November 10, 2014

The issues that can arise when a person is injured at work as the result of a car accident were highlighted in a recent District Court case.

The plaintiff was hit by a car while crossing the road to do her employer’s banking. As she was entitled to Workers Compensation a claim was made, although there was a delay before she began to receive weekly income maintenance payments. When there is a delay in paying an injured worker compensation for lost income then they are entitled to interest and in this case, as a result WorkCover had to pay her over $3,000 interest on the backpay.

In addition to compensation for lost income, she was paid under the WorkCover claim for medical expenses, and a lump sum for permanent disability caused by the accident to a total of $46,055.16.

There are limitations on the amounts payable under Workers Compensation that don’t apply when a person sues the driver of a car who is responsible for the accident. Therefore, the woman also commenced a claim against the driver for damages. The result of that case was that the Court found that her losses were just over $237,000, however that amount was reduced by 10% on the basis that the Court found the woman to be 10% responsible for the accident. The basis for that sort of reduction is referred to as ‘contributory negligence’ and the result was that the woman was awarded $213,820. A Workers Compensation claim, however, is not subject to any reduction for contributory negligence.

The WorkCover legislation provides that if the injured worker recovers damages from a third party who was responsible for the accident, then the insurer is able to recover back from the worker any compensation paid for that work injury. So in this case WorkCover claimed back from the injured woman the $46,055.16 that had been paid to her under her Workers Compensation claim on the basis that she was going to receive the $213,820 damages. The woman argued that since her damages had been reduced by 10% for contributory negligence then she should only have to pay back to WorkCover 90% of the compensation she had received under her Workers Compensation claim.

The District Court ruled that this was not the case and that WorkCover were entitled to recover the full amount that it had paid in compensation. The only limit on how much it can recover is that it cannot exceed the amount of damages that the injured person received from the other party. So in this instance, if the woman had actually been 90% at fault in the accident, then WorkCover would basically have been entitled to receive all of the damages she was awarded.

Some might consider that a real issue of fairness relates to the interest paid by WorkCover. The amount recovered by WorkCover included that $3,000 interest that it had paid to the injured woman because she had not been paid her entitlement to income maintenance when it was due. The woman separately argued that this interest component should not be recoverable by WorkCover because it was not ‘compensation’ paid to her by the insurer. The District Court concluded that since ‘compensation’ means ‘any monetary benefit payable under the Act’ then the requirement to pay interest is such a benefit, and WorkCover were entitled to claim it back.

As this case shows, when a work injury occurs in circumstances that give rise to a separate claim for damages against a third party it is very important to engage a firm that specialises in both areas of personal injury law. Websters Lawyers have personal injury lawyers who specialise in car accident injury claims and Workers Compensation claims. They can advise you how these two claims interrelate and how to handle the claims taking into account such issues as any potential WorkCover recovery so as to minimise the costs and maximise the amount you receive. A separate claim for damages isn’t limited to car accidents, but can arise whenever the work injury occurs as a result of the negligence of another party and if your unsure whether or not that is the case contact Websters Lawyers to arrange a free initial consultation to find out more.

Cocca v Salkeld (No 2) [2014] SADC 157