Further to some questions posted regarding action for damages in respect of injuries in Victoria, we thought it worthwhile to resummarise the process and restrictions on the ability of an injured worker to recover common law damages in Victoria.
Common law damages claim in Victoria
As defined under section 134AB(37) and 134AB(2), a worker may only recover such damages if it is a “serious injury“.
A worker may also not bring proceedings under section 134AB unless there has first been a determination of the degree of permanent impairment of the worker under section 104B, and both the processes under section 104B and 98C have been completed.
In order to lodge a “serious injury” application – as per section 134AB(4) of the ACT- the worker must also submit the “serious injury” application to WorkSafe Victoria, regardless of the level of permanent impairment. [So, even if you happen to have been assessed by for example a Medical Panel as suffering from 30% or 43% or whatever above 30%, and as such deemed to be seriously injured under the ACT, you still have to make an application for a “serious injury”.]
As prescribed under section 134B(5) and the applicable Ministerial Directions, the worker (usually through his/her lawyer) must submit the following documents to WorkSafe Victoria:
- Form A – Serious injury application -this form basically reflects the injury(ies) being claimed, and whether the injured worker is seeking damages for pain and suffering alone, or also for economic loss. Note: normally once the form has been lodged it can not be amended. However, in Aug 2012, Judge Jenkins ruled in the matter Dostal v Lynch Group  VCC 1247; that the injured worker was able to amend such application within the 120 days period and provide further relevant information/evidence to WorkSafe Vic, befiore its determination (under s 134AB(7)). In this case the injured worker claimed only a “serious injury” in respect of pain and suffering and (accidentally) omitted the claim in respect to economic loss.
- A sworn Affidavit from the (injured) worker in support of the serious injury application – this generally covers the impact the injury (ies) has on the injured worker’s life
- a (proposed) Statement of Claim – this describes basically what happened in brief
- if the injured worker is also making a claim for economic loss (aka pecuniary loss, loss of past and future earnings), as well as pain and suffering, then tax returns need to be included, all those of the 3 years before the injury date and all those of the 3 years after the injury date
- Any supporting medical and other relevant evidence
A copy of the “serious injury” application is then also served on each person or party against whom the injured worker claims to have cause for a damages claim (common law claim).
Once the “serious injury” application has been submitted (usually by the injured worker’s lawyer(s)), WorkSafe Victoria has up to 120 days (and will almost always use the full 120 days) to consider the application and to make a decision as to whether grant it or reject it. WorkSafe Vic has to advise the injured worker (or his/her lawyer) in writing within the 120 days whether it accepts or rejects the application (s 134AB(7)).
Serious injury application granted
If the serious injury application has been granted by WorkSafe Vic, the provisions under s 134AB(12) will come into play, and certain prescribed steps will follow as described in that section of the ACT.
Also see the Online Claims Manual Common Law Phases
- The first step is a conference between the parties in an attempt to resolve the matter (note there are strict deadlines for holding such conferences as per s 134AB(12).
- If no resolution, then the parties will go through a process of statutory offers and counter-offers (again there are specific deadlines as per s 134AB(12).
- If there is still no resolution in the above offer and counter-offer process, the injured worker has a specific time limit (defined in s 134AB(12)) to issue common law damages proceedings (s 134AB(20A)). An extension in time can be granted in limited circumstances (s 134AB(20)).
Serious injury application rejected
If WorkSafe Victoria rejects the “serious injury” application, the (injured) worker has only 30 days to issue an Originating Motion in the Court, other than a Magistrate’s Court. This Originating Motion is per section s 134AB(16)(b) of the ACT and basically seeks leave of the court for the injured worker to be able to bring a common law damages claim.
A copy of the Originating Motion seeking leave of the court is then also served on WorkSafe Victoria (or self-insurer where applicable) and on each person against whom the injured worker claims to have a cause for a common law damages claim.
A Court which hears such an application will need to be “satisfied on the balance of probabilities that the injury is a “serious injury”” – see: s 134AB(19)(a)
If the injured worker also makes a claim for economic loss (as well as pain and suffering), the injured worker has to prove to the court that s/he is unable to be retrained, or rehabilitated, or to undertake suitable employment or ANY employment and the extent of such inability – section 134AB(19)(b).
Where the worker claims loss of earning capacity he or she, in addition to proving at least very considerable consequences of the claimed impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, must establish that at the date of WorkSafe Victoria’s or the Court’s determination the worker had a 40% or more permanent loss of earning capacity measured (except in the case of a worker under the age of 26 years at the date of the injury). This is extremely difficult to prove.
