Common Law Claims – Workers Compensation

A workers compensation common law claim is a court action against a negligent employer which can be commenced separately (although it is linked as you will see) from a workers compensation claim in certain circumstances.

Under the Workers Compensation Act an injured worker who is entitled to workers compensation can only lodge a common law claim in the Courts against their employer for that injury if they meet the following criteria:

  • An assessment is undertaken by an AMS doctor who certifies that the injured worker has a 15% or more ‘whole person impairment’ (WPI); and
  • That assessment is registered at WorkCover; and
  • The injured worker lodges an election notice with WorkCover within 3 years from the date of injury Limitation Period Date.

Limitation Period Date 

The ‘Limitation Period Date’ (LPD) is different for each injured worker but is generally three (3) years from the date of injury:

  • If your LPD is missed you cannot commence an action in common law against your employer for that injury.
  • In any event a common law claim also needs to be commenced (Writ lodged) within three (3) years from the date of the injury so the decision to get assessed needs to be made at least 4-5 months prior to the LPD expiring.

What If The Negligent Party Was Not My Employer?

The process set out above does not apply, if the negligent party causing your injuries was not your employer, except that you still need to start an action within three (3) years from the date of the injury, although you should start the process much earlier.

How Do I Protect My Common Law Rights?

The only way you can protect your workers compensation common law rights against your employer is to have an assessment by an approved medical specialist. It is not possible to guess if you will reach the required threshold, as far as the whole person impairment percentage goes, that is the role of the specialists.

You do need to have a bit of common sense when thinking about getting a whole person impairment assessment as it would be extremely unlikely you would be assessed as having a 15% WPI  for a paper cut that has completely healed, but if that cut led to other significant problems that might be another story.

If you want to do all you can to protect your workers compensation common law rights you should not put off speaking to us immediately as once your LPD has gone you can never make a workers compensation common law claim against your employer even if you were severely injured in a clearly negligent act.

The Workers Comp Act limits your ability to start a claim in many ways and you should speak to us immediately by calling us on 08 6143 5200 if you are unsure of what it is all about but want to protect your common law rights.

We are offering you a free Appointment so we can explain it to you in detail and answer any questions you might have.

A common law claim may give you access to full compensation, however, even if it turns out you are able to make a claim you need to examine all the circumstances leading to your injury with a critical legal eye to establish your chances of success at court. Besides, you will have to be informed fully as to the costs of running a claim and the complications that can arise.

What Happens When You Elect to Make a Common Law Claim?

At Least 15% And Less Than 25% Whole Person Impairment

If you have been assessed as having a Whole Person Impairment of at least 15% but less than 25% the following applies after you make the election to pursue a common law claim:

  1. Workers compensation payments for statutory expenses stop;
  2. If you have funds left in the Prescribed Amount your weekly payments will gradually reduce and will stop completely after six (6) months unless the prescribed amount is exhausted first;
  3. Any damages recoverable at court are capped by the Workers Compensation Act.

Whole Person Impairment Of 25%, or Higher

If you have been assessed as having a Whole Person Impairment of at least 25% weekly payments and statutory expenses continue as it would have if you hadn’t made the election and damages are not capped.

If you want to know how your claim will be affected by an election to pursue a common law claim  you can call us on 08 6143 5200 and we will be happy to run through it with you free of charge.

What Happens Next?

Once the election notice has been filed with WorkCover you will need to make an application to the Courts to commence an action in negligence which must also be before the LPD expires.

BE AWARE If You Are Planning On Doing It Yourself

An action of this type is complex and requires an intimate knowledge of the court documents and procedures as well as a complete understanding of the law to give you the best chance of success.

If you try to do it alone you will be facing expert opponents who are well versed in defending actions of this type and they will not hesitate to use that skill to try and defeat you.

What Is Needed To Succeed With A Common Law Claim?

Duty of Care

Generally to succeed in a claim for negligence the injured worker needs to show that the employer, or any other negligent party, who they believe caused or contributed to the injury:

  • Owed the injured worker a duty of care;
  • Breached that duty of care; and
  • The injured worker suffered loss or damage as a result of the breach.

A simple definition of the term ‘duty of care’  – all reasonable care must be taken whilst performing an act that could foreseeably harm others.

An employer normally owes a duty of care to an employee both in common law and due to the operation of Acts like the Occupational Safety and Health Act 1984 and the Occupiers Liability Act 1985.

  • Trying to determine a breach of the duty of care in any individual case is a complex matter requiring an examination of all the circumstances and factual information leading up to the time of the actual injury.
  • A very simple example of a breach of the duty of care by an employer would be something like:
  • The employer directed the employee to use an electric drill which was known by the employer to have faulty wiring and the worker received an electric shock causing injury and damage.

Negligence of the employee does not automatically bar a common law claim as all aspects of the claim need a thorough investigation before that can be determined.

To succeed at trial you need to have the judge find that you have at least a 15% whole person impairment and the employers negligent actions contributed to your injury and loss.

What Can You Claim For In A Common Law Action?

The process of working out what monetary figure can be claimed in a common law action is generally undertaken at the beginning of the process and then made formally in a document entitled Particulars of Damage.

While it is a necessary part of any action it can be difficult to establish a figure until all the relevant information is at hand, including (but certainly not limited to) medical reports, witness statements, costs of past and future medical treatment, gratuitous services calculations and the calculation of both past and future superannuation contributions.

The types of damages that can be sought include:

  • Past and future loss of earnings
  • Past and future loss of Superannuation
  • Past and future medical expenses
  • Past and future gratuitous services related to nursing or domestic duties
  • Loss of enjoyment of life
  • Pain and suffering

What Are The Costs Of Making A Common Law Claim?

This type of action can be lengthy and complex requiring witnesses such as medical experts and lay witnesses as well as a lot of work investigating and preparing the application.

You can expect to incur costs such as:

  • Lawyer/Barrister fees
  • Specialist report fees
  • Witness costs
  • Investigation costs (ASIC searches etc.)
  • Court fees, amongst others; and
  • In the event you do not succeed the defendant’s legal costs

The employer/insurer will expect to be repaid any workers compensation payments made during the workers compensation period out of any judgment sum. Generally if a matter settles this is taken into account during the negotiations.

You can generally expect to have your legal fees and associated expenses (court fees, specialist report costs etc) paid by the defendant if you are successful in a court action, but sometimes not all.

If your claim does not succeed you can expect the defendants to ask that you pay the costs of their defence.

The vast majority of claims do not go to trial for a wide range of reasons, however, the work still needs to be done just in case.

We believe that the inability to afford a lawyer can cause stress and place an unnecessary strain on your family relationships when you should be focusing on recovery.

A workplace injury can have a devastating effect on your finances which might affect your ability to pay legal fees, therefore Anvil Legal offers our No Win No Fee Solution* to eligible clients.

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