Evidence in Personal Injury Claims

One of the worst experiences most small business owners face is that of a worker suffering an injury which then ultimately results in a WorkCover statutory claim. Assuming the Employer has paid their WorkCover Queensland insurance premiums (or other self-insurance premiums), the process post-injury generally is quite straightforward:

  • A claim is lodged.
  • Both the injured worker and the Employer provide details about whether an injury occurred.
  • If the two versions match, the statutory claim is opened, and the worker receives medical treatment and, assuming the worker is unable to work for any length of time, weekly income benefits.

While the above process is relatively straightforward, sometimes the end result is not.  What happens if the employment relationship sours?  What happens if the injured worker is not able to return to work in the same capacity they were working pre-injury?  At times, due to these issues or for other reasons, an injured worker lodges a common law claim alleging the Employer was somehow negligent and that this negligence was the cause of their injury and claimed losses.

Often, the key to successfully defending a workplace injury claim comes down to the evidence held or obtained by the Employer.  This evidence includes documents Employers should have readily available, such as:

  • Safe Work Method Statements (SWMS);
  • Minutes of ToolBox talks or saved Take5 documents;
  • Relevant (having regard to what work your employees undertake), consistent, regular and documented training regime, generally relating to such things as:
    • Manual handling;
    • Psychosocial hazards;
    • Bullying and harassment
  • Risk assessments; and
  • Relevant policies and procedures.

Additionally, it is important to conduct a thorough investigation immediately or very soon after the injury-causing incident, regardless of how minor the work-related injury seems at the time.  An investigation could include:

  • Creating a digital incident folder that is not likely to be deleted or destroyed, saved in a secure location and accessible only by executive or leadership personnel;
  • Retrieving and saving a copy of all relevant training documents, SWMS, contemporaneous Take5 or other written ToolBox talk minutes to the incident folder
  • Speaking to any identified witnesses and having them write down and sign what they recall occurred and save it to the incident folder;
  • Speaking to any direct managers who can often shed light on various other aspects of the injured worker’s injury history. Take notes of what is said or have the direct manager provide a statement and save the documents in the incident folder;
  • Reviewing and saving CCTV footage or photographs of the incident location to the incident folder; and
  • As soon as safely possible, ensuring the injured worker writes down what they say occurred and save it to the incident folder.

Obtaining any evidence by undertaking a thorough investigation at an early stage ensures a clear version of events is recorded. If the worst happens, and a common law claim is brought, there can be some peace of mind in ensuring the time and effort put into investigating the incident could result in successfully defending either a statutory or common law injury claim.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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