Can I sue my employer for a work injury?

In most of Australia you can sue a negligent employer for a work injury through a common-law 'work injury damages' claim, but it is separate from your no-fault workers' compensation and you must prove the employer was negligent. The exception is the Northern Territory, where common-law claims against employers were abolished in 1987 — you cannot sue there. Every other scheme allows it, but on different terms: NSW, Victoria, South Australia and Tasmania set a whole person impairment (WPI) gateway; Queensland, WA and Comcare tie it to an election or trade-off against statutory benefits; and the ACT has no impairment threshold at all.

What is the WPI threshold to sue for work injury damages?

The whole person impairment (WPI) gateway differs by state. NSW requires at least 15% WPI (work injury damages, limited to economic loss). Victoria requires a 'serious injury' — either 30% WPI deemed, or a successful narrative 'severe consequences' test below 30%. South Australia opens common law to a 'seriously injured worker' at 35% WPI for physical injury or 30% for psychiatric injury. Tasmania requires 20% WPI. WA requires 15% (capped damages from 15-24%, unlimited at 25% or more). Queensland abolished its threshold in 2015 (no WPI gate, but a 20% degree-of-impairment election applies), the ACT has no threshold, the Commonwealth Comcare scheme has no threshold but a section 45 election, and the Northern Territory has no common-law pathway at all.

Do I have to prove my employer was negligent to claim work injury damages?

Yes. Common-law / work injury damages is a fault claim. You must prove your employer (or another party) owed you a duty of care, breached that duty, and that the breach caused your injury. This is different from your statutory workers' compensation, which is a no-fault entitlement you receive without proving negligence. Negligence is often the hardest part of a damages claim, so get legal advice early.

Can I claim workers' compensation and sue my employer at the same time?

It depends on your scheme. In some schemes the two are an either/or election. In Queensland, if your degree of permanent impairment is below 20% you must make an irrevocable election between the statutory lump sum and common law; at 20% or more you can keep the lump sum and pursue common law as well. Under Comcare, a section 45 election to sue forecloses the section 24 permanent-impairment lump sum, and the damages you can recover are limited. In WA, electing for common law affects your statutory entitlements. Because these elections are often final, get legal advice before signing a lump-sum offer or starting a claim.

Which states allow common-law work injury damages claims?

NSW, Victoria, Queensland, South Australia, Western Australia, Tasmania, the ACT and the Commonwealth (Comcare) all allow common-law / work injury damages claims against a negligent employer, on different terms. The Northern Territory does NOT — common-law damages against employers were abolished there in 1987 under a no-fault scheme. The ACT is the most open, with no whole person impairment threshold for a common-law claim.

Common Law Work Injury Damages Eligibility Checker

Check whether you may be able to sue for work injury damages (common law) and the whole person impairment gateway in your state.

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Suing your employer for a work injury is a common-law 'work injury damages' claim — separate from no-fault workers' compensation, and it requires proving employer negligence. Whether you can bring one, and the whole person impairment gateway you must reach, differs in every state. The Northern Territory abolished common-law claims against employers in 1987; the ACT has no threshold; most other schemes set a WPI gateway or an election. Choose where you work to see your pathway, then get advice. See also the permanent impairment lump sum checker and the workers compensation claim navigator, and the safety hub at /safety-hub.

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