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By Amy Scanu
Workplace injuries are not always straightforward, particularly where a third party may also be responsible. In some situations, an injury can give rise to overlapping rights under workers compensation, work injury damages, and public liability law, depending on how and where the incident occurred.
Understanding how these areas interact is important in determining liability and ensuring an injured worker accesses all entitlements they may be eligible for.
When Can a Third Party Be Responsible?
Often work injuries occur in circumstances where a third party might also be liable.
Examples may include:
– A labour hire employee working at another company
– When a worker is employed by one company but works offsite as a contractor to another company, which is often the case in the construction industry or may be seen where a larger organisation contracts out some tasks such as cleaning or maintenance
– When a worker’s role requires them to perform duties in a public area or on private premises that are not owned or occupied by the employee. For example, a sales representative injured at a shopping centre or hotel lobby whilst travelling for work, or a disability support worker injured at the park whilst looking after a client
So, what happens to these employees when they are injured? Who is responsible?
Workers Compensation Entitlements
As a starting point, these injured workers will usually be entitled to make a workers compensation claim. In NSW, a work injury is compensable in circumstances where the injury “arose out of or during the course of their employment”, which is a very broad definition.
Under the Workers Compensation scheme, an injured worker can access benefits including weekly payments, medical expenses, and domestic assistance. They may also be entitled to lump sum compensation if they reach the required thresholds. Whilst these benefits sometimes have to be repaid in full or part if a third party is found liable, it gives the injured worker immediate access to benefits and support.
Work Injury Damages vs Public Liability Claims
If the injured worker is assessed with at least 15% whole person impairment, they can then bring a work injury damages claim against their employer. This threshold will be increasing for psychological injuries from 1 July 2026.
If a third party was responsible for the injury, the injured worker may also have rights to bring a public liability claim against that third party. Importantly, there is no impairment threshold required to pursue a public liability claim.
A key difference between a work injury damages claim against an employer and a public liability claim against a third party is the types of damages that can be recovered. Against an employer, the only head of damage available is economic loss. In contrast, against a third party, damages can include economic loss, non-economic loss, and past and future out-of-pocket expenses such as medical expenses, home modifications, domestic assistance, and attendant care. As a result, the potential damages are often more substantial.
How Is Liability Determined?
When considering liability, it is necessary to assess how the injury occurred, how the risk of harm could have been reduced or avoided, and where responsibility lies within the broader relationship between the employer, the third party, and, in some cases, the employee where contributory negligence is involved.
In some matters, liability will rest entirely with one party; however, more commonly, it is apportioned between multiple parties on a percentage basis. For example, an employer may be 30% liable and a third party 70% liable.
Damages will then follow in these same proportions. In this example, the employer would be responsible for 30% of economic loss only, while the third party would be responsible for 70% of the broader range of damages.
Why Legal Advice Is Important
As shown above, these matters can often be quite complex, particularly where multiple parties are involved.
However, they can also result in a broader range of entitlements and potentially higher overall compensation than a claim against an employer alone. It is therefore important to seek legal advice if you believe a third party may also be responsible for your injury.
