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Common law

Under the Queensland workers' compensation scheme, workers have the right to sue their employer for negligence through a common law or damages claim.

If the worker is able to prove negligence, a lump sum payment of damages is awarded to the worker taking into account their future economic loss (loss of wages) and pain and suffering.

WorkCover will defend the claim on behalf of the employer, keeping them informed and involved throughout the process. We will attempt to resolve the claim with the injured worker as part of the pre-court process which is set out in the legislation. WorkCover will aim to do this informally as this process is more cost effective for everyone involved. If we cannot resolve the claim informally, a more formal process called a compulsory settlement conference will be arranged.

If a resolution of the claim cannot be achieved during the pre-court process the matter will proceed to litigation and potentially to a trial. The average common law claim takes around 12 months to resolve, but if the claim proceeds to litigation, the process will take longer.

For injuries sustained between 15 October 2013 – 30 January 2015, a worker must have a greater than 5 per cent degree of permanent impairment to be able to pursue a common law claim. Read more about these legislative amendments.

For lawyers involved in common law claims for workers, we have published useful guides to deal with common technical issues including how to lodge common law claims for injuries sustained between 15 October 2013 – 30 January 2015.

If you are a worker, you can read more about entitlements and how common law benefits are calculated.

You can also read our common law case studies.

Apologies and expressions of regret exempt from consideration in common law claims

Expressions of regret and apologies provided by employers following workplace injuries are now exempt from being considered in a common law claim. This is intended to encourage employers to give apologies and reduce the distress experienced by injured workers. Any expression of regret or apology made prior to 30 October 2019 will be inadmissible if a relevant notice of claim for damages is made after 30 October 2019. Read the guidance for employers.

Last updated
14 May 2020

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