Mitigation of Damages: All injured workers are under a legal duty to mitigate their loss


Further to our articles about Common Law Damages Claims, e.g  how they are calculated ; we thought it very important to highlight that, when it comes to awarding injured workers damages for economic loss, Courts tend to look unfavourably upon injured workers -even those with the tiniest bit of work capacity- who do not, or did not attempt to move on with their life in terms of returning to work. Needless to say that the defendants (workcover insurer lawyers and barristers) will also use any argument possible to demonstrate that you, the injured worker, did “nothing”, or not enough to mitigate your own losses, for example by refusing medical treatment (to some degree) rehabilitation, counseling, vocational assessment(s), seeking employment within your restriction(s), re-training, etc.

Mitigation of Damages: All injured workers are under a legal duty to mitigate their loss

Let’s re-summarise the Common Law

There are two components of common law damages:

Economic loss damages : These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law ( in Victoria: at approximately $1,076,580.00)  but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages.

Pain and suffering damages: These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in Victoria in an extreme case is approximately $500,000.00.

For a quick overview of applicable common law damages in all states and figures (where applicable), see Key Workers’ Compensation Information, Australia 2012

An updated version (July 2013) is available here: Comparison Workers Compensation Arrangements in Australia and NZ – July 2013 which includes the 2012 workcover NSW reforms

Mitigation of Damages explained

This basically means that all injured workers are under a legal duty to mitigate their own loss.

This obligation operates in many different ways although the 2 major duties that this imposes on injured persons are as follows:

  1. An obligation to seek as much rehabilitation as possible in order to demonstrate that you have done everything possible treat your injury (*); and
  2. To try and find work that is within your capabilities/medical restrictions to mitigate your economic loss-even if you only have a very minimal capacity for work (e.g 1 day a week).

[(*) With regards to “having done everything possible to treat your injury” – it is worth to note that, for example, if an injured worker has undergone let’s say 8 major surgeries to a body part (and they failed) and suffered numerous compilations as a consequence of these surgeries, such as near fatal cardiac arrests, heart failures, etc (as is workcovervictim’s case), and the injured worker requires (or is told that they would need to undergo further) major “salvage” (but high risk) surgery, then the injured worker is not obliged to undergo that surgery and the courts would certainly not look unfavourably upon such an injured worker. It’s about having done what is “reasonable” to treat your injury.  We also know of a case whereby an injured worker who had a fairly minor injury (bilateral carpal tunnel) but was of a particular religious belief that prohibited him to undergo surgery – again this injured worker was not looked upon unfavourably, even though he became extremely disabled from a simple and readily treatable injury.]

If you fail to reasonably mitigate your own loss in the above manner then a Court has no recourse other than to penalise you, the injured worker, for failing to do so.

As far as this means, you , the injured worker, are required to find employment (a job) as the Courts tend to look unfavourably upon injured workers who do not attempt “to move on with their life”  in terms of returning to the work, if they have some work capacity (even the smallest).

What can injured workers do?

While many injured workers’ injuries are severe enough that they prevent them from returning to their former or “pre-injury” employment/work, injured workers, who still have some work capacity, basically should attempt to seek some form of employment, be it part time or even casual.

Injured workers should keep a record (i.e. a diary) of  ALL the jobs that they have been applying for to demonstrate to the defendants (workcover lawyers) that they are (trying to) mitigate their loss and trying to find employment as this will booster any argument that may be put forth as to the injured worker’s ability to work and to justify a claim for economic loss. We all know how hard it is to find employment once injured, or once having a record of having filed a workcover claim, however, keep job hunting and keep the evidence. The more the better.

If you are unable to find employment, even a casual job that you are capable of doing due to your qualifications or experience (resume) then you should think about what further education you may need to undertake in order to find some type of employment and possibly even take steps to inquire about these options. Try to make a case for retraining with your workcover insurer, if they knock it back, again you will have the evidence that the “defendant” denied you the much needed retraining you believe you need(ed) in order to secure a job!
If the insurer offers you a vocational assessment, and a retraining option (i.e. short course) never say no – because, if you are eligible for a common law case down the track they will use your refusal against you!

The courts often look much more favourably upon an injured worker who attempts to do whatever they can within the means and medical restrictions of their injury/injuries in order to reduce their own loss and damage.

It’s also important you realise that courts do not award settlement sums that provide injured workers with enough money so that they do not have to work again.

