I had an accident at work but it was my fault

I had an accident at work graphic

If you’ve had an accident at work and suffered an injury – and it the accident was your fault – it might surprise you to learn that you might still be entitled to compensation under the Victorian WorkCover scheme.

No fault and fault

The workers compensation system in Victoria, known as WorkCover, is both a no fault and fault based compensation scheme.

There are four main entitlements under the WorkCover scheme.

These are; medical and like expenses, weekly payments, impairment benefit lump sum claim in common-law claim for damages.

Medical and like expenses, weekly payments and impairment lump sum claims are the no fault entitlements.

A common-law claim for damages is the fault based entitlement.

In order to claim no fault entitlements you do not have to show that someone else was at fault for the injury.

This means that if you suffer an injury in an accident at work – say because you were trying to lift many heavy items yourself – you may still be entitled to claim your no fault entitlements.

No fault required to have an initial claim accepted

In order to access WorkCover entitlements, you need to first lodge a WorkCover claim and have this accepted.

If the claim is accepted, you are entitled to the payment of medical and like expenses and if your ability to work been impacted by the injury, that is you can only work reduced hours or not at all, weekly payments.

In order to have the claim accepted, you do not need to show fault.

Fault is not a requirement to have a workers compensation claim accepted in Victoria.

Fault does not impact your no fault entitlements

So we’ve established that even though you may be at fault for an accident, that you can still pursue a WorkCover claim.

It’s important to note, further to this, that what you’re entitled to is not impacted by fault.

That is, that even though you might be at fault for an accident, you’re still entitled to claim the same amounts in medical expenses, weekly payments and an impairment benefit lump sum as anyone else (all things being equal).

To say it another way, you aren’t entitled to less by way of your no fault entitlement compensation just because you’re at fault for an accident.

Fault and common law

Fault is relevant for the purposes of a common law claim.

So if you were at fault for the accident, and no one else was, then you are not entitled to pursue common-law damages.

However, one consideration is that you might believe that you are at fault for the accident due to, for example, trying to do too much in the way of lifting.

But when it comes to a common law claim, the entire picture is looked at.

So using this example, the employers training may be an issue or the fact for example that you didn’t have enough assistance, or that you were doing excess manual lifting without mechanical help.

Or for example, perhaps you were required to do too much work in a short period of time.

So sometimes when people believe they were at fault for an accident, yes, they may have contributed to the accident, they may be other relevant considerations.

Won’t get in trouble

Contributory negligence

When it comes to fault, insofar as it relates to common law, one concept that you should be aware of is that of contributory negligence.

Basically, this means that if you have in some way been responsible for an accident, but another party (eg: the manufacturer of a piece of equipment, or a work colleague) was also responsible, you may still be entitled to a common law lump sum payment.

However, the amount you’re entitled to may be reduced, taking into account the extent that you were responsible for the accident.

For example, lets say that you were 40% responsible for the accident and your colleague was 60% responsible, then in simple terms any settle money you’re awarded would be reduced by 40%.

Serious and wilful misconduct

If the injury occurred as a result of serious and wilful misconduct, then you will not be entitled to compensation.

If a person seriously and wilfully disregards safety rules, then they may not be entitled to compensation.

There is an exception to the above. If the injury results in a severe injury or in death, then there may still be an entitlement under the WorkCover scheme.

Conclusion

Just because you had an accident that you were at fault for, does not mean you are not entitled to claim compensation under the WorkCover scheme.

WorkCover is both no fault and fault based.

The no fault entitlements are medical expenses, weekly payments and an impairment benefit lump sum. The fault entitlement is a common law claim.

You are able to claim the no fault entitlements even if nobody was at fault for the injury, and even if you were at fault for the injury, in some cases.

Also, the level of fault does not impact how much you can claim. You’re entitled to the same benefits (other than a common law claim) as someone whose injury was caused by another person.

In relation to fault and common law claims, even though you believe you might have been at fault, it is possible by looking at the entire picture, there may be fault that can be attributed to others.

Further, the concept of contributory negligence is relevant. So if you were at fault for the accident, and another party was as well, you may still be entitled to pursue a common law claim. It may mean however that any compensation awarded is reduced based on the extent of each parties fault.

Finally, if there was serious and wilful misconduct, you will not be entitled to claim WorkCover compensation.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

Sidebar graphic of WorkCover benefits guide

To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team