Employer obligations in common law claims
27 March 2023
When faced with a common law claim as an employer, you may feel worried or overwhelmed about what’s to come or sharing details about a worker’s injury.
However, it is in everyone’s best interest to work closely with WorkCover and our lawyers throughout a claim, as it leads to better and fairer outcomes.
It’s important for employers to know they have a legal duty to co-operate with WorkCover, and our lawyers, by providing all information and documents that we reasonably require as early as possible.
These employer obligations and pre-court procedures are laid out in the Workers’ Compensation & Rehabilitation Act 2003 (the Act) and covered in more detail in the above webinar.
What are the obligations for WorkCover and for an employer?
If you have a WorkCover accident insurance policy, this means you’re covered in the event that one of your workers lodges a damages (common law) claim. If this happens, our lawyers will defend the claim.
However, our lawyers are bound by ethical obligations, and we will only defend claims if there are grounds to do so. We also have a continuing obligation to the worker.
This is why we need an employer’s full co-operation in providing us with all relevant information and documents while we’re investigating a claim, so we can fully understand if the claim can be defended and what further investigations we need to do.
Under Queensland law, WorkCover is required to facilitate a fair and expedient resolution of all the issues in damages claims, while keeping expenses to a minimum (section 273 of the Act)
Early transparency is key
When a common law claim is lodged, WorkCover’s lawyers will promptly contact the employer to discuss the claim, and to request evidence, which must then be provided to the lawyers of the worker making the claim.
In most cases we can resolve the claim before court proceedings start. If the claim progresses to a court process, there are additional requirements to disclose information.
That’s why it’s important to provide all relevant information to our lawyers as soon as possible. If you don’t disclose something, it may come out later in court and cost you in the long run.
If an employer fails to co-operate with us in this way and that incurs additional costs or is prejudice to our interests, then WorkCover is allowed to recover money covering these costs from the employer.
How long do the investigations go for?
The cause of the injury will be investigated both during the pre-court process, and while court proceedings progress.
This can happen by phone calls and emails between WorkCover’s lawyer and employers. Sometimes, we’ll appoint an investigator to liaise with the employer, or do an on-site investigation.
Panel lawyers may also attend employer worksites to inspect and investigate the accident. This doesn’t necessarily mean you’ve done anything wrong, but it does help us to understand the key issues and make assessments on liability for the injury and the likely claim costs.