Compensation for a work accident: two tracks that affect each other
A work accident sets in motion an insurance track before the National Insurance Institute, which does not examine fault, and alongside it a tort track against the employer or a third party. Section 328(a) of the National Insurance Law connects the two, so both should be examined together.
Two tracks, not one
A person injured at work usually faces two separate tracks, which run under different rules and against different parties:
- The insurance track - a claim to the National Insurance Institute, which does not depend on anyone being at fault.
- The tort track - a claim against the employer or against a third party, in which liability must be proved.
The tracks are not alternatives. They run in parallel, and there is a direct financial link between them: National Insurance benefits are deducted from tort compensation. A decision about one track therefore affects the other, and it is worth examining both from the outset.
The first track: the National Insurance Institute
The work injury insurance branch of the National Insurance Institute pays, according to the Institute own published material, several types of benefit:
- Injury allowance - compensation for loss of income in the period after the injury during which the insured person is unable to work, for up to three months.
- Work disability pension or grant - according to the degree of disability determined by a medical committee.
- Medical treatment for the consequences of the work injury.
- A pension or grant for family members, if the worker dies as a result of the injury.
The conditions of entitlement to injury allowance, as the Institute publishes them, include being insured under work injury insurance, the occurrence of a work injury, producing a first medical certificate for a person injured at work stating the diagnosis and the period of incapacity, and not having worked as a result of the injury.
This track does not examine fault. It examines the injury itself and its connection to the work.
Source: National Insurance Institute, work injury benefits; conditions of entitlement to injury allowance.
The second track: a tort claim
National Insurance benefits do not cover the whole of the damage. They do not pay, for example, for pain and suffering, and at times they do not reflect the full loss of earnings. That gap is the field of the tort track.
The tort of negligence is defined in section 35 of the Torts Ordinance, and concerns an act that a reasonable and prudent person would not have done in those circumstances, or an omission that such a person would have avoided. Section 36 makes clear that the duty is owed to every person, whenever a reasonable person ought to have foreseen the possible harm.
In an employment context this means examining the working environment: the equipment supplied, the training given, protective measures, supervision of the work, and the condition of the place where it was carried out. Where a third party is involved - a contractor, an equipment manufacturer or a landowner - the examination extends to that party as well.
Source: Torts Ordinance [New Version], sections 35 and 36.
Breach of statutory duty
Alongside negligence stands a further tort, which carries particular weight in work accidents. Section 63 of the Torts Ordinance defines a person in breach of statutory duty as one who fails to perform a duty imposed by legislation, where that legislation was intended for the benefit or protection of another person.
Occupational safety is regulated by legislation and by detailed regulations, so breach of a concrete provision may establish this cause of action directly, without recourse to the general standard of the reasonable person.
Hence the importance of early documentation: a safety report, notification of the accident, and any document showing the condition of the equipment or the instructions given at the site.
Source: Torts Ordinance [New Version], section 63.
The link between the tracks: deduction and subrogation
Section 328(a) of the National Insurance Law [Consolidated Version], 5755-1995, governs the position where the Institute has paid a benefit and there is at the same time a cause of action obliging a third party to compensate that same injured person.
The mechanism works as follows: the party liable in tort deducts the value of the National Insurance benefits from the compensation, the injured person receives the difference, and the deducted sum is transferred to the Institute.
Two practical conclusions follow. First, there is no double recovery for the same head of damage. Second, and more importantly, the scope of the benefits determined on the insurance track directly affects the sum that remains with the injured person on the tort track - so both proceedings should be examined together.
Source: National Insurance Law [Consolidated Version], 5755-1995, section 328(a).
The order of steps
The sequence that the facts of a work accident case usually call for:
- Medical treatment and documentation - and obtaining a first medical certificate for a person injured at work, which is one of the conditions of entitlement to injury allowance.
- Notification to the employer and documentation of the circumstances, including witnesses and the condition of the equipment.
- Filing the claim with the National Insurance Institute for recognition of the injury and for injury allowance.
- A medical committee to determine the degree of work disability.
- Examination of the tort cause of action in parallel - against the employer, and in appropriate cases against a third party.
Timing matters. Some of the evidence that establishes the tort claim - the condition of equipment, procedures, witnesses - disappears over time, so an early examination of both tracks is preferable to a late one.
In summary
A work accident sets two tracks in motion. On the insurance track the National Insurance Institute pays injury allowance, a work disability pension or grant, medical treatment, and benefits for family members, without examining fault. On the tort track liability is examined under section 35 of the Torts Ordinance, and at times under section 63 where a statutory safety duty has been breached. Section 328(a) of the National Insurance Law connects the two: the benefits are deducted from the tort compensation and the sum is transferred to the Institute.
Because the tracks affect one another, the difficulty lies not in filing the National Insurance claim but in managing both together and in establishing the tort cause of action while the evidence still exists.
If you were injured at work, contact us with your medical records and the details of the incident. We will examine both tracks and the first step.
The questions that come up most
If I received a National Insurance benefit, can I also bring a tort claim?
What does National Insurance pay following a work accident?
On what is a tort claim against the employer based?
Why does acting early matter?
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