Common law claims after a workplace injury in Queensland

Common law claims in personal injury offer a pathway for individuals to seek and obtain compensation for loss caused by another party’s negligence. For workers who have been injured on the job, understanding your rights to pursue a common law claim for workplace injuries is essential to ensuring you receive the compensation you are entitled to.

Suffering a personal injury at work can have a life-changing impact on your health, finances, and overall well-being. While statutory benefits under Queensland’s workers’ compensation scheme can cover costs such as lost wages and medical expenses, it may not account for the full extent and broader impact of your injuries. A common law claim may provide more comprehensive compensation where a work-related injury has been caused by negligence.

What is a workers’ compensation common law claim? 

Common law claims for work-related injuries typically arise when an employer has failed to provide a safe working environment which results in an injury to an employee.

Queensland laws allow for two types of workers’ compensation claims:

• Statutory claims: This type of claim operates under a no-fault scheme, which provides injured workers who qualify for the scheme with interim payments to cover expenses such as medical treatment related to their injury and lost wages, regardless of who was at fault for their injury.
• Common law claims: These claims allow injured workers to seek further compensation (by way of damages) if it can be substantiated that their employer’s negligence caused their injury.

The following are just some examples of situations where workplace negligence may lead to a common law claim:

• Unsafe working conditions: failure to provide proper equipment, personal protection equipment or failure to maintain a safe working environment;
• Lack of proper training: inadequate training or supervision can lead to unsafe practices or workplace accidents;
• Failure to follow safety protocols: disregarding or violating workplace safety protocols, regulations or procedures; and
• Vicarious liability: employers can be found liable for the negligence of their employees if that employee was acting in the course of their employment.

Time limits for lodging a workers’ compensation common law claim

It is important that injured workers are aware of the strict time limits which apply to lodging common law claims.

In Queensland, the following time limitations include:

Lodgement of a statutory workers’ compensation claim

Prior to pursuing a common law claim, injured workers must have an accepted statutory workers’ compensation claim with WorkCover Queensland or their employer’s self-insurer.

Ordinarily, a statutory claim must be lodged within six months from the date of injury or within 6 months from the date on which a worker first consulted a relevant health practitioner if the injury has been sustained over a period of time.

If a statutory claim is accepted, weekly payments and medical expenses will usually continue until a worker’s injuries are deemed ‘stable and stationary’ (that is, maximum medical improvement has been achieved).

If an injured worker has suffered a permanent impairment because of their injuries, they should undergo further medical assessment to determine the degree of permanent impairment (DPI). Based on this DPI, a lump sum compensation offer may be made. If the worker accepts this lump sum, it is important to understand that in doing so, they will give up their right to make a common law claim.

Notice of claim – common law claims

A common law claim must generally be filed within three years from the date of injury.

It is critical to obtain legal advice early in relation to these claims, as failing to adhere to these timeframes could result in losing your right to claim. In particular, if a worker receives an offer of lump sum compensation, they should seek legal advice BEFORE accepting that offer.

GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114

The benefits of pursuing common law damages after workplace injuries

Common law claims can allow injured workers to claim for more compensation (monetary value) than the statutory claim process provides. With a common law claim, you may be able to claim for the following:

• Full loss of earnings: recovery of both past and future economic loss resulting from the injury, including the impact on future career advancement and earning potential;
• Pain and suffering: damages may be awarded for the impact of both physical and psychological symptoms resulting from the injury;
• Medical attendances and rehabilitation: compensation for past and ongoing treatment, rehabilitation, and in some circumstances the need for assistance with day to day living.

What to expect during the process of making a work-related common law claim

The average common law claim usually lasts from 6 to 18 months. This process can be complex and overwhelming for some injured workers. Manage your expectations by understanding some key stages of a common law claim.

Medical assessments

You may have to attend multiple medical assessments throughout the common law claim process. These assessments are conducted by your own treating doctors and/or by independent practitioners, commonly referred to as an Independent Medical Examiners (IME), depending on the purpose of the assessment. These assessments play a pivotal role in supporting your claim and assist in determining the level of compensation you may be entitled to receive. 

Pre-proceedings and negotiations

After your injuries are assessed, the insurer or your employer’s legal team will review your claim and determine whether they accept liability.

Both parties will typically engage in pre-court negotiations often facilitated through compulsory conferences and offers of settlement. These meetings will often involve your lawyer and/or other legal counsel, the employer’s representatives, and the insurer. If an agreement is reached, the claim can be resolved without the need for a court hearing.

Court proceedings

If a settlement cannot be reached during pre-court proceedings, the matter may proceed to litigation in court, where formal court documents must be filed, legal arguments and expert witness reports are utilised, and a judge will determine the outcome.

Get help from a workers’ compensation lawyer

At Hall Payne Lawyers, we are here to support you through the complexities of statutory workers’ compensation and common law claim processes. Although you may have already lodged your claim for statutory entitlements and you benefits have commenced, the common law process is highly complex. It is important that you seek legal advice if you are eligible for common law damages.

Our experienced personal injury lawyers are dedicated to ensuring you receive the compensation which you are entitled to.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au