Workcover common law damages claim – summary


The restrictions placed on injured workers who want to claim common law damages against their employers vary across states (jurisdictions). An injured worker can seek damages (by means of a common law claim) if they believe they suffered a serious injury due to their employer’s fault (negligence), but in most states they have to meet certain (harsh) thresholds. The following post gives a quick overview of common law damages claims.

Workcover common law damages claim – summary

The seriousness of an injured worker’s injury will generally determine whether an injured worker can claim damages against their employer, in what’s known as a common law damages claim.

In Victoria, for example, an injured worker must suffer a whole person impairment (WPI) of 30% or more to be eligible to claim. In NSW a WPI of 15% is required.

WPI thresholds in Australian states (note this is from 2013) and a rough guide only as some jurisdictions have updated thresholds

damages-claim1For a more detailed overview of threshold and entitlement guide, see: Comparison of workers’ compensation arrangements in Australia and New Zealand (2013)

It is possible for an injured worker not to satisfy that test and still be able to claim damages, but only when the injury is “considered to be serious”, such as a permanent impairment of a body function, serious disfigurement – such as scarring – a severe psychiatric injury, or losing a foetus. In Victoria, you can apply for a serious injury certificate in Court by means of the qualitative or narrative test.

The types of damages workers can pursue in Victoria and some other jurisdictions are general damages for pain and suffering and loss of enjoyment of life, and loss of earning capacity.Note these damages are capped.

Damages types and caps in our states (rough guide, 2013)

damages-claim2For a more detailed overview of threshold and entitlement guide, see: Comparison of workers’ compensation arrangements in Australia and New Zealand (2013)

Another factor that determines whether an injured worker can claim damages (providing they have the required WPI) includes the pathology of their physical injury. If an injured worker suffers a musculoskeletal injury, for example, this might not be as serious as an injury that involves disc derangement or nerve roots.

Exactly how invasive treatment is for the injured worker (such as whether they require surgery(ies)), how much (pain)medication they are taking, and how serious that medication is, are other important factors.

Further, how the injury has affected the injured worker’s ability to perform their chosen occupation, and how it has affected their social and recreational life, such as their ability to exercise, can also determine a worker’s eligibility to claim for damages.

Note: Psychological injuries are treated differently because the workcover legislation specifies that an injury must be severe, rather than serious.

The severity of a psychological injury is determined by the medication the worker is on, how often the psychologically injured worker sees a doctor, whether that doctor is a psychologist or a psychiatrist, and whether the worker has required in-patient hospital treatment.

Employers (and their insurers) are notified of an injured worker’s intention to sue it for damages (common law damages claim) through a serious injury application (i.e VIC), which it then immediately forwards to its insurer, along with the worker’s employment information and its investigation into the incident that caused the injury. Remember that the injured worker must also prove that his/her employer was negligent in order to be eligible for a damages claim.

A seriously injured worker must make a serious injury application for each set of damages, and attach documents, such as their sworn affidavit, evidence of how the injury occurred, tax returns, medical evidence and clinical notes, to the application.

If a damages claim goes to court and an employer denies liability, the employer (through its insurer) will try to rely on witnesses to the incident, expert reports about whether its workplace presented a hazard to the injured worker prior to the incident, and its own investigations and even photographs, to defend its case.

One factor that will reduce the amount of damages an employer has to pay if a claim goes to court is whether the injured worker was contributory negligent.

If an injured worker contributed in some way to their injury, the court will determine apportionment of liability.

The majority of cases resolve without litigation (without going through court), with employers (and their insurers) choosing to settle rather than go to court.

Some workcover schemes are extremely restrictive when it comes to claiming common law damages claims.

For example, NSW has an extremely restrictive scheme because workers can only claim damages for past and future economic loss. Whilst the WPI threshold is lower (15%) than in VIC (30%), injured workers can’t recover out-of-pocket expenses for their injury, they can’t claim future care, medical or treatment costs, and they can’t claim gratuitous care.

The catch-22 for NSW injured workers when making a damages claim,  is that it is the only way they can “release themselves from the workers’ compensation scheme “, get some money, and then take on the responsibility of looking after themselves in the future.

As we all know, the workers’ compensation system is not a system that… anyone should in their right mind want to stay in for the rest of their lives! But the restrictive NSW (and some other states) law can prevent such needed escape. For example, it restricts access to those claims for people who are severely injured but need future treatment costs, repeated surgeries, wheelchairs [and] home modifications.

Always consult a very experienced personal injury lawyer to find out whether you may have a common law damages claim, and whether you would be better off to drop or not to drop the economic loss part of the claim, as to maximise your “benefits”.



2 Responses to “Workcover common law damages claim – summary”

  1. So I just need some advice if anyone can help me…I had a claim in qld for disc prolapses in my spine and w/c qld only paid me a week as they said it was a “pre existing” injury. Have now been off work for 5 months and only just feeling like i might be able to go back to work (that is if anyone will hire me now with a w/c claim in and a chance that this could happen again in that proffession) I have lawyers involved and now have to make a choice whether to either contest the w/c claim or let it go and put in a common law claim in for damages…i was told i could have problems in the future with this injury by a surgeon and that is why I dont want to get screwed over by work cover if this happens again as it was definately negligent on their part…but I want to know if anyone has had a similar case? Will it be worth going thru another 12 to 18 months of dealing with this emotional roller coaster? I had absolutely nothing but trouble from work cover….Any help or advice would be appreciated…

    • @Overitalready… I had a pre existing low back injury, no problems with it though and now I have more problems than I have ever had before. Problem is I have report from one Dr saying there is acute damage among the pre existing and my treating Dr wont sent me to a surgeon. I have more areas of injury now, including a tarlov cyst and pudendal nerve injury to boot, and then there is upper back and neck… The only injury they will accept is my neck, BUT they are supposed to cover treatment for aggravation to pre existing, just not surgery that will fix the original injury. Its in my too hard basket atm but I have to move forward in order to get something done as I can no longer afford to pay for treatment myself.
      Good luck, but the decision has to be yours with guidance and support from your GP and lawyer

read-before-u-commentThis is a statement pointing you to our seriously injured but esteemed and honourable Social Networking Sites Warning and our comment policy. A must read in the context of a very adversarial workcover system! Remember to mention in which state you reside if you seek advice.

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