When a person is injured at work in New South Wales, the most common option is usually a workers compensation claim. However, there are circumstances where the injured person may also have rights to claim under public liability law or common law negligence—this is known as dual compensation. While NSW law permits such claims in specific cases, they are complex and require a clear understanding of the relevant legislation and case law.
Claiming Through Workers Compensation
Workers compensation in NSW is governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). It provides no-fault benefits to employees injured during the course of their employment, including:
- Weekly income support
- Payment of medical expenses
- Rehabilitation support
- Lump sum compensation for permanent impairment (for injuries assessed at 11% or more WPI)
- Limited common law rights for work-related injury if impairment reaches 15% or more (SIRA NSW, 2024).
However, when injuries arise from unsafe conditions, defective products, or the negligence of a party other than the employer (or in a different legal capacity), public liability or common law claims may also be available.
When Public Liability Compensation Claims Arise
Public liability claims are based in common law negligence and are typically made against individuals, businesses, or entities (excluding your direct employer) who owed you a duty of care but failed in that duty, resulting in injury. These claims can arise from:
- Slips or falls in public spaces
- Injuries from defective equipment
- Third-party actions on a work site
Unlike workers compensation, which is automatic, a public liability claim requires the injured person to prove fault or negligence.
When Can You Claim Both?
Dual rights arises when a worker is injured in circumstances where both workers compensation and public liability apply. Common examples include:
- A delivery driver injured due to faulty loading equipment at a third-party premises
- A contractor injured at a construction site due to poor site management by another subcontractor
- A nurse who slips on a wet hospital floor caused by a contractor’s negligence
In these scenarios, the injured person may:
- Claim statutory workers compensation from their employer or the insurer.
- Lodge a public liability claim against the negligent third party.
The Limits of Dual Rights
The law allows both claims but prevents double recovery for the same loss (i.e. double dipping). Under section 151Z of the Workers Compensation Act 1987 (NSW), if a worker receives both statutory compensation and damages from a third party, the workers compensation insurer may recover some of the payments from the damages award. This is often referred to as the "statutory reimbursement" or "section 151Z recovery" (Workers Compensation Act 1987, s151Z).
Furthermore, section 46 prevents dual weekly payments for the same incapacity period unless they arise from distinct injuries. This was clarified in cases such as Browne v State of NSW [2023] and Wakefield v State of NSW [2022], where NSW courts allowed dual compensation only where injuries (e.g. physical and psychological) were functionally separate.
What Should You Do In Case of an Accident
Dual rights in NSW is a complex area of personal injury law. While the Workers Compensation system provides no-fault coverage, public liability and common law claims offer avenues for more comprehensive compensation—particularly in cases involving negligence, unsafe environments, or defective equipment.
If you believe your injury involves multiple parties or legal duties, speak with a qualified NSW personal injury lawyer. Proper legal guidance ensures you don’t miss out on entitlements or risk breaching legislative requirements around dual claims.