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Understanding common law claims in Queensland

Published on 10 November 20223 May 2023

Please note that this post was written for Queensland audiences and the information within may not apply to other regions.

There are two types of workers’ compensation claims – statutory claims and common law claims.

Any injured worker can make a statutory WorkCover claim regardless of who was at fault, as long as work was a significant contributing factor to the injury.

But only those who were injured at the fault of someone else’s negligence can make a common law workers’ compensation claim.

What is a common law claim and who can make a common law claim in Queensland?

A common law claim is a claim for damages, that is, a lump sum payment if an employer is found to have breached their duty of care to a worker and an injury has resulted.

To be able to bring a common law claim, as stated above, you need to be able to prove that your workplace was negligent in some way and that negligence contributed to your injuries.

In most cases, it is the employer who’s failed in their duty of care to provide a safe work environment such as not maintaining equipment, not hiring competent and skilled workers or providing instructions and appropriate training.

However, it’s important to note that employers may not be liable for accidents where they’ve done everything considered “reasonably necessary” to maximize safety. The bar, however, is very high in that an employer has a duty to provide its employees with a safe place of work and a safe system of work.

A good question to ask in seeking to identify whether an employer has been negligent is to ask what the employer could or should have done to prevent the injury. Iff an alternative, safer method was available, an employer may be held to be negligent.

What is a common law lump sum inclusive of?

Common law damages may include monetary compensation for:

Pain and suffering
Past and future loss of income and superannuation
Past and future medical costs

When can a common law claim be made?

In addition to the above, generally you can’t start a common law claim until you receive a Notice of Assessment from WorkCover showing your permanent impairment percentage (that is, how injured WorkCover doctors think you are). If your assessment comes back higher than 0%, it will also come with a lump sum offer of compensation.

It’s important to note that if someone else was at fault for your injury you should not accept the offer from WorkCover without consulting a personal injury lawyer first – this is because once you do, you forego any right to make a common law claim, which as mentioned,

It’s also worth noting that even if your injury is assessed as 0% you still pursue a common law claim for damages.

What are the time-frames to making a common law claim in Queensland?

As with every compensation claim, there is a strict three-year time limit to bring about a claim for damages.

This means that you have three years from the date of injury or when you first knew of the injury, to commence legal proceedings otherwise your right to claim damages will be “statute barred”.

There are some circumstances where an extension of this time limit can be applied for. It’s recommended you seek legal advice to ensure all necessary steps are taken.

How are common law damage calculated? How much is my claim worth?

There is no one size fits all for injury compensation claims so it is difficult to determine the exact value of your claim at first glance without having all the evidence.

Your potential common law payout is calculated on several factors including how old you are, the type of injury and severity of the injury, whether you require ongoing medical treatment, how much you’ve lost in wages and how much you’re expected to lose in future, rehabilitation and medical expenses and your level of liability (i.e., to what extent were you responsible for your injury).

It also depends on your degree of permanent impairment as determined by a permanent impairment assessment.

And, as discussed above, damages compensation generally includes compensation for three key areas, and each of these needs to be calculated on its own merit.

And so, unfortunately it is almost impossible to provide clients with a figure until a thorough investigation has been done and an offer is presented from the defending party.