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Overview of common law

This was the first in our series of common law webinars aimed at raising awareness and education on how to mitigate the impact of claims escalating to common law.

Ross McConaghy and John Hunter from Jensen McConaghy Solicitors discussed the Queensland workers' compensation common law claim process and provided relevant information on:

  • negligence or liability
  • non delegable duties owed to employees
  • quantum or heads of damages
  • documentation.

You can watch the webinar recording or download the presentation slides. Questions and answers from the session are listed below.

  • What is the time limit to make a claim under common law after the date of accident?
    • The ordinary time limit in Queensland for bringing a common law claim is three years from the date of the accident (Section 302(1) Workers' Compensation and Rehabilitation Act 2003 (WCRA); Section 11, Limitation of Actions Act 1974).
    • In some circumstances, the Notice of Claim for damages can be given outside the three year limitation period (e.g. if WorkCover gives the worker a Notice of Assessment for the injury less than six months before the end of the three year period, then the worker has six months from the date the Notice of Assessment was given to lodge a Notice of Claim for damages).
    • A worker can also apply to the Court for leave to commence proceedings outside the limitation period if the worker can establish that 'a material fact of a decisive character relating to the right of action' was not within his/her means of knowledge until after the limitation period had expired (Section 31 Limitation of Actions Act 1974).
    • The law relating to limitation periods can be quite complex, particularly where injuries are alleged to have occurred over a period of time.
  • Will there be a contributory negligence where there is a failure to enforce?
    • Possibly. It really depends upon the facts of the case and the worker's conduct. For example, if there is a failure to enforce a policy that requires workers to wear safety glasses and a worker is injured when metal from a grinder enters his eye, the employer is likely to be found liable. The worker's damages might be reduced for contributory negligence if the Court finds that he had previously been properly instructed to wear the glasses (see S.305H WCRA).
  • Are emails admissible in court? If not, how can they be used as evidence?
    • Yes, emails are admissible in court. This topic will be discussed in the upcoming webinar 'What is Evidence' to be held on 26 February. Of interest you may like to read section 95 of the Evidence Act 1977.
  • Can you please clarify 'The precautionary measure was reasonable to the risk'?
    • An injured worker cannot establish liability unless it can be shown that the injury was preventable and that the precautionary measure that might have prevented the injury was a reasonable response to the risk. In other words, if the burden to the employer of introducing the precautionary measure outweighs the risk of injury, then a court will not find the employer liable. For example, if the precautionary measure will cost a large sum of money to implement, and the risk of injury is only slight, a court would not reasonably expect the employer to implement that measure. If however the risk of serious injury is high and the burden of implementing the precautionary measure is insignificant, then a court would (or may ultimately) expect the employer to put that measure in place.
  • Does the future economic loss (FEL) take into account pain and suffering? If not, is there a formal calculation or process used?
    • No. Pain and suffering is dealt with under 'general damages'. Damages for pain and suffering are assessed by reference to the 'injury scale values' set out in the Schedule to the Workers' Compensation and Rehabilitation Regulation 2003.
  • When it gets to the stage where the worker cannot return to their previous role after an injury and no other roles are available to accommodate their ongoing limitations i.e. after a Functional Capacity evaluation, how can common law claim be minimised when the worker is ultimately out of a job?
    • Some examples may include:
    • Retraining into another role is likely to be the only option. Pursuant to Section 220 WCRA, WorkCover must take the steps it considers practicable to coordinate the development and maintenance of a rehabilitation and return to work plan in consultation with the injured worker, the worker's employer and treating registered persons. During the claim it's very important to discuss with WorkCover the durability of the workers' employment (downsize in business, contract ceasing or functionally the business will not be able to accommodate).
    • Employer/employee communication is paramount. The way in which an employer communicates and facilitates the exit process with a worker can be the catalyst for a common law claim. Stay in touch with the worker throughout their statutory claim and their rehabilitation process.
    • Exit Assistance—an employer may provide assistance in returning the worker to new employment by funding a provider service such as: resume writing, re-training, or application for job assistance.

For more information on how to interpret and track the common law claims process, visit the dedicated common law services knowledge bank on our website.

Our common law case studies are also a good resource to help you understand the practical application.

Don't forget to register for other webinars in our common law series.

Thur 26 February
12.30 – 1.30 pm

What is evidence

Register now

Thur 26 March
12.30 – 1.30 pm

Safe work procedures and PPE

Register now

Thur 30 April
12.30 – 1.30 pm

Special considerations when working with a young and ageing workforce

Register now
Spaces are limited so get in early and register now!

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.

Last updated
11 January 2019

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