If you’ve been seriously injured at work in New South Wales and your injury was caused by employer negligence, you may be entitled to make a work injury damages claim. In our experience, the average payout for a work injury damages claim is more than $200,000.
Many people on workers comp don’t know about this lump sum claim. There are two conditions you’ll need to meet to qualify:
If you meet these conditions, you may be able to claim a lump sum for past loss of earnings and future loss of earning capacity. This article will help you understand if you qualify, the claim process, and everything you need to know before you make a claim.
A work injury damages (WID) claim is a negligence-based claim against an employer under the NSW workers compensation scheme, described by the State Insurance Regulatory Authority (SIRA) as modified common law damages.
Unlike standard no-fault workers compensation benefits, a WID claim requires you to prove your employer’s negligence caused your injury.
SIRA specifies that work injury damages cover economic loss — specifically past loss of earnings and future loss of earning capacity.
Many injured workers don’t know this lump sum is available. Insurers have no obligation to tell you about it — so you could miss out without ever realising it.
In our experience, it’s very common for people on workers comp to be unaware they can make a WID claim. They usually think they’re only entitled to wages and treatment. They’ve never been through this, so they’re unaware of their rights, and the insurer will never tell them.
This is a good reminder of why getting legal advice is so valuable for any injured worker with a significant injury.
It’s important to understand the difference between workers compensation and work injury damages to ensure you receive everything you’re entitled to. Both relate to workplace injuries, but they operate under very different legal frameworks.
Workers compensation in NSW is a no-fault system, providing statutory benefits — including weekly wage replacement payments and coverage for medical and rehabilitation expenses — regardless of employer fault. Most injured workers access these benefits automatically.
Work injury damages, by contrast, are fault-based. You must prove employer negligence, and compensation is paid as a lump sum focused on economic loss.
| Feature | Workers Compensation | Work Injury Damages (WID) |
| Basis of claim | No-fault statutory entitlement | Employer negligence must be proven |
| Type of benefit | Ongoing weekly payments + medical/rehab expenses | Lump sum focused on economic loss |
| What it covers | Income replacement, treatment, rehabilitation | Past lost earnings + future loss of earning capacity |
| Impairment threshold | No minimum WPI required | Minimum 15% WPI required |
| Effect of settlement | Benefits continue while eligible | Settlement extinguishes further workers comp entitlements |
| Fault required? | No | Yes — employer negligence must be established |
A specialist lawyer will review your circumstances and tell you how much you can claim.
Here are the key eligibility requirements:
✔ Employer negligence
Your employer must have been negligent — that is, they must have breached their duty of care to you, and that breach must have caused your injury. This is the foundational requirement.
✔ At least 15% permanent impairment (whole person impairment)
Your injury must have resulted in a minimum of 15% whole person impairment (WPI). This impairment must either be accepted by the insurer or determined by the Personal Injury Commission. The assessment must be conducted by a qualified permanent impairment assessor.
✔ Statutory lump sum payments for permanent impairment must be received before settlement
Any statutory lump sum payments for permanent impairment (under section 66 of the Workers Compensation Act 1987) must be received before a WID claim is settled. This is important as it affects the timing of your claim.
✔ Claim within the limitation period
Your claim must generally be made within three years of the date of injury. Although there are some exceptions which your lawyer will help you with.
Many workers who meet these criteria have no idea they’re entitled to make a claim. If you’ve received a significant permanent impairment assessment as part of your workers compensation claim, it’s well worth speaking with a lawyer about whether you may also be eligible for work injury damages.
The 15% whole person impairment threshold is key to a work injury damages claim in NSW. But what does it actually mean?
WPI measures the degree to which your overall body function has been permanently impaired by your injury. A 15% WPI threshold means your injury must have caused at least a 15% whole person impairment— the minimum required for a WID claim. The assessment must be conducted by a qualified permanent impairment assessor accredited under the NSW workers’ compensation scheme. The result must then be accepted by the insurer or, if disputed, determined by the Personal Injury Commission.
Key takeaway: You need a WPI assessment of at least 15% accepted by the insurer or determined by the Personal Injury Commission for a work injury damages claim to proceed.
Establishing employer negligence is essential to a successful work injury damages claim. Negligence isn’t simply a matter of something going wrong – there are four core elements that must be established:
The employer owed the worker a duty of care. In NSW, employers have a clear legal obligation to take reasonable steps to protect their employees’ health and safety at work. This element is rarely in dispute.
The employer breached that duty by failing to take precautions a prudent employer would have taken. Examples include failing to provide a safe working environment, adequate training, appropriate equipment, or failing to address a known hazard.
The breach caused the worker’s injury. It’s not enough that the employer was generally negligent — the negligence must be the direct cause of the injury.
The risk of injury was foreseeable — a reasonable employer would have recognised it and taken steps to address it.
