New bill seeks to 'provide clarity for industry, workers' progressing claims in court
The Western Australian government has introduced a new legislation aimed at safeguarding the rights of injured workers following a recent court decision that raised concerns about access to common law damages.
The legislation comes in response to the WA Court of Appeal's ruling in Neville v Choice One Pty Ltd on September 5, which could have affected workers pursuing claims under the state's workers' compensation scheme.
"The Cook Government has acted swiftly to ensure workers are not denied the opportunity to have their common law claim progressed following the decision made by the WA Court of Appeal," said Industrial Relations Minister Simone McGurk in a statement.
"This Bill will provide clarity for industry and workers progressing claims through the court system."
Pursuing common law damages for injured workers
Under the existing framework, workers with a whole person impairment of at least 15% are required to "elect" to pursue common law damages.
However, the Court's ruling indicates that many could be deprived of their right to access these damages due to a technicality concerning the registration order of necessary documents. This could lead to proceedings being discontinued, halted, delayed, or struck out.
The new amendment Bill aims to address these concerns by retrospectively validating common law elections made under the former Workers' Compensation and Injury Management Act 1981.
Specifically, it will validate cases where the Director recorded the impairment assessment but did not do so before the purported election was made, according to WorkCover WA.
Additionally, the legislation will enable new proceedings to commence or current proceedings to recommence if they were struck out, stayed, dismissed, or discontinued on the basis of an invalid election since September 5.
The Bill also provides for a 12-month extension to the limitation period for workers whose limitation period has expired or will expire before the amendment Act commences operation. This extension will apply to cases where proceedings were impacted by an invalid election since the recent court decision.
