Construction Site Injury Claims in Queensland: WorkCover, Subcontractors and Suing the Builder

Common construction site injuries

• falls from roofs, scaffolds, ladders, stairwells, voids and unprotected edges
• being struck by falling tools or materials, or by moving plant and vehicles
• scaffolding and formwork collapses
• crush injuries from plant, loads and trench collapses
• back, shoulder and knee injuries from lifting and awkward work
• electric shocks and burns
• lung disease from dust, including silica dust from cutting stone, concrete and bricks.

For dust disease, see our guide to silicosis compensation.

What WorkCover pays

If you are a worker, WorkCover Queensland pays without anyone having to prove fault:

• hospital, surgery, specialist and rehabilitation costs
• weekly payments, based on your normal weekly earnings, while a doctor certifies you unable to work
• return-to-work support
• a lump sum for permanent impairment once your injury has settled.

The lump sum depends on your degree of permanent impairment (DPI), a percentage of the whole person assessed once the injury is stable and stationary. If it is under 20%, you must choose between the lump sum and keeping your right to sue your employer. You can defer the offer, and it is deferred automatically if you do not respond within 20 business days. At 20% or more, you can take the lump sum and still sue.

Our step-by-step guide to WorkCover claims explains the process.

Subcontractors and ABN holders: are you a worker?

Many people on building sites are engaged as subcontractors. Whether WorkCover covers you depends on whether you are a “worker” under section 11 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Since 1 July 2013, a person is a worker if they work under a contract and, for that work, are an employee for the purposes of PAYG withholding under federal tax law.

In most cases, that means the Australian Taxation Office’s employee test is the key question. Having an ABN or sending invoices does not settle it. What matters is the whole working relationship, for example:

• whether you are paid for your time or for a completed result
• whether you can send someone else to do the work, or must do it yourself
• who supplies the tools, equipment and materials
• who controls how, when and where you work
• who bears the cost of fixing defective work.

A tradesperson paid an hourly rate to work under the builder’s direction, using the builder’s equipment, may be a worker even with an ABN. Someone who quotes for a job, supplies their own plant, employs others and fixes defects at their own cost is usually not. If you have an ATO personal services business determination, you are generally not a worker.

Falls from height and scaffolding

Falls cause many of the most serious construction injuries. Queensland’s Work Health and Safety Regulation 2011 has its own fall rules for construction work, with set height thresholds (sections 306E to 306J).

The same fall prevention rules apply to work on a roof with a slope of more than 26 degrees. A safe work method statement (SWMS) is required for construction work where a person could fall more than 2 metres.

Scaffolding rules

• Licence. Putting up, changing or taking down scaffolding where a person or object could fall more than 4 metres is high risk work. It needs a basic, intermediate or advanced scaffolding licence, depending on the type of scaffold.
• Handover. Before a scaffold covered by section 225 is used, the person managing or controlling it must obtain written confirmation from a competent person that it is complete.
• Inspections. For suspended, cantilevered, spur and hung scaffolds, and other scaffolds with a possible fall of more than 4 metres, a competent person must inspect before use, after an incident affecting stability, after repairs and at least every 30 days (section 225).

A missing guardrail, a scaffold put up or altered by someone without a licence, missing inspections, or a missing SWMS can all be evidence of negligence in a damages claim.

Suing your employer, the builder or another trade

WorkCover is only part of the picture. If someone’s negligence caused your injury, you may be able to claim damages, which can include pain and suffering, past and future lost earnings, lost super and future treatment costs.

Your employer

A claim against your employer follows the WorkCover Act. You must give a notice of claim for damages before you can start court proceedings, and WorkCover payments already made are generally refunded from the damages (section 270).

The principal contractor or another trade

On a building site, the business that caused the injury is often not your employer. It might be the principal contractor that controlled the site, the scaffolder, the crane or plant operator, or another trade that left a hole uncovered or dropped materials. A claim against a business that is not your employer follows the Personal Injuries Proceedings Act 2002 (Qld). Part 1 of its notice of claim is due within nine months of the injury, or one month after you first instruct a lawyer and the other party is identified, if that is earlier.

If more than one business was at fault, each can be sued. Under sections 6 and 7 of the Law Reform Act 1995 (Qld), a business that pays can seek a contribution from the others, in the share a court finds just. That is a dispute between them and does not reduce what you can recover.

Hit by something falling from a building site

Builders owe a duty of care to the public as well as to workers. The Work Health and Safety Act 2011 (Qld) also requires a business to ensure, so far as is reasonably practicable, that other people are not put at risk by its work (section 19(2)), and a breach of that duty can be relevant evidence in a negligence claim. If you were hit by falling materials or tripped over site debris on a footpath, you may be able to claim against the builder or the responsible contractor.

That claim generally follows the Personal Injuries Proceedings Act 2002 and its notice rules. If a registered vehicle hurt you, the claim is made against its CTP insurer under the Motor Accident Insurance Act 1994 instead. Photograph the scene, get the builder’s name from the site sign, and see a doctor promptly.

What decides how much a claim is worth

• the injury, how long it takes to recover and any lasting impairment
• your trade, and whether you can go back to physical work
• your age and earnings
• which businesses were negligent
• any reduction for your own share of the blame.

Our claim estimator explains how Queensland damages are made up.

Time limits

WorkCover6 months PIPA notice9 months Damages3 years

WorkCover claim. Lodge within six months after your entitlement arises, usually the day a doctor first assesses the injury (Workers’ Compensation and Rehabilitation Act 2003 (Qld), section 131). WorkCover can accept a late claim for a mistake, absence from Queensland or other reasonable cause, but it does not have to.

Damages claim. Most injury actions must start within three years, but dust-related injury actions have no limitation period under section 11(2) of the Limitation of Actions Act 1974 (Qld). WorkCover application deadlines and pre-court notice steps still apply. See our guide to workers’ compensation time limits.

What to do after a construction site injury

1. Step 1 Get medical treatment and tell the doctor it happened at work.
2. Step 2 Report the injury to your employer and the site supervisor, and make sure it goes in the site incident register.
3. Step 3 Photograph the scene, including edges, scaffold tags, guardrails, ladders and equipment, before anything is changed, if it is safe to do so.
4. Step 4 Write down who your employer is, who ran the site, which trades were working nearby, and who saw what happened.
5. Step 5 Lodge your WorkCover claim with a work capacity certificate, even if you work under an ABN and are unsure you are covered.
6. Step 6 Get legal advice before you accept any lump sum or sign anything from an insurer.

Our guide I’m hurt at work, now what? covers the first few days in more detail.