The prescribed process includes a comparison of the worker’s “after injury earnings” with his or her “without injury earnings”.“After injury earnings” is the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is earning, whether in suitable employment or not or is capable of earning in suitable employment, whichever is the greater.
Without injury earnings” is the worker’s gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred
There are basically 4 common law gateways under s 134AB
- If the assessment under s 104B, made before an application under s 134AB(4) is made, of the degree of impairment of the worker as a result of the injury is 30% or more, then the injury is deemed to be a serious injury within the meaning of s 134AB (ss 134AB(7)(a) and (15)). On the other hand, if after an injured worker has failed to satisfy a Court that the relevant injury is a serious injury pursuant to application under s 134AB(16)(b), the worker obtains under s 104B determinations that the degree of impairment of the worker is 30% or more, the worker is not entitled to recover damages for the same relevant injury (s 134AB(21A));
- WorkSafe Victoria (or the self-insurer) advising the injured worker that although the injury is not deemed to be serious, a ‘serious injury’ certificate will nonetheless be issued (s 134AB(7)(b) and (16)(a));
- If WorkSafe Victoria (or self-insurer) has failed to advise the injured worker, within the fixed period of 120 days allocated for making its decision, whether the injured worker had a serious injury, the injured worker is deemed to have a serious injury (ss 134AB(7) and (9));
- By leave of the Court, other than the Magistrates’ Court, on an application by the worker (s 134AB(16)(b)).
What is a serious injury
“Serious injury” is defined in s 134AB (37) to be one of the following:
- permanent serious impairment or loss of a body function;
- permanent serious disfigurement;
- permanent severe mental or permanent severe behavioural disturbance or disorder
- loss of foetus
Section 134AB(38) prescribes a number of definitions and criteria relevant to the concepts of “serious injury”, such as explaining the manner in which the terms “serious” and “severe” are to be judged (by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, with respect to pain and suffering or loss of earning capacity).
and obviously the most seriously and most compensated will be a young quadriplegic (paralysed from the neck down). They will also look at for example the number of painful surgeries you have had (and/or will) to endure – again someone who underwent 8 massive operations and faces more will be awarded more pain and suffering compensation than someone with a similiar injury who underwent 1 or 2 surgeries.
The average compensation payout in Victoria for pain and suffering is around $80,000.
(In the case of a mental or behavioural disturbance or disorder the consequences, when judged by comparison with other cases in the range of possible mental or behavioural disturbance or disorders, must be fairly described as being more than serious to the extent of being severe.)
The amount of compensation for a common law claim is capped
Section 134AB(22) prescribes minimum and maximum monetary limits applicable to common law damages. As such, the economic loss damages payable must be over the minimum threshold of $55,480 (otherwise they would not be payable) and under the maximum threshold of $1,249,310 (sub-s (a)).
The pain and suffering damages payable must be over the minimum threshold of $53,600 (otherwise they would not be payable) and under the maximum threshold of $543,920 (sub-s (b)) as at 1 July 2012.
Sections 134AB(24), (32) and (34) further limit damages to be awarded under s 134AB.
Section 134AB(25) necessitates that if a judgment, order for damages, settlement or compromise is made or entered in favour of a worker (or the dependents of a worker) under s 134AB, the amount of damages must be reduced by:
- the amount of compensation paid otherwise than under s 98C or 98E (in respect to economic loss damages) and by
- the amount of compensation paid under s 98C and 98E (in respect to pain and suffering damages).
If a judgment is obtained or a compromise or settlement made in respect to proceedings under s 134AB in respect of an injury, where pecuniary loss damages are awarded no further weekly payments are payable and where pain and suffering damages are awarded no further payments under s 98C or 98E are payable (s 134AB(36)). This basically means that if you succeed at a common law for economic loss, you must repay workcover all previous received weekly payments (also payments to Centrelink if applicable), and no weekly payments will be further paid to you. If you only succeed at a pain and suffering damage, you must only repay (they deduct) the lumpsum you have received.
Note if you are successful at an economic loss damages claim, you are automatically successful at a pain and suffering claim (but not the other way around).
Section 134AB(27) of the ACT deals with costs payable in the context of applications under s 134AB(16)(b), depending on the outcome.
Sections 134AB(28), (28A), (28B) deal with costs payable in the context of a common law damages proceeding.
Sections 134AB (29), (30) and (31) regulate the recovery of party/party and solicitor/client costs in proceedings to which s 134AB applies.
Common law damages proceedings must be commenced within 6 years from the date of accrual of the cause of action. However, certain periods of time are disregarded for the purpose of calculating the period of time (This includes for example the time your injury is deemed unstable by a medical panel).