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Construction Accidents

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Claiming compensation for construction Accidents

If you are a worker on a construction site, you are protected by the Work Health and Safety Act (WHS) and the WA Code of Practice for Construction Sites (Code) published in accordance with Section 274 of the WHS.  The WHS and Code further regulates the duties and obligations of your employer on a construction site, which is deemed to include all work performed in respect of either commercial, civil or housing construction.

If you have sustained an injury on a construction site you may be entitled to receive financial compensation. A & E Legal can assist. Our experienced solicitors will engage on your behalf and assist you with proceeding with a claim for the compensation that you deserve.

Can I Claim?

Anyone who is defined as a worker on a construction site pursuant to the Workers’ Compensation and Injury Management Act 1981 (WA) (Act), can claim entitlements. The Act defines a “worker” in section 5 as a worker who is:

  • full-time;
  • part-time;
  • casual;
  • seasonal;
  • on commission;
  • a contractor and sub-contractor (with exceptions); and
  • a working director (with exceptions).

Even if you do not fall under one of the above categories of a worker, you may still have a claim, although not in terms of the Act, but against the construction company itself should it have negligently breached any obligation it owed to you whilst on a construction site. We will however assist you in determining under which category your claim will fall. 

What can I claim?

You can claim for loss of earnings (also known as weekly payments), payable to you in the same manner and frequency that you are normally paid. Weekly payment amounts are capped (limited) to twice the average weekly earnings for an adult in WA.

You can also claim for medical expenses such as:

  • Ambulance;
  • First Aid;
  • GP and specialist attendances;
  • Hospitalisation;
  • Treatment;
  • Dental;
  • Physiotherapy;
  • Occupational therapy;
  • Chiropractic manipulations;
  • Psychiatry;
  • Psychology;
  • Pathology;
  • Exercise programmes.

Rehabilitation costs to assist you in staying in or returning to work due to the injury sustained at work are also claimable.

Your reasonable travelling expenses incurred for trips to and from the medical treatments and appointments as well as trips to the rehabilitation provider are all claimable. You should keep a record of all such trips. If you live outside Perth, the costs of accommodation and meals are also claimable.

Rehabilitation costs to assist you in staying in or returning to work due to the injury sustained at work are also claimable.

Am I entitled to a lump sum payment?

You may be entitled to an additional lump sum payment  (Schedule 2 payment) from the employer or its insurer if your injury or illness is a permanent physical or psychological impairment. This is dependent on the nature and extent of your injury after having been evaluated by a doctor (Approved Medical Specialist) who will provide your Whole of Person Impairment (WPI) expressed as a percentage. The WPI assessment is normally provided when your condition has stabilized and will not change.

What are common law damages?

You may also be entitled to sue your employer in the District Court of WA in certain circumstances for common law damages. These are damages that may be awarded to you by a judge (or agreed upon with your employer or its insurer prior to trial). To be awarded common law damages you will have to prove that the injury or illness you sustained at work was due to the negligence of your employer.

You have to comply with the following to commence a common law claim in the District Court of WA:

  • your WPI assessment must be 15% or more; and
  • you must indicate your willingness to commence common law proceedings by electing to do so on an Election to Retain Right to Seek Damages Form before the Termination Day.

What is my Termination Day?

The Termination Day is defined in section 93M of the Act to be a date one year from the date that your claim for weekly payments was made with your employer. If after a period of 3 months from when the claim is made with your employer, you are notified that the claim has been accepted then the Termination Day is 9 months after you were so notified.

If your claim is related to an industrial disease such as asbestosis, mesothelioma, lung cancer or chronic bronchitis, then the Termination Day does not apply to your claim.

As an example of the workings of a Termination Date, in the matter of Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5, Wesfarmers Kleenheat Pty Ltd (Kleenheat) bought an application in the District Court for Luisa Marina Reale’s (Ms Reale) action against them to be dismissed for want of jurisdiction to award damages. Ms Reale sought damages for injuries she suffered whilst employed with Kleenheat and alleged that Kleenheat had been negligent and/or breached its contract of employment with her. Kleenheat denied that Ms Reale was entitled to damages because she had failed to elect (before her termination day) in the prescribed manner to retain her right to seek common law damages pursuant to section 93K(4) of the Act.

The District Court concluded that because Kleenheat had, amongst other factors, failed to provide adequate notice to Ms Reale (pursuant to section 93O of the Act), she had elected correctly to retain the right to seek common law damages and therefore the Court had the jurisdictional prerequisite to award damages if established. 

When and how should I lodge a claim?

You should report the injury immediately and do the following steps:

  • seek first aid immediately;
  • report the injury to your employer if you able to do so;
  • go to the GP of your choice;
  • request your GP to complete a First Certificate of Capacity;
  • request a Claim Form from your employer;
  • complete the Claim Form and hand it to your employer with a copy of the First Certificate of Capacity as soon as possible within 12 months from the injury; and
  • keep copies of all documents

Are there time limits I should know about?

You are required to submit a notice of an injury and make a claim for compensation as soon as practical after an injury. If you allow the expiry of 12 months from the date of the injury, you would need to obtain legal advice, as it may be too late if you wait for the Termination Day to approach. If you do not progress with a legal claim (not just reporting a workers’ compensation claim) immediately, then you may lose your right to claim.

We recommend that you contact us as soon as possible.

How long will it take and how much does it cost?

We will attempt to get through the claim procedure as quickly as possible by seeking the relevant expert medical advice from your doctors to ensure that your claim is settled at the right time. We will answer all your questions about legal costs at the first free consultation with you. However, in the event of a successful resolution of your claim, your employer or its insurer will make a contribution to cover some of the costs.

Is the first consultation free?

The first consultation is free with no obligation on your part to proceed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.