Further to earlier postings about the discussion paper concerning WorkCover Queensland’s common law reforms, I refer you to the full media statement by the Premier and Attorney General published today.
The Queensland Government has ruled out placing any restrictions on injured workers’ access to common law claims for compensation.
Harmonisation with Civil Liability Act
The government will harmonise arrangements with the Civil Liability Act 2003, to ensure consistency across all personal injury regimes. As a result, common law claims brought under the Workers’ Compensation and Rehabilitation Act 2003 will be harmonised with arrangements under the Civil Liability Act 2003 in terms of liability (standard of care), contributory negligence and caps on general damages and damages for economic loss.
General damages (pain and suffering) will be capped at $300,000. General damages make up the smaller proportion of damages awards, and are relatively stable across different personal injury schemes. Damages for economic loss (loss of future earnings) will be capped at three times Queensland Ordinary Time Earnings (QOTE) for the purposes of calculating annual earnings. QOTE is currently $1132.10 per week ($58,869 per annum). Three times QOTE is $176,607. This amount will be the maximum annual earnings a court will be able to take into account when calculating loss of future earnings.
The statutory scheme will remain unchanged.
Increasing onus of proof to prove employer fault
The decision of the Queensland Court of Appeal in Bourk v Power Serve Pty Ltd has led to increasing numbers of common law claims based on the perception that strict liability attaches to an employer if a work injury has occurred, regardless of fault. At the request of WorkCover and self-insurers, the Act will be amended to require workers to show that an employer breached a duty to take precautions against a risk of harm that was foreseeable, not insignificant, and in circumstances in which a reasonable person would have taken the precautions.
Costs against plaintiffs whose cases are dismissed
The Act currently allows costs orders only where the court awards more or less than a party’s final written offer of damages. This has been interpreted by the courts to mean that if the claim is dismissed, no costs are payable. The Act will be amended to allow courts to award costs against an applicant where a claim is not successful.
The employer excess will change from 65 percent of QOTE ($740 for most employers), to 100 percent of QOTE ($1132) or one week of compensation, whichever is the lesser amount. This will provide an incentive to employers to improve injury rates and is comparable with what employers pay in most other states and territories.
Structural review of Institutional and working arrangements
In addition to legislative changes, the government will conduct a structural review of institutional and working arrangements in Queensland’s workers’ compensation scheme. The review will consider the claims management, common law settlements, rehabilitation and return to work as well as the range of issues raised during the review. These include legal costs and other associated legal matters.
The WorkCover Queensland board has decided that an average premium rate of $1.30 should apply for the 2010-11 premium year.
Brisbane Barrister – David Cormack