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A worker injured in NSW may have a right to sue for modified common law damages along with other entitlements under the Workers Compensation Act 1987. A modified common law claim will mean that you will be compensated for your past and future economic loss.

Amendments to the Workplace Injury Management Act 1998 and the Workers Compensation Act 1987 in November 2001 resulted in significant changes to the rights of workers to claim Common Law Damages against their employer.

In order to be able to make a claim for modified common law damages a worker needs to fulfil the following requirements:

1) have suffered a permanent loss of at least 15% whole person impairment under AMA 5th Edition Guidelines.

2) The injury must have arose out of a 'breach of duty of care' or negligence on the part of the employer.

3) The claim must be lodged within 3 years from the date of injury.

A worker needs to establish that he has suffered form at least 15% whole person impairment. Your solicitor will make all the arrangements for you to attend an Approved Medical Specialist to assess your loss. In most circumstances this is done with no charge for the medical legal report.

Common law proceedings can not be commenced until the workers first obtains payment of his lump sum compensation for his permanent impairment. In some cases you may have already received compensation for permanent loss. It may be possible that the workers condition has deteriorated since they were last payed lump sum compensation for permanent loss and that a 'top up' claim may also be possible.

On some occasions a worker may have been assessed for permanent loss and not reached the 15% whole person impairment at that time to allow for a common law claim. If the condition has deteriorated it may be that on undertaking a new assessment of loss that a 15% whole person impairment or more be achieved.

If that is the case we can discuss the possibility of commencing a modified common law

In order to succeed in a modified common law claim we also need to establish that the injury occurred as a result of the negligent act of the employer and in some instances third parties responsible for the work site itself. Negligence can take many forms including inadequate protective clothing, faulty machinery, unsafe systems of work, lack of supervision or lack of proper training.

It is important to note, in order to increase your chances of success in a common law matter; you provide all relevant evidence concerning your matter to your acting solicitor. Evidence that will support to your matter may involve photos of the worksite, photos of the facilities utilised, a list of protective equipment used and provided by the work place and any standard procedural instructions that have been generated by your employer.

This will all assist the solicitor and the court to understand better the circumstances of the injury and to support the claim that there was a 'breach of duty of care'.

Any claim for modified common law damages must be made within 3 years of the date of injury. In some circumstances where the three year period has expired an application can be made to the court to allow the matter to be lodged 'out of time'. It is for this reason that seeking legal advise early , even if you are not sure, is critical. We at Gerard Malouf and Partners specialise in personal injury. We have more than 25 years of legal experience and would be more than happy to sit with you to discuss any possible entitlements.