Can I Claim Workers' Compensation Or Damages If Assaulted At Work Or On My Way To Or From Work?
The answer is “yes” you can.
If you are injured in the course of your work, whether it is by way of an assault or otherwise, you are entitled to claim workers’ compensation for you work injury.
Your claim will be made against the workers’ compensation insurer of your employer, which is in most cases WorkCover Queensland.
In some limited cases, employers fund workers’ compensation claims internally and are called ‘self-insurers’.
Can I Get Work Accident Journey Compensation?
Frequently Asked Questions About Assault At Work Or Travelling To/From Work
Your workers’ compensation claim will provide you with weekly benefits in lieu of wages and funding of medical treatment, rehabilitation and aids required due to your injuries.
Once your doctors advise WorkCover Queensland or the self-insurer that there is no further treatment they can provide to help improve your injuries, then your workers’ compensation claim will cease.
At the end of your workers’ compensation claim, the workers’ compensation insurer will assess your injuries for permanent impairment, either by their own initiative or at your request.
Offers given are usually quite minimal and do not cover all the loss and damage you are likely to sustain due to your injuries.
For example, you may be a bricklayer who was assaulted at work by a fellow worker, causing you to fall and sustain a back injury.
In the example above, if the bricklayer was assessed as having sustained a 3% whole person impairment due to his back injury, then the lump sum offer that the insurer will make to him at the end of his workers’ compensation claim will be around $9,000.
This will not provide any assistance to the bricklayer if he can no longer do his bricklaying work because of his back injury.
The only way the bricklayer will obtain proper compensation for the loss and damage he has sustained, is by bringing a Common Law claim for the injuries he sustained in the assault.
Using our bricklayer example from earlier questions, the bricklayer can bring a Common Law claim against the co-worker who assaulted him, but this would only be viable where the co-worker has funds to meet the claim involved. Most co-workers do not have sufficient monies to meet a Common Law claim against them.
However, where the assault has occurred due to the negligence of the employer, then the bricklayer could bring a Common Law claim against the employer for the loss and damage he has sustained because of the assault injuries, and that claim will be met by the employer’s workers’ compensation insurer, which in most cases is WorkCover Queensland.
However, just because the bricklayer was assaulted at work, does not automatically mean the employer was negligent in respect to that assault. A physical assault on a person is a criminal act and, unlike a case where a work injury has resulted from a negligent act of a co-worker in the course of their normal duties, an employer is not automatically liable for the criminal actions of an employee.
For the employer to be found liable, it has to be shown that the assault has arisen as a consequence of some negligent act or omission on the part of the employer. This will usually be found where, for example, the employer was aware, or ought to have been aware, that its worker, who committed the assault, had a history of violence or threats of violence against co-workers.
Or where a supervisor at the work site ought to have observed the threat of the assault occurring if the supervisor had been properly supervising workers at the work site.
Sticking with our bricklayer example from earlier questions, if the bricklayer told his employer that he felt physically threatened by the co-worker in the days prior to the assault, and the employer failed to investigate that complaint, then a claim may exist against the employer for not taking appropriate action to investigate and remedy the risk of the assault occurring.
Where an assault occurs in the workplace by a party outside of employment, for example in a hold up, or in an assault by an angry customer, once again, there is usually no point in pursuing a Common Law claim against the perpetrator, despite there possibly being such an entitlement, as they will most likely not have any monies to meet the claim.
Whether the injured worker has a Common Law claim against the employer will depend on whether the assault was reasonably foreseeable to the employer and whether the employer had taken reasonable care, as a reasonably prudent person in their position would have, to remedy that risk exposure.
For example, where a 24 hour convenience store has had a number of hold ups, and the employer takes no steps to try to increase security which could significantly reduce a worker from being subject to an assault, if a worker suffers injury from being assaulted during a hold up, the employer may be liable for the injuries the worker has sustained.
But where the employer could not have reasonably foreseen the assault, or had taken all reasonably practical steps to remedy such risk exposure or to minimalise it as much as reasonably possible, then the employer will likely not be found liable.
Right here. The Personal Injury Lawyers have successfully handled a multitude of cases involving claims for compensation and damages arising from assaults in the workplace.
Such claims have included cases where injuries have been sustained during robberies, assaults by aggressive co-workers, assaults by customers or some other third party entering the workplace.
Sometimes the negligence of the employer was due to their not taking sufficient steps to protect their staff from such events occurring and, also, because they should have been aware of the aggressive nature of the co-worker and the threat of injury occurring but failed to take any action.
An example of a case where an assault in the course of work was not accepted in Queensland is the decision of Adlington v Dominos Pizza Enterprises Pty Ltd 2016 QDC 84, handed down in the Brisbane District Court on 15 April 2016. In that case, a worker was assaulted by youths whilst dumping rubbish in the commercial bins at his workplace, after the store had closed.
The Court found that the employer, Dominos Pizza, had taken adequate steps to instruct its workers in how to deal with violent situations in the course of their work in its pizza stores, and there were no further steps that it could have reasonably taken to have avoided the risk.
The Court also held in that case that the worker who was assaulted had placed himself at risk by antagonising the youths prior to the assault occurring by yelling things out at them, as a result of which they responded by assaulting him.
The Court held that this was inconsistent with the instruction and training the employer had provided to the worker in how to deal with violent situations during his work (e.g. robberies), namely not to antagonise offenders when placed in such threatening situations. The Court considered that had the worker adhered to the instruction and training provided, the assault would most likely not have occurred. It’s also worthwhile reading the case of Packer v Tall Ships Sailing Cruises Australia Pty Ltd 2014 QSC 212.