It is well known that employees are generally covered by WorkCover when they are injured in the course of their employment. However, the situation is more difficult for contractors.
If a contractor is injured while performing work, a contractor may be deemed a ‘worker’ in certain circumstances for the purpose of making claim for workers’ compensation. On occasion, however, a contractor is not ‘deemed’ a worker, and therefore not entitled to workers’ compensation.
Contractors not covered may struggle significantly after being injured at work. So, what options are available?
A contractor may be entitled to pursue a negligence claim in situations where:
- The person or company contracting their services, or another contractor on site, did not provide a safe place for work; or
- The contractor was supplied with faulty equipment and this caused the accident; or
- The contractor was working on third party property and the owner/occupier of the premises is responsible for the accident.
In order to prove negligence it must be proven that the accident was caused by the fault of another party. If negligence cannot be established, then there are no grounds for seeking compensation.
When seeking compensation for pain and suffering, the injured contractor must be able to demonstrate they suffered a ‘significant injury’. A ‘significant injury’ is classified as a permanent physical impairment of more than 5% whole-person or a psychological injury of at least 10% impairment.
Generally, claims must be made within three years of the date of the incident. However, minors and those with a disability may have six years from the date of the incident to commence a claim.
If a negligence claim is successful, compensation can be awarded for:
- loss of earnings and future loss of earning capacity
- reimbursement for medical and other out of pocket expenses;
- the costs of future medical treatment and assistance required as a result of the injuries
- the time spent by family and friends providing gratuitous care for the injured person; and
- pain and suffering and loss of enjoyment of life as a result of the permanent injuries.
Bucic v Arnej Pty Ltd
In the recent decision of Bucic v Arnej Pty Ltd, the plaintiff – a self-employed brick cleaner, sustained serious injuries after falling from scaffolding at a residential building site. He brought a claim alleging negligence against the defendant, who was the sole proprietor of the site.
The plaintiff fell from defective scaffolding erected by the defendant onto a pile of bricks and suffered a fractured wrist and ribs, a collapsed lung, and a laceration to his head. He also alleged aggravation of a pre-existing back and neck injuries, psychiatric injuries and cognitive impairment.
The plaintiff argued the defendant breached its duty as the occupier of the premises by failing to provide a safe working environment. The court determined the scaffolding was deficient and held the defendant had breached its duty. The plaintiff was awarded $1,043,000 million in damages.
Love v North Goonyella Coal Mines Pty Ltd
In the construction industry it is common for a principal contractor to organise for works to be carried out by contractors rather than employ its own workforce to carry out the work. The duty of care owed by a principal contractor to an independent contractor or an employee of a sub-contractor is typically more limited than the non-delegable duty owed by an employer to an employee. However, this was not the case in the 2017 decision in Love v North Goonyella Coal Mines.
In Love v North Goonyella Coal Mines, the defendant – a mine operator, was found liable for injuries sustained by an employee of another company, Wilson Mining Services Pty Ltd (Wilson), who was undertaking roofing work at the North Goonyella Coal Mine which was operated by the defendant.
The plaintiff was struck by a roof bolting machine weighing between 40-48kgs and was knocked unconscious. He argued the defendant was vicariously liable for the negligence of a truck driver employed by the defendant who had interfered with the roof bolting machine, causing it to fall on the plaintiff without warning.
The plaintiff also successfully argued the defendant was a ‘host employer’ and owed a non-delegable duty to the worker at common law to have in place safe systems of work to avoid the risk of injury – akin to the duty owed by an employer to an employee.
There existed special features of the relationship between the parties in this instance which gave rise to the imposition of the common law duty. In particular, the degree of control exercised by the defendant over employees of Wilson, and the fact there were multiple contractors on site which warranted supervision or coordination of their respective areas of responsibility in order to avoid the risk of injury.
The defendant was found to have breached its duty to provide a safe system of work. The plaintiff was awarded $1,356,976.87 in damages.
 Bucic v Arnej Pty Ltd  VSC 330.
 Love v North Goonyella Coal Mines Ltd  QSC 140.
Injured contractor members
If you have a member who is a contractor and injured at work, we recommend the following steps:
- Tell the member to report the accident to the person or company that contracted them
- The member should also lodge a WorkCover claim, and lodge a copy of the claim form with WorkSafe. If the WorkCover claim is accepted, the member may be entitled to receive payments for medical expenses, loss of income, and pain and suffering
- Whether the member's claim is accepted or not, the member may also be entitled to pursue a negligence claim. Our highly experienced public liability and workers' compensation lawyers are experts in entitlements across each state and territory, and know how to maximise those entitlements.
It doesn't cost your members anything to find out where they stand. Free first consultation is a benefit of their union membership.
For more information, call us on 1800 810 812.