Employer Negligence Claims: A Simple Guide (NSW)

Someone gets hurt at work and the first thought is usually pretty basic: “Surely the boss is responsible for this?”

Then the second thought hits: “Hang on—doesn’t workers comp cover it?”

And then it gets messy. Fast.

Because in Australia, you can sometimes sue an employer for negligence… but the pathway depends on which state you’re in, what type of claim it is, and whether the system even allows that kind of damages claim in your situation.

This is the bit that’s understandably confusing. A lot of people assume “workers comp” and “suing” are the same thing. They’re not. Not even close.

Quick heads-up before going further: the detailed thresholds and rules mentioned below are NSW-specific (because the source article is NSW-based). Other states and territories can run quite differently, so don’t assume the numbers translate across the country.

So, let’s keep it simple. “Suing your employer for negligence” can mean different things depending on the state you’re in, and NSW has some very particular rules. The trick is knowing what lane you’re actually in—and what you can realistically claim.

First, what does “I want to sue” actually mean when someone’s injured?

Nine times out of ten, it’s not about revenge. It’s not about “making a point”. It’s about money and security, plain and simple.

Because when an injury knocks someone around, the questions get pretty immediate: how long can bills be covered, what happens if work can’t go back to normal, and who’s picking up the tab if the income drops off a cliff?

So when someone asks, “Can this be negligence?” it’s usually code for:

• Can compensation cover lost wages properly?
• Is there a lump sum option?
• Can future earning loss be claimed?
• What happens if the injury means a career change (or no career)?
• Is there a time limit?

Now, here’s where it gets interesting: in some systems, the “negligence-style” claim isn’t a free-for-all lawsuit. It’s a structured statutory pathway with thresholds and limits.

In NSW, for example, the source article calls it a claim for Work Injury Damages. Different states use different terms and different rules, but the concept is common: it’s a separate step beyond weekly benefits.

Workers comp vs suing: same injury, different lanes

Think of it like two lanes on a road.

Lane 1: Workers compensation benefits

Usually includes things like weekly payments (depending on capacity), medical expenses, and sometimes lump sums for permanent impairment.

Lane 2: Damages claim (negligence-based or “work injury damages”)

This is where the conversation moves toward economic loss—past and future earnings, super, that sort of thing. But it often comes with strict entry rules.

And yes, people can be in Lane 1 first and only later find out Lane 2 might exist. That’s common.

Pro tip: don’t assume the insurer (or the employer) will volunteer the best path for you. That’s not how it works.

The big “but”: there are restrictions (NSW is a good example)

In NSW, the source lays out restrictions that apply to Work Injury Damages claims. This is the stuff that shocks people because it’s not intuitive.

Some key limits described include:

• A whole person impairment threshold (the source states at least 15%)
• Damages are restricted to economic loss only (not medical costs, not lump sums like workers comp)
• You generally must first have made a claim for, and received, certain lump sum compensation payments for permanent impairment and (if applicable) pain and suffering
• Future loss calculations can be limited up to the lesser of statutory retirement age or life expectancy
• Settlement is final—no more future workers comp payments for that injury after settlement
• There can be a requirement to “repay” (offset) weekly payments already received (the source refers to a payback/offset)
• A time limit: the source states 3 years from date of injury, with extensions possible in some circumstances

That’s a lot, right? And it’s why people feel like they’re being bounced between rules.

Actually, let’s clarify something: that’s NSW-specific detail from the source page. Other states can be different, sometimes very different. So location matters. A lot.

What can be claimed in a damages-style work injury claim?

Here’s the part that feels more concrete.

In the NSW Work Injury Damages framework described in the source, the claim is essentially for:

• Past economic loss (lost earnings from injury to proceedings/hearing)
• Past lost superannuation (the source says not less than 11%)
• Future economic loss (lost earnings from proceedings to retirement age)
• Future lost superannuation (percentage depends on years to retirement)

And importantly, the source says these damages don’t include medical expenses or lump sum compensation. That’s one of those “wait, what?” moments for people.

Because many assume a lawsuit means everything is claimable. Not necessarily.