A common question is how negligence can be proven when an injury seems like a pure accident. Even genuine accidents can involve employer negligence — the question is whether reasonable precautions were taken. Evidence can include incident reports, safety records, witness statements, complaints and expert opinions.
Our workers compensation lawyers have extensive experience building evidence and strong cases to prove employer negligence. We win over 99% of our cases.
A NSW work injury damages claim covers:
If your work has affected your mental health, it’s important to understand how these changes to NSW law may affect your rights.
From 1 July 2026, stricter requirements now apply to psychological injury claims. This means some workers who may have qualified under the previous rules may not qualify under the current system. If you’re unsure where you stand under the new rules, it may help to seek advice so you can better understand your options. We’re here to help, call us on 13 15 15.
Our client worked in security and was required to use force to control an offender who made threats against his family. Following this incident, our client developed significant psychological injuries. As part of his workers compensation claim, his psychological injury was assessed at 22% whole person impairment, and he received a lump sum amount of almost $70k under section 66.
When we pursued his work injury damages claim, it was important to highlight an earlier incident where another offender had attacked him at work. Following this incident, our client’s psychological condition significantly deteriorated, and he became unable to continue working. Highlighting this shift in our client’s capacity for employment, and the impact on his future earning capacity, played a significant role in negotiations at mediation and ultimately contributed to settling the matter for $950,000.
This example shows how future loss of earning capacity — particularly where a worker has been permanently removed from the workforce — can represent the largest single component of a WID settlement. It also demonstrates how important it is to identify and frame the key events that most clearly show the impact of the employer’s breach on the worker’s working life.
A specialist lawyer will review your circumstances and tell you how much you can claim.
Here are the key steps in a successful WID claim. Although this may look daunting, we can take care of the whole process for you.
Before lodging a WID claim, seek advice from a lawyer experienced in NSW work injury damages. They’ll assess your eligibility, advise on the strength of your negligence case, and guide you through the process. Many injured workers are surprised to learn they may be eligible — don’t assume you’re not.
Confirm that you have a WPI assessment of at least 15% accepted by the insurer or determined by the Personal Injury Commission, that at least six months have elapsed since your injury, and that any statutory lump sum payments for permanent impairment have been received.
A formal report from a qualified permanent impairment assessor is required as part of the lodgement. This report documents the degree of WPI and supports the eligibility threshold requirement.
Once your written claim is received, the insurer has two weeks to notify you if additional information is required. Once the degree of impairment is agreed or determined, the insurer has up to two months after receiving any additional information requested.
The insurer will either accept or dispute liability. If liability is accepted, negotiations around the lump sum payout can commence. If liability is disputed — which is very common — the matter will progress to a Pre-Filing-Statement.
Once the insurers response is received, the next step is to serve the balance of the evidence in a document called a Pre-Filing Statement. The Workers Compensation process is ‘front loaded’; this means that all evidence should be in the proceedings before a mediation and/or litigation.
One month after receipt of our Pre-Filing-Statement, the insurer will serve their defence. This defence will include all facts and evidence they will rely upon to defend the claim.
Most WID claims are resolved through negotiation or mediation before reaching court. If an agreement can’t be reached, the matter may proceed to the Personal Injury Commission for mediation, and then potentially to court.
Don’t be put off if your claim is initially rejected – it doesn’t mean your claim has failed, it’s a standard part of the process. In our experience winning thousands of WID claims for our clients, liability is never admitted and all claims are initially rejected, but most eventually settle. If we don’t settle, then we take it to Court.
Although this process may look a bit daunting, our legal team will take care of the whole process for you, and you don’t need to pay anything until you receive your lump sum compensation.
Generally, no. The legislation sets a minimum threshold of 15% whole person impairment (WPI) for a work injury damages claim. If your WPI is assessed at below 15%, you’re typically not eligible to pursue WID. However, if you believe your WPI hasn’t been correctly assessed, it’s worth seeking legal advice on your options.
Claims must generally be made within three years of the date of injury. However, there are some exemptions to this, so if it’s been more than three years, our workers compensation lawyers can advise you whether you can still claim.
Yes. The legislation is clear that Settling a work injury damages claim cancels all further entitlements to workers compensation for that injury — including weekly payments and medical, hospital, and rehabilitation expenses.
You call can 13 15 15 for a free consultation with a specialist workers compensation lawyer.
You don’t’ need to do anything to prepare for this call, but if you have the following information, it will help us determine whether you can make a work injury damages claim:
Chantille Khoury
Partner
Chantille is a multi-award-winning, preeminent workers compensation specialist with over 20 years’ experience. Having ranked top 6 nationwide in the highest category of the Doyle’s Guide, Chantille is now providing feedback on policy changes for the Personal Injury Commission and IRO.
Our senior lawyers will assess your case for free.
