Making a common law claim

A worker who is hurt at work might be able to make a common law claim. This means asking for compensation because their employer didn’t keep the workplace safe and their employer’s actions (or lack of action) caused their injury.

In a common law claim, it's up to a worker to prove that their employer breached their duty of care to provide a safe work environment and caused their injury, pain and suffering, and usually a loss of income. A loss of income relates to a worker’s past and future earning capacity. This means what they would have earned in the past if they hadn’t been injured and what they might have earned in the future. A payment made as a result of a common law claim to cover this loss is called damages.

What is a common law claim?

A common law claim is when a worker says their employer failed to provide a safe workplace and breached their duty of care.
A worker must prove this breach caused their injury, pain and suffering, and usually a loss of income.
Compensation (called damages) may cover past and future lost earnings, as well as future medical expenses.

When a worker is compensated for a work-related injury with payments and entitlements prescribed in workers’ compensation laws these payments and entitlements are called statutory compensation. Statutory compensation may include weekly payments as income replacement, related hospital, medical and rehabilitation expenses and lump sums to compensate for permanent impairment. A claim for statutory compensation is called a statutory claim.

Deciding to make a claim

If a worker has a relevant statutory claim the worker or insurer may request the injury be assessed for a degree of permanent impairment (DPI) by a doctor or the medical assessment tribunal.
Based on this assessment, an insurer may send a Notice of Assessment (NOA) (a document to a worker with a lump sum offer based on their assessed degree of permanent impairment resulting from their work-related injury.

Options after receiving a Notice of Assessment

Accept the offer – an insurer will process the payment of the lump sum and the claim will close permanently (the worker will not be able to ask for it to be reopened in future).
Reject the offer and pursue a common law claim instead.
Disagree with the offer – a worker can seek a second assessment should they disagree with the first. A worker can discuss this option with their insurer for more information, and/or seek independent advice and support from a legal representative or from the Workers’ Compensation Information and Advisory Service for Workers (free of charge).
Defer the decision – decide later, unless a worker decides to lodge a common law claim.

Degree of permanent impairment (DPI)

If the DPI is less than 20%:

If the lump sum offer is accepted, the statutory claim is finalised and a worker cannot make a common law claim or ask for their statutory claim to be reopened in future; or
If a worker says no to the lump sum, they can lodge a common law claim. However once a common law claim is made a worker will no longer be able to accept the lump sum offer.

If the DPI is 20% or more:

If the lump sum offer is accepted a worker is also able to make a common law claim; and

Note different impairments cannot be combined to reach 20%. For example, a worker that receives two DPI's for a physical and psychological injury, these cannot be added together to meet the 20% threshold.

How to make a common law claim

A worker (or their solicitor) must submit a Notice of Claim for Damages within 3 years of the injury.
A solicitor isn’t mandatory when making a common law claim. Solicitors are commonly used because the process is often legally complex and may be emotionally challenging as the worker must show an employer was at fault,
A solicitor will usually prepare the documents, gather evidence, and guide a worker through the process.
Workers may include additional injuries not part of their original statutory claim.

Common law without a statutory claim

Workers do not need have to have a statutory claim to seek a common law claim.
Some workers choose to skip statutory benefits and go straight to common law.
Workers won’t receive weekly payments or a lump sum but will still have to get a DPI assessment. They do this by applying to their insurer.

What happens next

After lodging a common law claim, all parties enter the pre‑proceeding phase.
The insurer investigates and decides if the employer is liable.
Workers may need to attend further medical appointments.
Most claims are resolved through negotiation, though some may go to court.
Settlements may be reduced by deductions from government agencies (e.g. Centrelink, Medicare, child support).
An employer cannot terminate a worker simply for lodging a common law claim.

Important:

This is general information only, not legal advice. For advice about specific circumstances, workers can speak to their legal representative, and employers can speak to their insurer.

Legal representation

The common law process is complex and can be hard to understand. Legal representation can help.

Legal representation for workers

Having legal representation isn’t required, but it may help a worker deal with the process and work out the best way forward when negotiating an outcome or going to court.

Legal representation for employers

An insured employer who has a common law claim lodged by a worker may be provided with legal representation by their insurer.

An employer should notify their insurer upon receipt of a Notice of Claim for Damages from a plaintiff law firm in relation to an injured worker.