Navigating workers compensation claims with common law potential: Part 2

As we dealt with last month, it is good practice to identify any potential common law exposure early on to maximise the potential to defend such claims. Investigations for a common law claim need to identify the relevant duty of care, and identify any potential breaches, causation and any avenue for contribution by the worker or a third party.

It’s important to remember that a worker has three years from the date of the assessment of a 20% WPI to file their writ, formally initiating the common law action. If a worker receives their WPI assessment two or three years after the injury, the common law action therefore might not begin until five or six years post-injury.

Steps to take early in the claim

Where there is common law potential and the likelihood of a 20%WPI, it is crucial for employers to collect contemporaneous evidence early on in the workers’ compensation claim process. If investigations are delayed then information may be lost or compromised. Over time, memories can fade, employees may leave the workplace, and employers themselves might close, go bankrupt, or be acquired by other companies.

Signed witness statements are often a vital source of evidence which should be collected early to ensure accuracy and reliability. Capturing witness statements early helps preserve a snapshot of the incident, enhancing their credibility and usefulness if needed years later. Additionally, statements obtained closer to the time of the incident typically include more detailed observations and context, providing a clearer picture of what occurred.

In addition, photos and measurements might be taken before machinery is modified or altered (or even disposed of). It may mean that experts such as ergonomists, or engineers can properly evaluate a workplace and provide valuable evidence that addresses the issue of breach of duty.

Gather useful information and documents

By gathering evidence from the outset, you can:

• Preserve critical information ensuring important details such as physical conditions at the time of the incident and witness statements, are not lost over time.
• Establish a chronology of events leading up to the incident which can reveal how the worker’s action or omissions may have contributed to the harm. This is an important step when considering whether contributory negligence is an available defence.
• Identify case weaknesses and risks in the case strategy early on, allowing the employer to address those issues proactively.

Given the changes that can happen with employers, it is important to gather all work health and safety documents. This includes:

• Risk assessment reports.
• Job safety analysis (JSA’S and JHA’s).
• All safety policies and procedures such as workplace health and safety policies and emergency response procedures.
• Training records for the injured worker and relevant workers including; induction records and ongoing training certificates.
• Incident reports for the worker or for similar injuries to others.
• Hazardous substance registers.
• Maintenance records, especially if the incident involved machinery.
• Workplace safety inspections which record routine safety inspections which identify and address potential hazards.
• Plans and manuals for equipment used.
• Health records such as pre-employment health checks for the worker.
• Compliance documentation demonstrating adherence to work health and safety regulations and standards.
• Files notes of meetings of conversations with the worker (if relevant).
• Employment records.

Starting to collect these documents promptly is especially crucial when working with a host employer or contractor. The involvement of third parties can complicate the information-gathering process due to varying staff, systems, and policies and procedures.

Strategies for obtaining information in a timely manner

At times, a considerable amount of information needs to be gathered in what can be a short period of time. One key strategy for gathering information can be engaging a factual investigator to speak with witnesses and gather information from the employer. The employer’s legal team can brief a factual investigator to ensure they make all the relevant enquiries. Factual investigators have the ability to speak with a wide breadth of people, often including the injured worker. A factual investigator can also be a cost-effective strategy to ensure investigations are ongoing while the legal team manage the workers compensation matter.

Alternatively, the legal team can conduct their investigations concurrently with the investigations into the initial workers compensation issue.

Summary

Navigating a workers compensation claim with common law potential requires careful and proactive steps. Early intervention is key to securing evidence and documenting your case with contemporaneous evidence. Ensuring you are well informed and prepared from the outset will ultimately contribute to effectiveness and success of your claim.