“Payback” and offsets: the part that feels unfair (but is common)

This is a frequent frustration.

People hear “you can sue” and imagine a big additional payout on top of everything already received.

But in the NSW scheme described, there’s an offset—weekly benefits already paid are taken into account (the source calls it the “payback” figure for the nett amount of weekly benefits).

Then there’s another layer: if Centrelink was paid during the same period, those benefits may need to be repaid to Centrelink out of the settlement (as the source explains).

So someone might think, “Finally, a settlement,” and then realise parts of it are effectively reimbursing amounts already received from other systems.

Is it emotionally annoying? Yep. Is it normal in personal injury style calculations? Also yes.

How future loss is calculated (and why it’s not just “52 weeks x years”)

You’d think it would be simpler: weekly loss × 52 × number of years.

But courts generally don’t do it that way.

The source explains future economic loss is calculated using discount tables (reducing future losses to present value), and that in NSW the courts use a 5% multiplier.

It even gives an example: a nett loss of $1,000 per week over 35 years isn’t calculated as $1,000 × 52 × 35. Instead it uses a multiplier (the source gives 876 for 35 years).

Then, contingencies come in—what the source calls the “vicissitudes of life”, and mentions a standard 15% discount for future loss (though it can vary depending on circumstances).

This is one of those areas where people feel like “the system is discounting the injury”. What it’s really doing is discounting uncertainty in future working life—illness, unemployment, career changes, all that unpredictable stuff.

Still frustrating, though. No sugar-coating that.

The questions that matter before anyone even thinks about “suing”

So what does this mean for you?

A few practical questions tend to decide whether it’s worth exploring a negligence/damages pathway:

• What state did the injury happen in (or which scheme applies)?
• Is the injury likely to reach an impairment threshold (if the scheme has one)?
• What’s the actual work impact—weeks off, reduced duties, career change?
• Are there deadlines already ticking away?
• Has weekly comp been paid (and for how long)?
• Has Centrelink been involved?

And then—this is the big one—what evidence exists about how the injury happened? Unsafe system? Lack of training? Dodgy equipment? Poor supervision? Because negligence is about showing the injury resulted from the employer’s failure to take reasonable care.

Not vibes. Evidence.

That’s where good advice makes a difference.

And that’s exactly why Workers Compensation Lawyers can be worth talking to early—before time limits and paperwork choices box someone into a corner.

FAQ: questions real people actually ask

Can an employer be sued for negligence?

Sometimes, yes. But it often depends on the state scheme and whether the injury meets specific thresholds and requirements. In NSW, for example, the pathway described is a Work Injury Damages claim with strict conditions.

Does workers comp stop someone from suing?

Not always. Workers comp and damages claims can be different pathways. In some cases, workers comp steps need to happen first before a damages-style claim can be pursued.

What can be claimed in a work injury damages claim (NSW example)?

The source describes economic loss only: past and future lost earnings, plus superannuation (past and future). It excludes medical expenses and lump sum compensation.

Is there a time limit?

Yes. The source states a time limit of three years from the date of injury for Work Injury Damages claims in NSW, though extensions can be possible in some circumstances.

Does a settlement mean weekly payments keep going?

Not necessarily. The source notes that payment under the Work Injury Damages scheme is final, and no further future payments of compensation are received in relation to the injury after settlement.

Will Centrelink have to be repaid?

Possibly. The source says Centrelink benefits received during the same period may need to be repaid out of the settlement.

Neutral next step

If work’s been interrupted and it’s starting to feel like this isn’t a two-week injury… don’t sit on it.

Find out early what scheme applies (it’s different across Australia), what the key dates are, and whether there’s even a damages option available. Waiting doesn’t make it clearer. It usually just makes it more urgent—and that’s when mistakes happen.

Legal disclaimer

This is general information only. It isn’t legal advice, and it’s not tailored to any particular injury, workplace, or state scheme.

Workers compensation and damages rules can turn on small details and strict time limits, so proper advice should be obtained from a qualified lawyer before taking (or not taking) any steps.