If you have been injured in a car accident in Perth and have had to take time off from work, but your employer paid you for the time that you had to take off from work by paying you sick leave entitlements, can you claim the lost sick leave as part of your compensation claim? Most injured people will argue that ‘what if I get sick in the future, I won’t have any sick leave left and then I will be out of pocket’. On the other hand, insurance companies argue that you haven’t actually lost any income – you have been paid sick leave. Basically, as part of your employment contract, if you are unable to work because of an injury then you are contractually entitled to keep getting paid your full wages – so no lost wages.
The answer to the problem is really to not confuse the two issues: one is a claim for ‘past losses’ and the other is a claim for ‘future losses’.
When it comes to past lost wages the Courts have been fairly clear: if you have not been able to work then you have lost wages. But, if during the time that you were absent from work on sick leave you received other benefits, such as sick leave payments, then that income has effectively reduced your losses and so the value of the sick leave received must be deducted. Of course if you weren’t paid sick leave that is completely different. If you had to take unpaid time from work or had to take annual leave, then you can claim that.
But what about future losses?
The approach of Lian Hall Injury Law is that if you have lost your sick leave entitlements (you used them up when recovering from your car accident injury), and it is likely that you will need those benefits in the future, then you should include that loss in your claim. For example if before the accident you have had to regularly take sick leave days because of an unrelated medical condition, and now you have no sick leave days left, then when in the future you need time to get treatment you won’t have any sick leave left so you claim that loss. But you won’t get all of that loss. Effectively you are claiming that there is a chance that you will need those days in the future for another condition, but what is “the chance”? 50%? 10%? How much you get will depend on how likely it is that you are going to need the sick leave. If you have a proven chronic condition you may get a higher percentage, but if you cannot demonstrate a chance then you may get nothing.
The other factor is of course if at the time of settlement you are no longer working for the same employer as when you had the accident then you could not argue the lost chance. By reason of your resignation all future sick leave has been lost anyway.
The bottom line:
It is unlikely that you can include lost sick leave as part of past lost earnings. You may get something as part of the future loss, but that depends on whether you are still working for the same employer, and proving that firstly you have no sick leave left, and secondly what the chance is that you will need the sick leave.
Claiming lost sick leave as part of your personal injury claim in Perth is a difficult claim to make. You should chat to a lawyer and get advice. Just call Lian Hall Injury, we are always available to chat.
