WorkCover - Adviceline Injury Lawyers

What is a common law claim?

Some work related injuries are caused due to someone's fault or negligence. This can be because of your employer's failure to provide a safe workplace, although it can include the acts of another party with no connection to your employer. A claim seeking compensation for an injury where negligence is involved is called a common law claim. The compensation sought in a common law claim is called damages.

A common law claim is separate and in addition to your entitlements under the WorkCover system. 

Damages

There are 2 main categories of damages sought in a common law claim:

1. Pain and suffering, or general damages – this is compensation for the pain and suffering you have endured and will continue to endure, and your loss of enjoyment of life;

2. Past loss of earnings and future loss of earning capacity – compensation for wages lost because you have been unable to work, and/or are unable to work into the future.

Even where your injury was caused by your employer or another person's fault, you do not automatically have the right to sue for damages. You must first establish that you have suffered a serious injury.

What is a serious injury?

You must have a serious injury to be able to bring a common law claim. This means either receiving an impairment assessment of 30% or greater in a lump sum application under your WorkCover claim (this is what we refer to as a Deemed Serious Injury), or qualifying under one of the definitions of serious injury in the Accident Compensation Act. These are:

• Permanent serious impairment or loss of a body function
• Permanent serious disfigurement
• Permanent severe mental or permanent severe behavioural disturbance or disorder
• Loss of a foetus

Whether you meet any of the above definitions involves an assessment of the injury itself and the consequences of the injury to see if these consequences are ‘more than significant' when compared with other cases.

The Victorian Workcover Authority (or WorkSafe) through its lawyers, may issue a certificate confirming you have suffered a serious injury. If your application is denied, then a case can be issued in the County Court of Victoria seeking a certificate, where a judge decides whether you meet the serious injury criteria.

Does the serious injury certificate entitle me to sue for both types of damages?

No, a certificate can either be granted to allow you to sue for both pain and suffering and loss of earnings, or just pain and suffering. It is very difficult to get the right to sue for loss of earnings. Unless you have a deemed serious injury, you can only claim for lost earnings if you can prove that your present and future earnings have dropped by at least 40%, and that this drop will be permanent. A detailed analysis of your earnings and the medical reports would need to be done to see whether you establish this loss. It is a particularly onerous requirement because the analysis of your future earnings does not look at whether you are actually working or can get a job, but whether your medical condition allows you to work, and if so, how much money you could theoretically earn. 

What happens when I get the serious injury certificate?

If a certificate is granted, you then have the right to sue for damages. There are steps that must be completed before you can issue your court case, such as a settlement conference and written offers from each party. If your case does not settle during this negotiation stage, a Writ would then be issued in the County Court or the Supreme Court. This is the case where negligence and damage has to be proven and the outcome is usually determined by a judge and jury of six.   

How can I prove it was their fault?

Over the years, courts have broken down negligence into various elements. Some of these are:

The Defendant must have owed you a duty of care.

• It is important to note that for work injuries, employers have a duty to provide a safe place of work, and therefore it is almost always the case that a duty of care was owed.

The defendant must have breached their duty of care.

• In work injury cases this involves looking at whether a reasonable employer in the defendant's position should have foreseen that their conduct or inaction involved a risk of injury to you or a class of persons including you.

The defendant's breach must have caused your injury.

• This relies on medical opinion to confirm that you have suffered an injury and that it is related to the defendant's negligent conduct.

How long have I got to bring a claim?

A common law claim must be commenced within 6 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms. You should seek advice well before the 6 years expires, however, as preparing a case takes some time. Even if you don't think your injury is serious, you should at least obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.