Going to court
Preparing to go to court can be an uncertain process. Before you start court proceedings against your employer, WorkCover will attempt to negotiate an outcome through an informal process, or at a compulsory conference.
Here's some information to help you understand what’s involved when you go to court.
Court proceedings can only be started if we have haven’t been able to settle through negotiation. The process is started by serving the employer and WorkCover with a Statement of Claim (SOC) within 60 days of the compulsory conference. Your lawyer can help with this. We'll send you a Notice of Intention to Defend and Defence. This notice will outline any facts in dispute and any others that have been admitted.
Other documents will be filed by both parties that set out the evidence to be used to determine the damages. Find out more in the 'Gathering information before going to court' section below.
Your lawyer will represent you and manage discussions between yourself, your employer and WorkCover. Your employer will be represented by an external panel lawyer who works for WorkCover. The panel lawyer will regularly update the employer about the progress of the claim and manage the process on their behalf.
If you're no longer employed, WorkCover is still able to continue supporting your return to work.
Certain documents and assessments may be required to support your claim in court.
You may have already undergone several medical examinations as part of your initial statutory claim. However, you might be asked to provide more current medical evidence which will be used to assess your common law claim.
Other evidence we can request includes:
- past tax returns
- prior employment records
- medical records
- training records
- witness statements.
You and your employer must exchange (via your lawyers) all relevant documents. This process is known as disclosure.
Sometimes a third party may be involved, for example if your injury happened on a site not owned by your employer.
There may be further attempts to resolve your common law claim through mediation, before going to court. This is where an independent person will work with everyone to try to agree on a settlement. If the common law claim isn’t resolved at mediation, the parties’ lawyers will submit a request for a trial date.
On a date set by the Court, the trial will take place, where a judge will hear the evidence and deliver their judgment on the case.
After your court case finishes, there will be a decision and costs payable by one party to another. These rules can be complex and your lawyer is best to explain these to you.
Your common law claim will be successful if you prove your employer breached their duty of care and that the breach caused you loss. In most cases this means you'll receive a damages payment.
If you're not successful, you won't be awarded damages.
For more information about going to court, visit the Queensland Courts website.