Work injuries: the recent Court decision of Moir v I.C. Formwork Services Pty Limited (No 2)

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A recent case in March 2022 heard in the ACT Supreme Court serves as an important reminder about the differences between statutory workers compensation schemes across jurisdictions. The case of Moir involved an employee who worked across both ACT and NSW jurisdictions and concerned a dispute about whether he should be afforded entitlements for a workplace injury in accordance with the statutory framework of NSW or the ACT.

Given the prevalence of the inter-state work between the two jurisdictions, it is important that employers and employees are cognisant of the differences between the two schemes, and receive the best advice possible in relation to their entitlements and liability in relation to injuries sustained at work.

Background to Workers Compensation Schemes

By way of background, in each Australian jurisdiction, statutory workers compensation schemes operate on a no-fault basis. This means that a worker’s injury may be compensable in accordance with statutory entitlements irrespective of whether the employer is at fault.

The workers compensation schemes across the jurisdictions vary considerably in relation to how benefits and levels of impairment are assessed, rehabilitation and medical treatment involvement of the insurer, and the process in relation to review of decisions. However, they generally have similar frameworks when it comes to statutory entitlements. For example, most schemes include weekly benefit payments, payments for medical treatment, and a lump sum payment for permanent injuries.

Another form of compensation for a workplace injury is derived from the common law. Common law damages are independent from statutory entitlements and a worker’s right to claim damages from the employer in respect of a compensable injury is a liability independent of the relevant Act.

Unlike weekly payments under the statutory scheme, a common law damages claim may be awarded where a worker’s injury has resulted from the employer’s negligence. Generally, for a successful claim for damages at common law, the question to be considered is whether a reasonable person in the employer’s position would have foreseen that their conduct involved a risk of injury to the worker.

Most jurisdictions have substantially limited a worker’s access to common law damages. For example, in New South Wales, common law damages are only available where the injury has resulted in a degree of permanent impairment of at least 15 per cent (or the worker has died). In South Australia, workers with a compensable work-related injury will only be eligible to a common law claim for damages for economic-loss if they meet the 30% whole person impairment threshold.

However, in the ACT, the worker has access to unfettered common law damages. Where common law damages are unfettered, it means that there are no caps or thresholds to damages as a result of a workplace injury, which is unique to the ACT. Depending on the circumstances of the workplace injury the employee may be able to make a common law claim instead of, or as well as, a claim benefits under the statutory regime.

Moir v I.C. Formwork Services Pty Limited (No 2)

In the case of Moir, an employee, Mr Moir, sustained a back injury when he was required to lift a heavy piece of equipment at a worksite in New South Wales. Mr Moir wanted to access the ACT’s favourable unfettered common law damages regime, instead of the less favourable terms offered to him if he were categorised within the statutory workers compensation scheme of NSW.

Therefore, the issue for the ACT Supreme Court was to determine which jurisdiction’s statutory framework would apply to Mr Moir’s compensable injury, as Mr Moir conducted work in both NSW and the ACT.

Mr Moir argued that because the he usually worked in the ACT, the common law workers compensation claim arising out of the negligence of the employer should be determined by the law of the ACT. The case brought up various issues, such as how to determine where the employee usually works, and where the employer has their principal place of business.

Ultimately, the Court determined that Mr Moir’s claim for common law damages should be governed by the statutory framework of the ACT, and Mr Moir was able to access the ACT’s more favourable unfettered common law damages regime.

Due to the prevalence of Government workers in the ACT, it is worth noting that the statutory scheme for compensation for employees of the ACT Government and of the Commonwealth Government and its various agencies, is governed by the Comcare Scheme. The Comcare scheme is independent of and separate to the schemes which apply to employees working in private organisations in NSW and the ACT.

Given that there are various frameworks applicable across each jurisdiction, which may overlap, are subject to change, and may vary depending on whether an employee works for a private company or in the public sector, it is important that employers and employees are aware of how their personal circumstances may affect their entitlements under the relevant statutory regime or the common law.

MV Law can help by giving you frank, plain-English advice about work injury claims.