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Common law damages

Common law damages is a payment made after a common law claim.

It's paid if:

  • an employer is found to have breached their duty of care to a worker, and;
  • a worker has experienced an injury that's caused them loss as a result of that breach.

The payment of common law damages is made once a settlement is reached. This can happen through negotiation or by going to court.

What makes up common law damages?

The amount of damages given for pain and suffering is formally defined in the legislation depending on the type and severity of the injury.

You may be paid this type of damages if you've lost income because of your injury, or if this might happen in the future.

Your payment may also consider employer funded superannuation contributions.

Calculations can be based on lost wages up to retirement age.

This type of loss can include:

  • not being able to work
  • having to work in a role with a lower salary
  • not being able to do full hours
  • not being able to do overtime.

Even if you're able to go back to work in your pre-injury role without loss of income, you may still be entitled to a ‘global amount’ for any problems you might have in getting another job in the future.

Sometimes, you might be able to go back to work in your pre-injury role, but not permanently. If a doctor has indicated this is the case, common law damages could include an amount for loss of income for some years up to retirement.

If you're assessed as requiring ongoing medical treatment, your past and future medical costs will be included in your damages claim.

This may include:

  • future surgery
  • medically recommended therapies
  • pharmaceutical items (such as pain medication)
  • travelling expenses
  • in some cases only: past or future paid care.

How we calculate common law damages

The damages amount will consider:

  • your likely remaining working years; based on your age and the retirement age
  • the availability of employment; based on your current employment situation and the availability of similar work in your area
  • your degree of impairment; based on independent medical examinations and reports
  • your income; based on:
    • your past and current work history
    • tax and financial documents including copies of PAYG Summaries, previous tax returns and Australian Tax Office Notice of Assessments
    • Centrelink records
    • employer records
  • expense costs; based on:
    • medical records
    • independent medical examinations and reports
    • Medicare and Pharmaceutical Benefits Scheme (PBS) records
    • tax invoices and receipts for expenses
  • you may also receive legal costs. This will be based on legislation and will depend on the degree of your permanent impairment.

How are common law damages paid?

After the amount of common law damages is determined, we'll need to see if you owe money to other organisations, or if some money already paid to you by WorkCover needs to be refunded. To do this, we're legally required to obtain notices from Services Australia which include the following organisations:

  • Medicare
  • Centrelink
  • Child Support Agency (CSA)
  • if it applies, we may also obtain a charge from the National Disability Insurance Agency.

After your claim has settled and any of this money has been deducted, your lawyer's legal fees will be taken out of the damages paid to you.

To release your payment, we'll need a signed form from you. By signing the form, you acknowledge you won’t be able to seek more money from WorkCover, or your employer, for this work-related injury and you'll keep the settlement details confidential. Your lawyer will explain the details of the form to you before you sign it.

We can then pay the settlement to your lawyer’s trust account (held on your behalf).