Workers Compensation
5. Decision to Litigate
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 01 Sep 2015
- There are several factors to consider when making the decision to litigate (go to court). Before taking the decision it is important to get legal advice specific to your situation. Our free Find a Lawyer directory provides contact details for lawyers who may suit your needs.
- There are restrictions on the right to litigate as not all jurisdictions allow for employees to seek private compensation for workplace injuries. The right to litigate has been abolished in the Northern Territory and South Australia while restrictions on the right to litigate have been placed on potential lawsuits in NSW, Victoria, Tasmania, Western Australia and under Commonwealth legislation (written laws). Talk with your lawyer about whether or not the possibility of litigation is open to you.
- The costs associated with litigation can be high. You will need a lawyer and their fees will need to be taken into account when considering any potential award of damages. Many personal injury lawyers operate on a ‘no win, no fee’ basis however it is important to remember that even if you are unsuccessful you may still be out of pocket if your employer seeks an order against you for their legal costs.
- You should also be aware that the law does not allow ‘double dipping’. This means that if your litigation is successful you may be required to pay back any compensation that has previously been paid out through a workers compensation scheme. This amount may well be in the thousands and may mean the loss of most or all of your damages entitlement.
- Unlike workers compensation schemes litigation considers the question of fault. This can work both for and against the employee in the following ways:
- if the court finds that the employer was at fault then the potential for a higher award of damages is increased; and
- if the court finds the employee to have contributed to their injuries through negligence of their own then the damages award can be significantly reduced.
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