Navigating workplace incident claims

What is an incident in the workplace?

Every state and territory in Australia has Work Health and Safety (WHS) legislation enacted to protect workers from injury. These legislative provisions require businesses to notify their WHS regulator of ‘notifiable incidents’ that occur at the workplace.

It is important to note that WHS legislation differs slightly between states and territories. If you are unsure of what constitutes a notifiable workplace incident in your state or territory, you should contact your relevant regulator for advice.

In Victoria, a notifiable incident is:

• The death of a person
• A person requiring medical treatment within 48 hours of exposure to a substance
• A person requiring immediate treatment as an in-patient in a hospital, or
• A person requiring immediate medical treatment for-
  • the amputation of any body part
  • a serious head injury
  • a serious eye injury
  • separation of skin from underlying tissue (e.g. de-gloving or scalping)
  • electric shock
  • spinal injury
  • the loss of bodily function
  • serious lacerations

Notifiable incidents are not limited to employees – they are inclusive of any person (e.g. a member of the public) injured at a workplace.

‘Near misses’

Some work-related incidents must be notified even if no one has been injured. Worksafe Victoria must be notified of the following workplace incidents if it threatens someone in the immediate vicinity’s health and safety:

• A registered or licensed plant collapsing, overturning, falling or malfunctioning
• Collapse or failure of an excavation, or shoring supporting an excavation
• Collapse or partial collapse of a building structure
• An implosion, explosion or fire
• The escape, spillage or leakage of any substance
• The fall or release from a height of any plant or object
• The overturning or collapse of any plant, the inrush of water mud or gas, or the interruption of the main ventilation system in a mine

COVID-19 incidents

Employers are required to notify WorkSafe Victoria immediately upon becoming aware that an employee, independent contractor or contractor’s employee has tested positive for COVID-19 and attended the workplace during the infectious period.

What are the most common types of accidents in the workplace?

• Slips, trips, and falls – slippery and/or uneven surfaces are commonly seen throughout an array of different workplaces.
• Falling from ladder and scaffolding.
• Body stressing – a common type of accident that often involves muscle strains from lifting, carrying, and/or putting things down. This type of injury can be caused by repetitive stress on muscles, ligaments, and tendons over a long period of time; or it can happen suddenly, for example slipping a disc.
• Being hit by falling objects – improperly secured and loose objects are seen in a range of workplaces.

Why it is important to report accidents and incidents that occur in the workplace?

Even if you are not involved in a notifiable incident, it is important that you report if any injury or accident occurred in the workplace to your supervisor or employer. An incident report can be used as evidence if you wish to make a compensation claim for your injuries in the future.

Reporting all workplace incidents also helps to ensure that safety issues in the workplace are addressed, in turn reducing the chance of other persons suffering similar injuries and resulting in another injured person.

Can I claim compensation for a workplace incident?

In Victoria, the WorkCover scheme provides compensation for workers who have been injured in the course of their employment. If you have sustained an injury due to a workplace incident, you may be entitled to claim compensation under the scheme. Similar workers compensation schemes are available in all other states and territories administered by their respective governing bodies. A list of these bodies can be found here.

WorkCover is a ‘no-fault’ scheme, meaning that injured workers are able to make a claim regardless of who is at fault. The injury does not need to be serious in order to make a claim, although the severity of the injury may limit your compensation entitlements.

In some cases, if you have suffered a serious injury and your employer was at fault, you may also be able to pursue a common law claim for damages. Your employer has a duty of care to provide you with a safe workplace. If this has been breached, and you have sustained an injury as a result, you could be entitled to seek compensation for your pain and suffering, loss of future income, and medical bills.

What to do if this information applies to you

Understanding what your rights and your entitlements are can be very complicated business. There are a lot of legal terms and particular legislation or legal policies which are applicable in some cases, but not in others, or apply in some states and territories, but not in others. It is important that seek legal advice as soon as possible following a workplace injury to ensure compliance with the relevant time limits and to maximize your legal claims.

At Gordon Legal, we understand that compensation claims are personal. For personalized and individual advice, we offer consultations to discuss your matter.

If you have been injured at work and believe you may have grounds for a WorkCover claim, call us today for an obligation-free discussion.

Please call Gordon Legal (Melbourne) on 1800 21 22 23 or our Geelong office on 1800 21 22 23 to speak with a member of our team.