The relationship between an employer and an employee is well-established as one that involves a duty of care.

Every employer is under a duty to ensure that reasonable care is taken for the safety of employees. Generally speaking, this duty requires the employer to provide and maintain safe plant and equipment, select skilled and competent employees, provide a ‘safe system’ of work, and adequate training and instructions.

When an employee is injured at work as a result of the action (or inaction) of another employee, the employer can be held responsible – or vicariously liable – for the harm or injury that results. Common examples of the injuries an employer can be held vicariously liable for include physical injuries caused by a co-worker’s negligence or injuries arising from discrimination or sexual harassment by one worker towards another.

The conduct by the negligent employee must have taken place in the scope or course of their employment. Court rulings have suggested the ‘scope or course’ of employment is construed broadly, meaning the harmful behaviour or acts is not necessarily limited to when an employee is carrying out their job. An incident occurring at a work-sponsored social event such as a Christmas party, for example, may result in vicarious liability for the employer.

An employer is unlikely to be held vicariously liable for negligent acts by an employee where that worker’s actions constitute serious and wilful misconduct or are outside the scope of employment. An employee who causes another worker’s injury may remain personally liable for the harm and be the subject of separate legal action.

How does the concept affect workers’ compensation claims?

Under Queensland’s workers’ compensation scheme, a person maintains the right to make a common law claim and seek damages from an employer if they believe their injury was caused by the negligence of either the employer or a fellow employee.

When making this claim the onus is on the employee to prove that the employer breached its duty of care, resulting in injury, pain, suffering and loss of income. In cases of vicarious liability, the proof is required that the employer’s negligence allowed the person who caused the injury – such as a co-worker who sexually harasses a colleague – to indulge in the harmful behaviour.

Once an employee decides to make this type of claim, any ‘no fault’ statutory claim for workers’ compensation benefits that were made will come to the end. A medical assessment by a medical practitioner or the Medical Assessment Tribunal will determine the employee’s degree of permanent impairment (DPI), after which WorkCover may offer the employee a lump sum payment in a Notice of Assessment (NOA) letter.

A worker with a DPI above 20 per cent can accept the lump sum payment and make a common law claim – otherwise, the offer ends once the common law claim is pursued.

The claim against the employer will begin with a notice of claim for damages describing the allegations of negligence against the other employee and the reasons for the employer being vicariously liable for the harm suffered. This claim must generally be made within three years of the injury being sustained.

While the employer is named in the proceedings as the defendant WorkCover Queensland will pay the damages under the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

What damages can be claimed?

The common law claim can seek compensation for:

• the loss of past and future income, including superannuation contributions;
• pain, suffering and loss of enjoyment of life;
• past and future special expenses (including medical, rehabilitation and pharmaceutical expenses, travel expenses, care, assistance, aids and equipment).

Any final damages pay-out, it should be noted, will be reduced by the amount of any compensation already paid by WorkCover.

As mentioned, the procedure for making the claim begins with a Notice of Claim after which WorkCover has six months to conduct its own investigation into a liability for the accident. It will then make a determination on liability. Once all parties involved have been notified, a compulsory mediation or settlement conference must be held within three months of that notification.

The need for expert legal advice

Proving the negligence of an employer or its vicarious liability for the actions or inactions of another worker in causing an injury at work can be a complex and drawn-out business. Seeking the guidance of expert compensation legal professionals who understand what is required to establish an employer’s vicarious liability is a sensible course of action to ensure the chance of setbacks and obstacles to the claim are minimised.

Employers and WorkCover can raise numerous issues to suggest the company bears no liability for the worker’s injury, including that the employee’s own actions or inactions contributed to the injury.

A compensation specialist with experience in how to respond to these issues is vital to a successful claim. Call Lifestyle Injury Lawyers Gold Coast today if this article raises questions about your own work injury.