If you’ve been injured at work, you may already be receiving workers compensation benefits – or you may still be trying to understand what options are available to you.
But here’s what most injured workers don’t realise: depending on how your injury happened, you may also be entitled to a separate public liability claim — and pursuing both could significantly increase your total compensation.
This guide explains how workers compensation and public liability claims work, when you can claim under both, and what this means in practice — including specific scenarios for construction workers, labour hire workers, and anyone injured because of a third party’s negligence.
Many people assume workers compensation is their only option after a workplace injury. That’s not always the case. Depending on how your injury happened, you may be entitled to claim additional compensation through a separate public liability claim.
Workers compensation is a government-backed, no-fault scheme. That means if you’re injured at work, you’re entitled to benefits regardless of who caused the injury. You don’t need to prove your employer did anything wrong.
Workers comp covers:
Workers comp applies to injuries that happen at your workplace, while commuting (in some states), or during work-related activities. In NSW, it’s managed through icare. In Victoria, it’s run via the WorkCover scheme. Each state runs its own scheme, but the core principle is the same: employers must carry workers comp insurance, and that insurance supports you if you’re hurt on the job.
The important limitation: Workers comp is a safety net, it covers the basics and it can also cover lump sum compensation for permanent impairment and employer negligence in certain instances. Workers compensation can provide important support after an injury, but it doesn’t always cover the full impact the injury has had on your life. It has caps on weekly payments, and in most states, it doesn’t cover pain and suffering. That’s where a public liability claim can make a significant difference.
A “third party” is anyone who isn’t your employer or a co-worker. If that person’s negligence caused or contributed to your work injury, you can make a public liability claim against them under the Civil Liability Act 2002 (NSW). This is a completely separate claim from your workers compensation claim.
To make a public liability claim, you generally need to show three things:
Common examples of negligent third parties in a work context include:
The important thing to understand: you don’t sue your employer in a public liability claim. You’re making a claim against the negligent third party. It’s a completely separate legal process.
Expert tip: Many workers don’t realise they have a third-party claim on top of their workers compensation. If someone other than your employer caused your injury, you could be entitled to significantly more compensation. It’s always worth getting a specialist to check.
| Workers Compensation | Public Liability | |
|---|---|---|
| Who can claim | Workers injured because of their jobs. |
Anyone injured due to another party’s negligence. |
| Fault required? | No – no fault scheme. |
Yes – you must prove negligence. |
| Pain and suffering | Not available. |
Available. |
| Future medical costs | Limited. |
Available in full. |
| Gratuitous care | Not available. |
Available. |
| Past and future economic loss. | Capped weekly payments. |
Full economic loss. |
| WPI threshold | 15% to sue your employer for damages. |
No threshold applied. |
| Psychological injuries | Restricted. |
Available. |
| Who pays | You employer’s insurer. |
The negligent third party’s insurer. |
The single most important difference is fault. Workers compensation doesn’t require you to prove anyone was negligent. Public liability does — but it unlocks compensation that workers comp doesn’t cover.
And when both conditions are met — your injury is work-related and a third party was negligent — you may be entitled to claim under both schemes.
A specialist lawyer will review your circumstances and tell you how much you can claim.
A third-party public liability claim may provide access to additional compensation that may not be available through workers compensation alone, including:
Expert tip: With a third-party claim, we look at how your injury affects every part of your life — not just your ability to work. That’s how we make sure you’re claiming everything you’re entitled to.
Under Section 151H of the Workers Compensation Act 1987, you need at least 15% whole person impairment (WPI) to claim work injury damages against your employer. This threshold blocks many workers from accessing common law damages.
But third-party public liability claims fall under the Civil Liability Act — which has no WPI threshold at all.
This is exactly what happened in Milich v Canterbury Council [2012]. A labour hire worker injured his back lifting a cast iron bathtub at a Council site. His WPI was below 15%, which meant he couldn’t sue his employer for damages. But because the Council (the host employer) was a negligent third party, he successfully claimed against them — and his damages were assessed at approximately $1,000,000.
Yes — and this is one of the most common questions we receive. You can absolutely pursue both claims simultaneously. Your workers comp benefits continue while you pursue the third-party claim. You won’t lose your weekly payments.
However, under Section 151Z of the Workers Compensation Act 1987, you can’t keep both in full. If your third-party claim succeeds, you must repay the workers comp benefits you’ve received from your settlement or damages.
This sounds concerning, but it doesn’t mean you lose money. The third-party claim typically recovers far more than what you repay.
