Construction is consistently among the industries with the highest rates of serious injury claims in Queensland. Falls from height, struck-by incidents, crush injuries, electrical injuries and manual handling injuries all feature. What makes construction claims different from an injury in a shop or an office is the number of parties on site: a principal contractor, subcontractors, labour-hire agencies, plant hirers, and sometimes the client. Each owes duties, and each may be a defendant.

Key points

  • Every injured worker on site has a no-fault statutory claim through their employer's WorkCover policy, whoever caused the injury.
  • Damages can be claimed against the employer under the Workers' Compensation and Rehabilitation Act and against other parties on site, such as the principal contractor, under the Personal Injuries Proceedings Act.
  • A labour-hire worker's employer is the agency; the host builder is a third party, which opens a second route to damages.

The statutory claim

Lodge with WorkCover (or the employer's self-insurer) within six months. Weekly compensation, treatment, rehabilitation and, once stable, a permanent impairment assessment. Contractors with an ABN are covered if, on the facts, they are "workers" under the Act's tests; many sole-trader subcontractors on building sites are, and the label on the invoice does not decide it.

Who owes duties on a site

The Work Health and Safety Act places a primary duty on every person conducting a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers and others affected by the work. That duty falls on the principal contractor, on each subcontractor, and on the labour-hire agency, at the same time. Principal contractors of projects above the prescribed value also have specific obligations for site management, the work health and safety management plan, and high-risk construction work such as work at height, in trenches and near live services. Safe work method statements, inductions, toolbox records and incident reports are the documents a damages claim is built on, and the regulator's investigation file, where there was one, is often the most useful of all.

Damages against the employer

Where the employer's negligence caused the injury, a common law claim follows the statutory claim: notice of assessment, election if impairment is under 20%, notice of claim for damages, compulsory conference and, if needed, court. Damages include future income loss, which for a tradesperson who can no longer work at height or lift is usually the largest head.

Damages against other parties

A worker injured by another contractor's negligence, or by an unsafe site the principal contractor controlled, can claim against that party under the Personal Injuries Proceedings Act. The PIPA claim has its own notice, its own timeline and no impairment threshold, and it can run alongside the claim against the employer. Where more than one party is at fault the court apportions liability between them, and the worker recovers from each in proportion.

Labour-hire workers

A labour-hire worker is employed by the agency, so the statutory claim goes to the agency's insurer. The host builder who directs the work is not the employer, so a claim against the host is under PIPA. The host cannot hide behind the agency: the host controls the site, the task and the supervision, and its WHS duty is direct. Labour-hire workers are often the least inducted and the most likely to be given the job nobody else wanted, and the evidence tends to show it.

Frequently asked questions

I was injured by another contractor on site. Do I claim against them or my boss? Both may apply. Your statutory claim is through your employer's WorkCover policy regardless of fault. Damages can be claimed against the contractor who was negligent, and against your employer if it was negligent too.

I'm labour hire. Who is my employer for WorkCover? The labour-hire agency. The host builder is a separate party you may be able to claim damages against.

I'm a subcontractor with an ABN. Am I covered? Possibly. The Act uses substance-over-form tests; many sole traders on building sites are workers. Get advice before assuming you are not.

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