It is becoming more and more frequent that workers are being subject to assaults in the workplace, either by co-workers, customers or total strangers.
It is becoming more and more distressing that usually safe occupations such as teachers are now the targets of violence. The two questions that flow from this, are:
- Whether a claim for statutory workers’ compensation benefits can be made?
- Is there a further right to bring a common law claim?
As long as employment is a “material contributing factor” to any injury suffered, then yes, the employee is entitled to basic statutory benefits from WorkCover. Injuries can include psychiatric or psychological reactions to an assault or the actual physical injuries sustained in an assault. There are strict time limits that apply in these circumstances as any work related claim must be notified to WorkCover Queensland within six months of the date of incident, otherwise you will lose your rights to statutory benefits.
It is much more difficult to advise whether a further claim for common law damages is possible. This is, in effect, where an employer is being sued for breaching a duty of care to their employee. There must be proof in this circumstance of a breach of duty of care, that is the employer did or did not do something to cause or prevent the assault.
Things to look at when trying to prove this include:
- The employer having actual knowledge of the threat of violence;
- Past instances where employees have been attacked and the employer has done nothing about it; or
- Where the employee is in a specific position of vulnerability to attack and is not receiving the full support of the employer.
Each and every case is different and must be looked at in their own right. If this occurs, speaking to a lawyer to seek advice on what evidence is required is vital and should be done as soon as possible as it will frequently require witness to be interviewed in the early stages.
By David Jasinski