A practical example: Say you’ve received $100,000 in workers comp benefits. Your third-party claim settles for $750,000. You repay the $100,000 from the settlement and keep $650,000 (subject to legal costs). Without the third-party claim, you’d only have the $100,000 in workers comp.
Your lawyer manages the Section 151Z repayment as part of your settlement — it’s factored in from the start so there are no surprises.
Construction is consistently one of Australia’s most dangerous industries. In 2023–24, there were 44 fatalities in the Australian construction industry and 17,609 compensation claims lodged, with a median payout of $18,479.
What makes construction sites particularly relevant for dual claims is that they involve multiple businesses working side by side — head contractors, subcontractors, equipment suppliers, and other trades. That means your injury might have been caused by someone other than your direct employer.
Common construction scenarios where a third-party claim applies:
Labour hire and subcontractor workers: If you’re a labour hire worker, your legal employer is the labour hire agency — they provide your workers comp insurance. But the host business controls your day-to-day work on site. If the host business was negligent, you may have a public liability claim against them as a third party, in addition to your workers comp entitlements.
Expert tip: Labour hire and subcontractor arrangements are increasingly common on construction sites. The rules around who’s covered and who’s liable can be complex — but that complexity often means there are more claim options available, not fewer.
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Get startedMarcus fell through rotten flooring at a commercial building site. The property owner knew about the hazard but hadn’t fixed it. Marcus claimed workers comp through his employer for weekly payments and medical costs. His lawyer then pursued a separate public liability claim against the property owner — and Marcus received over $120,000 in combined compensation, including pain and suffering that workers comp alone wouldn’t have covered.
Priya entered a shopping centre to make a delivery and slipped on an unmarked wet floor. She claimed workers comp through her employer for immediate income support and treatment. Her lawyer also lodged a public liability claim against the shopping centre operator, which resulted in an additional lump sum of around $85,000 for her injuries and lost earning capacity.
A labour hire worker employed by DJ’s Scaffolding was directed daily by Canterbury Council. When he was injured lifting a bathtub, the court found the Council 75% liable and the employer 25% liable. His damages were assessed at approximately $1,000,000 — compensation he couldn’t have accessed through workers comp alone.
Expert tip: The sooner you get legal advice, the more options you’ll have. Evidence can disappear, witnesses forget, and time limits apply. If you think a third party caused your work injury, don’t wait.
Both claim types have strict deadlines — and they run independently.
Generally a 3-year limitation period from the date of discoverability of your injury under Section 50C of the Limitation Act 1969
The critical point for dual claims: Even if your workers comp claim is already underway, the clock is running separately on your public liability claim. Don’t assume one claim covers everything. If a third party was negligent, you need to act on the public liability claim before time runs out.
Expert tip: We’ve seen people miss out on significant compensation simply because they didn’t act in time. If you think a third party caused your injury, get advice now — even if you’re still receiving workers comp. It costs nothing to check.
A common example: you’re a labour hire worker placed at a warehouse. The warehouse owner fails to maintain a forklift, and it malfunctions while you’re operating it, causing serious injuries. You claim workers comp through your agency and make a separate public liability claim against the warehouse owner.
Yes — if your injury was caused or contributed to by someone other than your direct employer, you may be entitled to both. They’re separate claims under different laws, and pursuing both can significantly increase your total compensation.
You can still make a claim. Your compensation may be reduced to reflect your share of fault (contributory negligence), but it doesn’t disqualify you from claiming.
Yes. Psychological injuries are covered in third-party public liability claims without the restrictions that apply to workers comp claims against employers.
You can make separate claims against each. The court determines each party’s share of liability. In the Milich case, liability was split 25% employer and 75% Council — the worker’s third-party damages were reduced by 25%, but the total recovery was still far more than workers comp alone.
We strongly recommend it — especially if you might have a dual claim. Most injured workers don’t realise they have a public liability claim sitting alongside their workers compensation. Your employer’s insurer won’t tell you. And many injured workers don’t realise they may have a separate public liability claim available to them.
A specialist personal injury lawyer can identify whether a third party was negligent and unlock a second claim you might never have known about.
At Law Partners, we’re Australia’s largest specialist personal injury law firm. We have dedicated teams for both workers compensation and public liability — which means we can identify third-party claim opportunities that other lawyers might miss, and handle everything together so nothing falls through the cracks.
Here’s what you get when you work with us:
If you’ve been injured at work and you think someone other than your employer was at fault, give us a call. We’ll check whether you have a third-party claim and explain exactly what you could be entitled to.
Call 1300 396 056 for free, no-obligation claim advice from a specialist personal injury lawyer, or visit lawpartners.com.au.
