As a result of a work related injury – Prior to 12 October 2020
An injured employee with an accepted workers’ compensation claim may also have a potential Common Law claim against the employer for negligence if it can be proven that the employer had failed in their duty of care to the employee. Pursuant to section 93O of the Workers’ Compensation and Injury Management Act 1981 the limitation period which governed the time frame in which an employee was able to bring a Common Law claim against the employer was known as the “Termination Date”. The Termination Date was a period of 12 months from the date on which the insurer accepted liability for paying the injured employee weekly compensation payments. Prior to the expiry of the Termination Date the injured employee had to make a decision as to whether they would elect to pursue a Common Law claim against the employer or remain on the statutory prescribed amount within the workers’ compensation claim.
If the Termination Date was missed by the employee, the employee lost their right to pursue a Common Law claim due to the Application of s.93O. However as of 12 October 2020, a bill was passed in Parliament which abolished the Termination Date. The Termination Date has now been replaced with the Limitations Act 2005 and is consistent with most other personal injury Statue of Limitation Expiry periods. That is a period of three (3) years that runs from the employee’s date of injury. As such, if an injured employee sustained a work related injury on 2 August 2020, the time limit for bringing a common law claim would fall on 1 August 2023. This change in the law is retrospective, meaning if your injury occurred in 2018, subject to which month and date, you may still be entitled to consider a Common Law claim against the employer. This is of course subject to proving Negligence and you reaching the required threshold of 15% Whole Person Impairment. The benefits of pursuing a Common Law negligence claim allows the injured employee to recover damages for injuries that are more aligned with the actual loss that the employee has sustained.
We would urge anyone with a workers’ compensation injury that occurred in Western Australia to review their position and seek legal advice provided they are still within the three (3) year Statutory Limitation Period.
If the date has been missed and your Statutory Limitation Expiry period of 3 years has passed, you will now become Statue Barred from pursuing a Common Law claim against your employer, leaving you with the only option of the prescribed capped amounts within your workers’ compensation claim.