WorkCover Common law claims
Table of Contents
What is a WorkCover Common law claim?
If you sustained injury during the course of your employment in Victoria, and that injury occurred as a result of someone else’s negligence or contributed to your injury through negligence, then you may be able to pursue a common law lump sum claim.
You may have an entitlement to a common law lump sum if you suffer a physical injury or a psychological injury.
A common law claim does not necessarily mean you need to go to court. In fact, most WorkCover common law claims do not end up in court.
At what stage can you pursue a common law claim?
Typically, a WorkCover common law claim is lodged after an impairment lump sum claim has finalised.
However, in certain instances, it makes sense to skip the impairment claim (as in, not lodge one) and lodge a common law claim. This is referred to as direct lodgement.
What are the elements needed to succeed in a common law claim?
There are two things that must be present in order to succeed in a common law claim.
- That the injury was a serious injury
- That the injury occurred as a result of negligence
The first thing that you must have to succeed in a common law claim is what’s called a ‘serious injury’.
What is classed as a serious injury?
The law defines a serious injury as;
◦ A permanent Serious impairment or loss of a body function or
◦ A permanent serious disfigurement or
◦ Permanent mental or permanent severe behavioural disturbance or disorder or
◦ Loss of a foetus
In order to prove that you’ve suffered a serious injury you need to obtain what is called a serious injury certificate.
What is a ‘serious injury certificate?
A serious injury certificate is a document that legally recognises that you have a serious injury resulting from your work related injury.
How do you obtain a serious injury certificate?
There are two ways that you can obtain a serious injury certificate.
The narrative test
This is probably the most common way through which people are classified as having a serious injury and they obtain WorkCover serious injury certificates.
This test involves evaluating the impact that an injury has on a persons life and quality of life.
It involves comparing how the person was before the injury and how they are after the injury.
The bigger the difference between the before and after, the more likely they are to be considered as having a serious injury. It is about telling your story about the impact the injury has on your life.
The in order to satisfy the narrative test, you need to show that the consequences of the injury on you, are, at the very least, very considerable.
A relevant consideration here is the impact the actual injury has on you, specifically.
To illustrate this, here’s an example.
Let’s say that two people have lost the tip of one of their fingers.
One of those people is a farmer.
The other is a 20-year-old concert pianist.
Although the injuries are the same, the impact that the injury will have on the concert pianist will likely be greater than on the farmer.
Determining whether someone has a serious injury involves examining the impact of the injury as a whole and involves looking at how the consequences have impacted the person’s life as the person was and would likely have been, but for the injuries that they sustained.
The 30% deemed test
The second way that a serious injury certificate can be obtained is if you have been assessed as having a 30% or more whole person impairment rating.
Under the WorkCover system, you will have your whole person impairment assessed if you elect to proceed with an impairment lump sum claim.
What is the process for obtaining a serious injury certificate?
In order to obtain a serious injury certificate you (with the assistance of your lawyer) must lodge a serious injury application. This must be submitted to WorkSafe Victoria.
A serious injury application must include the following material:
- A claim document that details the injuries being claimed and other relevant matters
- An affidavit sworn by you. This is basically a document that tells your story about how the injury affects your life.
- A statement of claim document that outlines what the injury is, how the injury is related to your employment and other relevant details.
- Medical material in support. This is medical material from both your treating medical practitioners and other doctors that may have assessed your injury.
- Material supporting economic loss if you are claiming economic loss. This will involve providing copies of your tax returns for three years before the accident and three years after the accident.
Once the serious injury application has been sent off to WorkSafe, they will then appoint lawyers to consider your application.
They have 120 days to consider the application and then to make a decision as to whether to grant or reject it.
They need to determine whether to say yes, you have a serious injury, or no you do not.
This decision can come very early during the 120 days or it can come on the 120th day.
Once a decision has been made, they will advise your legal representative in writing.
What happens if the serious injury application is granted?
