New legislation to provide certainty for injured workers

• Cook Government introduces legislation to retrospectively validate historical elections made for workers pursuing common law damages claims
• Bill will address adverse implications resulting from a WA Court of Appeal decision

The State Government has introduced legislation in response to a WA Court of Appeal decision which would have prevented some workers from accessing common law damages due to a technicality regarding the order in which documents are required to be registered.

Under the Western Australian workers compensation scheme, workers with a whole of person impairment of at least 15 per cent must 'elect' in order to pursue common law damages.

On 5 September 2024, the WA Supreme Court of Appeal delivered Neville v Choice One Pty Ltd [2024] WASCA 104 which has significant implications for workers with current common law proceedings in the courts.

The decision means many workers pursuing common law damages under the now repealed 1981 Act risk being deprived of accessing common law damages and having proceedings discontinued, halted, delayed or struck out.

Common law elections made under the 2023 Act, which came into operation on 1 July 2024, are not affected by the Neville decision.

The amendment Bill will retrospectively validate and restore the status of common law elections made under the 1981 Act, and will also preserve any current proceeding that has been affected by the Court of Appeal decision.

Comments attributed to Industrial Relations Minister Simone McGurk:

"The Cook Government has acted swiftly to ensure workers are not denied the opportunity to have their common law claim progressed following the decision made by the WA Court of Appeal.

"This Bill will provide clarity for industry and workers progressing claims through the court system."