On 27 April 2010, Premier Anna Bligh and the Minister for Industrial Relations, Cameron Dick, announced reforms to the workers’ compensation scheme in Queensland.
Legislation required to implement the reform package is expected to be introduced into Parliament by mid 2010. In summary, the reforms are:
Premium
There will be an average premium rate increase to $1.30 per $100 of wages for the 2010-2011 premium years.
WorkCover and Workplace Health and Safety Queensland will audit employers with a poor safety record and if their performance does not improve, WorkCover will be given the power to raise their premiums above the cap.
The Government will also investigate the possibility of introducing workers’ compensation levy system for the construction industry.
No restrictions on common law access
The Queensland Government has ruled out placing any restrictions on injured workers’ access to common law claims for damages.
Harmonisation with Civil Liability Act
Common law claims brought under the Workers’ Compensation and Rehabilitation Act 2003 will be harmonised with arrangements under the Civil Liability Act 2003 in terms of liability (standard of care), contributory negligence and caps on general damages and damages for economic loss.
General damages (pain and suffering) will be capped at $300,000.
Damages for economic loss (loss of future earnings) will be capped at three times Queensland Ordinary Time Earnings (QOTE) for the purposes of calculating annual earnings. QOTE is currently $1,132.10 per week ($58,869 per annum). Three times QOTE is $176,607. This amount will be the maximum annual earnings a court will be able to take into account when calculating loss of future earnings.
The statutory scheme will remain unchanged.
Increasing onus of proof to prove employer fault
In light of the Queensland Court of Appeal’s statement on the onus of proof in Bourk v Power Serve Pty Ltd, the Act will be amended to require workers to show that an employer breached a duty to take precautions against a risk of harm that was foreseeable, not insignificant, and in circumstances in which a reasonable person would have taken the precautions.
Costs against plaintiffs whose cases are dismissed
The Act has been interpreted by the courts to mean that if a claim is dismissed, no costs are payable by the injured worker. The Act will be amended to allow courts to award costs against an applicant where a claim is not successful.
Employer excess
The employer excess will change from 65% of QOTE ($740 for most employers), to 100% of QOTE ($1,132) or one week of compensation, whichever is the lesser amount.
Structural review of institutional and working arrangements
In addition to legislative changes, the government will conduct a structural review of institutional and working arrangements in Queensland’s workers’ compensation scheme. The review will consider the claims management, common law settlements, rehabilitation and return to work as well as the range of issues raised during the review. These include legal costs and other associated legal matters.
The reforms will be monitored over the next two years. Their overall effectiveness will be assessed to determine whether further, more significant reforms are needed.