If your serious injury application is granted, that is you are given a serious injury certificate, the first thing that will happen is that a conference between the parties will be arranged to see whether the matter can be resolved.
There are specific deadlines for when such a conference must be held which are set out in the law.
If the matter cannot resolve at the conference, then the parties are required by law to go through a process of making an offer and counter offer. Again, there are deadlines set down by which these offers must be made.
If the matter still does not resolve after the offer and counter offer stage, then the next step in the process is for you to issue a writ. This is a court document which initiates court proceedings.
In this case it will either be in the County Court or Supreme Court of Victoria. The matter will be before a Judge alone or in front of a jury.
Before the matter proceeds to court, there will be a mediation. The aim of the mediation is it provides an opportunity for the parties to try and settle the matter. This generally occurs a few months prior to the court hearing.
A mediator will be appointed by the parties to assist the parties to resolve the matter.
Only if the matter cannot resolve at mediation, will it continue on to court.
What happens if the application is rejected?
If your serious injury application is rejected, then if you still wish to pursue the matter, you would need to issue what’s called an originating motion. This is a formal court document that initiates court proceedings.
Originating motions are usually issued in the County Court of Victoria.
This originating motion document then gets served on WorkSafe and the law firm that is acting on their behalf.
What can I expect if my matter runs in court regarding ‘serious injury’?
It will then be up to a judge alone to make a determination as to whether you have a serious injury or not.
The hearing will be concerned with whether your injury is a serious injury.
Many matters that are set down for hearing will resolve prior to ever running in court. They may resolve by the other side granting you a serious injury certificate or, they may resolve by way of a monetary settlement.
If your matter does proceed to hearing, once the matter has concluded, the judge will hand down his decision. This may be immediately after the matter has finished running, or it could be months down the track.
What happens if I win?
If you are successful in court, then you will proceed to a settlement conference as described above.
What happens if I lose?
If you lose, then unless you elect to appeal the decision, that is the end of your claim for a common law lump sum.
The second thing that you must have in order to succeed in a common law lump sum claim, in addition to a serious injury, is negligence.
Your lawyers will argue that a duty of care was owed to you and that duty of care was breached by your employer and that as a consequence of the breach of the duty of care, you suffered an injury.
You can read all about the concept of duty of care here.
In a nutshell, employees have a duty to provide and maintain a safe workplace and they need to take reasonable care not to harm their workers where there might be a reasonably foreseeable risk of an injury occurring.
A failure to do so can result in a finding of negligence if a worker suffers an injury.
What can I be compensated for under a common law claim?
There are two things that you may be compensated for under a common law claim.
The first is compensation for pain and suffering
This represents the pain and suffering that you have gone through and will go through in the future as a consequence of your injury.
When considering the extent to which pain and suffering interviews with the ordinary activities of life, that will generally involve consideration of the following;
- Cognitive functioning
- Capacity for self-care and self management
- Performance of household and family duties
- Recreational activities
- Social activities
- Sexual life and
- Enjoyment of life
The second thing you can be compensated for is loss of earnings
Loss of earnings is sometimes referred to as pecuniary loss.
This is compensation for the loss of earnings that you have had and will likely have into the future.
It is important to note that the law is not going to compensate you dollar for dollar in terms of what you have and all will lose. There is a specific way that loss of earnings is calculated and it takes into account the rest of life (e.g. that you may not have worked until retirement age).
How long to lodge a common law claim?
A common law claim should be lodged within six years from when the injury occurred (or six years from when an injury first manifests itself). Claims can be brought outside the six year period in some instances.
A WorkCover common law claim is a lump sum claim that a person can claim under the WorkCover system.
In order to succeed in a common law claim, a person needs to have a ‘serious injury’ and there needs to be negligence on behalf of an employer or third party.
An injured person can be compensated for pain and suffering and potentially loss of earnings under a common law claim.
Read more: The WorkCover common law process