent acts of the employer and details of the economic loss for which damages are claimed.

The worker must serve a pre-filing statement on the proposed defendant and then once a pre-filing defence has been served, lodge an application for mediation with the PIC.

If the claim cannot be resolved and proceedings are commenced, the worker must establish that their injury was caused by the employer’s negligence usually where the employer has failed to satisfy the non-delegable duty of care that an employer owes to its employees to take reasonable steps to avoid exposing them to a foreseeable risk of injury.

The worker’s entitlement to damages is limited to past economic loss and future loss of earnings and diminution of earning capacity.

Workers are not entitled to receive general damages for pain and suffering, domestic assistance, or treatment expenses that were traditional components of common law damages.

Importantly, the receipt of damages by the worker will extinguish all further entitlements to workers compensation.

District Court

The District Court has jurisdiction to hear and determine claims up to $750,000 so that an injured worker (or usually their lawyer) will need to decide in which court to commence proceedings depending on the severity of their injury and subsequent loss.

A worker may sometimes commence proceedings in the District Court and when it later becomes apparent that the damages award is likely to exceed the jurisdictional limit, ask the defendant to consent to the District Court having unlimited jurisdiction

If there is no objection to the court’s jurisdiction raised by any of the parties at least three months before the trial, then the court may award damages by an additional 50% up to a maximum of $1,125,000.

If a defendant objects to the court’s jurisdiction and refuses to concede unlimited jurisdiction, then the worker is required to apply to transfer the proceedings to the Supreme Court.

Local Court

The Local Court’s jurisdiction applies to claims up $100,000 with a Small Claims Division dealing with claims up to $20,000 and the General Claims Division hearing claims for over $20,000.

It would be unusual for an injured worker to pursue a damages claims in the Local Court as the sum that could potentially be awarded within the jurisdictional limit is unlikely to exceed their compensational entitlements.

Section 151Z Recovery Claims

Statutory claims for indemnity by which insurers seek to recover compensation paid from negligent third parties are usually brought in any of the three state courts as dictated by the jurisdictional limit.

Injured workers often commence proceedings against negligent third parties for damages in respect of their injuries that insurers monitor to protect their interest on recovery (a worker is obliged to repay the compensation out of any damages they receive for the compensable injury).

In some cases, the insurer may commence recovery proceedings that are then listed and heard with the worker’s proceedings against the third party given the factual and liability issues common to both proceedings.

Case Management

The conduct of proceedings are subject to directions and practice notes issued by the PIC and the various courts designed to case manage the proceedings.

An online forum operates in the District Court and the Supreme Court by which key procedural events such as pre-trial conferences, status conferences and directions are dealt with online. The online court is managed by a judicial officer with parties required to submit requests for orders for the ongoing conduct of matters, including timetables for the exchange of evidence, obtaining expert reports and other matters in preparation for hearing.

Alternative dispute resolution is strongly endorsed by the courts and orders will be made for parties to conduct an informal settlement conference or to participate in mediation before matters will be allowed to proceed to hearing.

Appeals

For each of the courts/tribunals there is an avenue for appeal from decisions as follows:

• From PIC to President PIC (on arbitral decisions), to Medical Appeal Panel from determinations by Medical Assessors and to Supreme Court (from Presidential decisions and MAP determinations)
• From Local Court to District Court
• From District Court to Supreme Court (NSW Court of Appeal)
• From Supreme Court (from single judge decisions) to NSWCA
• From NSWCA to High Court (with leave)

Implications

This summary offers an introductory guide to the framework and processes for those involved in the conduct of litigation in connection with compensation claims.

A good understanding of the courts and tribunals in which proceedings are conducted in relation to workplace injuries is often the key to properly managing the litigation and achieving the best outcome.