WorkCover Queensland has been under financial pressure recently and this is due partly to the increase in common law claims.

On Tuesday 27 April 2010, the Queensland Government announced a number of amendments to the Workers Compensation Scheme.

This was in response to recommendations from the WorkCover Queensland Board. The government will introduce a number of reforms which will assist in helping to secure WorkCover’s financial stability by addressing the growth in common law claims and claim costs. Despite the recommendation of the Board, the government has announced it will not be restricting injured workers’ access to compensation through the courts. These changes include:

  1. Targeting poor safety performance – employers with a poor safety record will have their performance monitored with the view to increasing their premiums if their performance does not improve.
  2. Proving employer fault – the decision in Bourk v Power Serve Pty Ltd [2008] QCA 225 has essentially enabled some injured workers to succeed in claims for damages on the basis that the employer is in breach of its workplace health and safety obligations. This has arguably led to the increase in the number of common law claims. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) will be amended to now require workers to show that an employer breached a duty to take precautions against a risk of harm that was foreseeable, not insignificant and in circumstances in which a reasonable person would have taken the precautions.

What does this mean for employers?
This means that showing a breach of the Workplace Health and Safety Act 1995 (Qld) (WHS Act) is, of itself, not enough for a claimant. Given that it does not require much to breach a WHS Act obligation in Queensland, this will assist employers who want to resist liability for work related claims. This provides a better balance between the worker and the employer and offers the employer a defence if the cause of the injury was not foreseeable and significantly, if a worker takes an unreasonable risk, or put the other way, if a reasonable worker would not have taken the risk.

This highlights the importance of what goes into incident investigation (ie ICAM reports) and being forensic about causality. These reports should be simple and non-emotive. Employers should keep to the facts in these reports and not speculate about who is to blame for the incident. Further, the report does not have to be confined to the problems with systems of work but rather where systems are working well an employer should include this in the report.

The legislation to implement these reforms is expected to be introduced into Parliament by the middle of 2010. The government aims to review the effectiveness of the reforms at the end of 2012.

For more detail, see the press release