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The common law claim process

Common law claims are lodged by injured workers (usually via their lawyers) who allege their injuries were caused by their employer's negligence. If a Court agrees, it will find the employer liable and order an amount of money (commonly referred to as 'damages') to be paid to the worker by WorkCover as the employer's insurer.

Notice of claim

Usually, the first an employer will know about a common law claim against them is when they receive a Notice of Claim for Damages in the mail. This document is usually sent by the worker's lawyer and sets out the allegations of negligence against the employer. The claim will provide information about the damages the injured worker alleges they have suffered.

A worker generally has up to three years from the date of the injury to lodge a Notice of Claim for Damages. It is common practice for a copy to be sent to WorkCover at the same time. Upon receipt of a Notice of Claim, WorkCover will instruct lawyers immediately.

WorkCover's lawyers act on behalf of WorkCover and in the interest of the employer. Lawyers will communicate with the employer throughout the claim, involving them in the investigations and decision-making process. WorkCover as the insurer is, however, ultimately responsible for all decisions on the employer’s behalf.

Reviewing the claim

Under the Workers' Compensation and Rehabilitation Act 2003 (the Act), WorkCover has six months to investigate the claim with the assistance of the employer, and then it must either admit or deny that the employer is liable for the worker's injury.

In addition to investigating liability, WorkCover's lawyers will usually organise independent medical examinations of the worker (and surveillance in appropriate cases) to establish the extent of the alleged injuries and determine the quantum of the claim (i.e. the amount of damages likely to be awarded by the Court).

Negotiation

Once investigations are complete, the Act requires the parties to make genuine efforts to negotiate an out-of-court settlement before they are allowed to start court proceedings. These negotiations usually involve a face-to-face conference between WorkCover, the worker and the parties' lawyers. WorkCover will also invite the employer to attend the conference because even though any damages and legal costs are paid by WorkCover, these payments may impact the employer's future premium calculations.

In straightforward matters, the parties might choose to minimise legal costs by negotiating via telephone or email rather than attending a conference. Regardless of how a settlement is agreed, the worker must agree in writing to release WorkCover and the employer from any further liability and to keep the settlement confidential.

This "pre-proceedings stage" might take up to 12 months to complete (sometimes longer) and, if a settlement still hasn't been reached, then Court action commences. However, it can still be a further 12 months or more before trial.

Trial

Employers may be required to make themselves and their staff available to give evidence at the trial, which may last one or many days depending on the issues in dispute. Judgement is usually delivered some weeks or months after the trial finishes, together with any orders about costs.

The Court will normally order a party to pay their opponent's costs if their outcome at trial is worse than what they were offered during negotiations in the pre-proceedings stage. This is to encourage both parties to carefully consider all reasonable out-of-court settlement offers.

Last updated
14 June 2019

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