Work accidents involving cross-border parties

16 Sep 2015


  • Compensation
  • Personal Injury

What compensation laws apply to a worker who is injured whilst undertaking a specific job in the ACT  for an employer based in NSW or another state?

Are his or her workers’ compensation rights, and more particularly his or her right to claim damages for personal injury at common law affected, defined by the laws of the ACT or some other state or territory?

These issues become critical in circumstances where a worker’s rights are limited by the interstate law, compared to Canberra’s unfettered common law jurisdiction. The ACT has retained total common law rights to damages so that a Canberra worker, injured as a result of the negligence of his or her employer has an unfettered and unlimited right to claim compensation for general damages, past economic loss, future economic loss, treatment expenses and care.  Those types of entitlements are not readily available in some other states or territories.

The situation was dramatically illustrated in a recent case we conducted in the ACT Supreme Court.  A worker was sent to Canberra to undertake particularly dangerous work at a petrol station and was seriously injured when a fire ensued.  His employer, however, was based in Queensland and also undertook a great deal of work in metropolitan areas around Sydney, NSW.  The compensation laws of the ACT, NSW and Queensland are quite different and create different outcomes.

As a result of his injuries, our client was incapacitated for work and required extensive medical treatment.

The provisions of the ACT Workers Compensation Act have specific provisions defining which law should apply in situations such as this.  Section 36A of the Workers Compensation Act and the following sections, provide that compensation is only payable under the ACT scheme if the ACT is the state of connection.  The legislation requires a number of tests to be applied before that state of connection is determined, and in this particular case, as the worker had not previously worked in Canberra, we had to look at the state or territory where he was usually based for the purposes of the employment.  Although his employer was based in Queensland, he usually worked in NSW and accordingly, for the purposes of workers compensation, NSW became the state of connection and its workers’ compensation insurance scheme applied and he immediately received incapacity payments and medical costs.

The next pitfall arises out of the application of the NSW law to the injured worker’s potential claim for additional damages for negligence.  After a rather complicated analysis of the NSW Workers Compensation Act, we came to the conclusion that our client would only be entitled to claim extra damages over and above workers compensation, if he satisfied the provisions  in the NSW Workers Compensation Act relating to common law liability which imposed a threshold of 15% whole person impairment before any damages are awarded.  It is a very restrictive scheme and has the result that the worker receives significantly less compensation than would be the case if his usual place of employment was in Canberra.

Accordingly, we need to be very careful in the way such claims are prepared and presented, so that the worker recovers the maximum damages available to him under the relevant compensation scheme.

For more information about how we can assist you, please contact our Personal Injury team today.