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Making a common law claim

When you make a common law claim, you're saying your employer didn't provide a safe work environment and they breached their duty of care to you. In a common law claim, it's up to you to prove this breach caused your injury, pain and suffering, and usually a loss of income.

A loss of income relates to your past and future earning capacity. This means what you would have earned in the past if you hadn’t been injured and what you might have earned in the future. A payment made as a result of a common law claim to cover this loss is called damages.

The decision to make a common law claim

When you decide to make a common law claim, your ‘no fault’ statutory claim for workers’ compensation (if you made one) will end. At that time your injury might be assessed by a medical practitioner or the Medical Assessment Tribunal (MAT for short). They'll work out whether you have a permanent impairment and to what degree. This is called your DPI (degree of permanent impairment).

Based on this assessment, WorkCover may offer you a lump sum payment in a Notice of Assessment (NOA) letter.

What are my options?

Once you receive your NOA letter, you should review it carefully and consider the choice you’d like to make.

You'll have three options.

  1. Accept the offer.
  2. Reject the offer.
  3. Defer the lump sum payment offer to make a decision later.

Your options will also depend on your percentage of DPI, which falls into two categories:

My DPI is less than 20%

If you accept your permanent impairment and the lump sum compensation payment, your statutory claim can be finalised. Once accepted, you'll receive your lump sum payment within seven days. Accepting this offer and lump sum payment means you won't be able to make a common law claim.

If you decide not to accept the lump sum offer, you can make a common law claim. If your common law claim isn't successful, you won't be entitled to the lump sum later.

However, if you defer the decision you can decide on the lump sum offer later. This deferment will end if you decide to make a common law claim.

My DPI is 20% or above

You can accept the lump sum compensation and also make a common law claim for damages. It’s worth noting that the 20% figure can’t be reached by adding two or more DPIs together (for example, a physical and a psychiatric injury) to make 20%.

How do I make a common law claim?

You or your lawyer will need to submit a notice of claim for damages. This describes the allegation of negligence against your employer. The submission will generally need to be done within three years of the date you were injured.

A lawyer will normally be the one to fill out and submit the documentation. They'll then assist you throughout the common law claim process. At this time you may choose to include additional injuries that weren't part of the original statutory claim.

Legal representation

The common law process is complex and can be hard to understand. Having legal representation isn’t required, but a lawyer will help you deal with the process and work out the best way forward when negotiating an outcome or going to court.

WorkCover’s legal panel will represent employers who have a common law claim lodged by a worker as we're their insurer. WorkCover’s goal, however, is to reach the best outcome for all parties. We also have a continuing obligation to the worker.

Important things to consider before making a common law claim:

  • To be successful in a common law claim, you need to prove your employer didn't provide you with a safe work environment and breached their duty of care. You must prove this breach led to your injury. If this can't be proven, no damages will be paid.
  • Most common law claims take up to a year to reach an agreement. If your claim can’t be resolved by negotiation, court proceedings may start. This process will then take much longer than one year.
  • You may need to have further medical assessments.
  • You, your colleagues, and your employer may need to give more detailed factual evidence.
  • You'll need to supply information relating to your employment history, taxation records, and medical history.
  • There are time limits you have to meet to start a common law claim.
  • Common law is generally not covered by Legal Aid. Individual firms may offer payment options to help with any financial concerns. The Queensland Law Society has a list of lawyers by location and fact sheets that explain legal costs. Visit their website for more information.
  • This video has information which might help you decide whether to proceed with a common law claim.

Making a common law claim without a statutory claim

Some injured workers may wish to start a common law claim but not claim for statutory benefits. In these cases, the claim will still have the same investigation and review process but there'll be no weekly compensation paid and no lump sum offered. If accepted, a Notice of Assessment will be issued, simply letting you know the relevant DPI.

What happens next?

After you've made the claim you'll enter the pre-proceeding phase. During this phase WorkCover will investigate the claim and then either admit or deny whether the employer is liable for the injury. There may be more medical appointments required. From there you'll start negotiating an outcome. Learn more about pre-proceedings.