Hundreds of workplace negligence claims have been cast into doubt, after a decision by the WA Court of Appeal highlighted a potential bureaucratic bungle by a government agency.
The WA government has told the ABC it is urgently reviewing the judgement, which was handed down last week, and the potential operational or legal issues it has raised.
Lawyers say the decision has exposed a possible legal fault in how documents were being lodged with Work Cover – the administrative government agency responsible for the workers compensation scheme.
It has raised concerns over whether the claims of many workers in the process of seeking negligence damages have been rendered invalid.
What's the process in WA?
Anyone who has been injured at work as a result of their employer's negligence usually has a right to claim compensation – or damages.
But in order to launch legal proceedings, the worker must first submit two documents with Work Cover.
The first is a medical assessment and the second is a form electing to pursue their negligence claim.
What went wrong?
In his recent Court of Appeal decision, Justice Michael Buss found that in order to seek damages, the medical assessment must be registered by the director of Work Cover before the second form can be lodged.
But personal injury barrister Joel Trigg said that was not how the Work Cover system had been functioning. He said this was due to the use of an online portal system which uploads both documents at the same time.
"The effect of the decision is essentially that most, if not all, of the elections that have been recorded using Work Cover's process are invalid," he said.
What's the fall out?
Mr Trigg, who also chairs the Law Society of WA's personal injury committee, warned this may put hundreds of claims in jeopardy.
"It potentially impacts all these workers who have been injured at work, not through the fault of their own, but through the negligence of their employer," Mr Trigg said.
"And the judgement is going to affect their ability to pursue those rights and receive adequate compensation."
Mr Trigg said the decision may also expose both the workers' and employers' lawyers to legal action.
The Law Society of WA said it had written to the state government "expressing concern about the validity of the elections registered at Work Cover" as a result of the judgement.
What's next?
A spokesperson for the state government told the ABC it was aware of the Court of Appeal decision.
"The minister for industrial relations has asked Work Cover WA to review the decision as a priority," the spokesperson said in a statement.
"To determine whether it raises any operational and legal issues for the scheme and any potential implications for previous and future common law election matters."
Meanwhile, the Law Society of WA will hold a meeting with Work Cover representatives on Monday to discuss the implications of the decision.
Mr Trigg said the government needed to act urgently.
"The government needs to … potentially introduce legislation which would validate the elections that have been recorded using the Work Cover's portal and using the process that's been in place."
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