That’s a myth! The average compensation payout in Victoria is around $80.000 (eighty thousand). Where does that leave you as an injured worker? Pay off your credit card and accumulated debts, then what? Even assume you’re extremely injured and can never work again, and you receive around 600-800K – where does that leave you? 600K = 10 years at 60K/year or 20 years at 30K per year. Ha! (assuming the 600K is net in your pocket, after your lawyer fees and after you repaid all your weekly payments to workcover!). So, it’s NOT a lottery.

Other injured workers duties

The duty to mitigate your own loss extends into other areas of your workcover claim including the requirement that you, the injured sod,  participate in any rehabilitation programs funded by the defendants (insurance company); including counselling with a psychologist or psychiatrist and pain management programs where offered and appropriate.

The defendants (workcover insurance) may organise treatment(s) knowing that they have a duty to provide appropriate rehabilitation to assist injured workers with reaching their “maximum medical improvement” and injured workers will be under an obligation to undergo this treatment to mitigate their loss.

Again, If you – the injured worker- unreasonably refuse to have this treatment then the defendants can argue in court that you are not entitled to certain damages for your refusal to attend treatment and attempt to do as much as possible to improve upon your injuries.  Again A Court would not look favourably upon you for failing to do so,  and certainly would not award you future counselling,  rehabilitation or other medical and like (related) expenses.

Hope this makes some sense.

PS: Some of you, seriously injured workers who are eligible for a common law damages claim with injuries severe enough to score well over 30, 40% WPI may realise that, once assessed and issued with an irrefutable serious injury certificate (i.e >40%) your previously extremely evil insurance company may suddenly turn extremely (sickening) sweet… and start offering you spontaneous “benefits” such as increased home help, approve your surgery in less than 24 hrs, sending you emails asking you “if there is ANYTHING they can do for you to HELP you” etc…  Whereas before your % you could not get anything out of them and were treated like the worst criminal on earth… Needless to say why this is happening. It is all part of the big game they are playing, interlinked with the above article. So, do not hesitate to ask for much needed help, for else God knows they may hold it against you…. i.e.  you “must have been OK and able to cope with nothing, given you did not ask, or reply to their oh-so-generous offers of help…”


[Post dictated by workcovervictim and manually transcribed and inserted on behalf of workcovervictim]


8 Responses to “Mitigation of Damages: All injured workers are under a legal duty to mitigate their loss”

  1. Thanks everyone very interesting

  2. If you get any kind of compensation do you have to repay the weekly benefits you’ve received from the insurance company for the last 3 or however many year?

    • Latte1
      I think only if you settle through common law.
      Unsure how each state works

      • @Latte1: If you recover damages (via a common law claim) for your loss of earnings and earning capacity you are required to repay any (ALL) amount you have received from WorkCover for weekly payment of compensation.
        So, if you have been a long term recipient of weekly payments, this can add up to quite a bit (i.e 7 years on K30 = $210,000).
        The same applies if your case is settled out of court – they sort of take this amount into consideration, take it off the settlement offer.

        If you have received benefits from Centrelink following your accident, these must also be repaid. You may also be unable to receive benefits from Centrelink for a period of time following your accident.

        See article:

  3. Yes, I saw that segment and noticed how they only mentioned cases in the ACT for personal injury and workers comp, no mention of the other states especially NSW where no one gets that kind of money for workers comp. Then with the Victims Comp, no mention of Barry’s decimation of their compensation and yet nearly all examples were from NSW. Funny how the media twists the truth and I hope Derryn Hinch has to experience the pleasures of being an injured worker one day.

  4. very important for all injured workers seeking to take matters into the court in relation to your work injury, the points below should be considered and further studied:

    -your injury/s
    -incapacity %
    -medical evidence – what you can and can’t do
    -where you take your case (courts)
    -what laws you use
    -if the company was at fault for your injuries

    the best advice overall for any injured worker is to be honest and become more knowledgeable.

    below is a video link related to compensation/injury payouts and interesting to watch:

      • @HuntingWorkcover – thanks for the links – I watched the program and actually cringed when they made it look as if it was so easy for injured workers to actually get a compensation payout, sounded like the typical media bias – sprained ankle, broken toe gets half a million bucks etc. Where in reality we all know how damn hard it is a) to qualify for “serious injury” and b) to be eligible for a common law damages claim. One has to be really seriously injured. That “sprained/fractured ankle” could have turned out a nightmare – multiple irreparable fractures, infections, necrosis, CRPS etc…but as usual they do leave the details out.

        Now on the other hand I fully agree that Victims of Crime are extremely let down by our governments, again the works of Pearce and O’Farrell and the likes, and they should be ashamed to have nothing in place for those victims. My heart really goes out to every single victim of crime and may they also start lobbying for their rights!