All about WorkCover WorkCover Common law damages claims in Victoria

Workcover common law

What is common law?

The term ‘Common law’ refers to precedents and authority set down by court decisions developed over hundreds of years.

When courts make decisions, in certain cases those courts are creating new laws and this ads to the body of law known as common law.

Common law and WorkCover

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 if they contributed to your injury through negligence), then they are potentially able to pursue a common law claim for damages.

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.

What must be proven to succeed in a common law damages claim?

There are two things that must be proved.

  • That the injury was a serious injury
  • That the injury occurred as a result of someone else’s negligence

Common law damages must prove serious injury and negligence

Serious injury

The first thing that must be approved on the road to common-law damages is that you have suffered a serious injury.

What is classed as a serious injury?

The law to find 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

How do you prove you’ve suffered a serious injury?

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 the injury that you suffered at work.

How do you get 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 will have 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 have a serious injury.

It is about telling your story.

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

Another relevant consideration here is the impact the actual injury has on you. To illustrate this, let’s say that Two people have lost the tip of one of their fingers.

One of those people is a retired farmer. The other is a 20-year-old concert pianist. Although the injuries are the same, impact that the injury will have on the concert pianist Will have a much more significant impact 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 to obtaining a serious injury certificate is to show that you are you have been assessed as having a 30% or more whole person impairment rating.

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 form document which reflects 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 which outlines the nature of the injury, what happened and issues relating to negligent
  • 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 work safe, 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.

This decision can come very early during the 120 days or it can come close to the 120th day.

Once a decision has been made, they will advise you or your legal representative in writing as to the outcome.

What happens if the application is granted?

If you’re 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 an attempt to resolve the matter.

There are specific deadlines for when such a conference must be held which are set out in the law.

If the matter cannot then 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 in the law for these offers being made.

If the matter still cannot resolve after the offer and counter offer period, then the next step in the process is for you to issue a rate. 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 case will be before a judge alone or in front of a jury.

Before the matter gets to court, there will be a mediation. The aim of the mediation is to settle the matter if possible. 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 you’re serious injury application is rejected, then if you still wish to pursue it, you need to issue what’s called an originating motion. This is a formal court document that initiates court proceedings.

You’ve got 30 days to do so.

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 opposing your application.

Your matter then needs to be prepared to run in court.

What can I expect if my matter runs in court?

It will then be up to a judge alone to make a determination as to whether you have a serious injury or not.

The court hearing will not concerned at self with issues relating to negligence. It will be solely about whether you have a serious injury or not.

Many cases that are set down for court 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 run in court, depending upon the issues involved, it could run for half a day or it could run for several days.

These cases do not involve a jury and will be heard by judge alone.

You’ll be required to be in the witness box and to give evidence which means you’ll be asked questions by your lawyers and the other side lawyers.

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.

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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 common-law damages.


The second thing that must be proven is negligence or ‘fault’.

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.

What does duty of care mean? 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?

There are two things that you may be compensated for in a common law damages claim.

The first is for pain and suffering damages. This represents the pain and suffering that you have gone through and will go through in the future as a consequence of the injury that you suffered.

When considering the extent to which pain and suffering interviews with the ordinary activities of life, that will generally involve consideration of the following;

  • Sleep
  • Mobility
  • 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 minimum threshold for pain and suffering is $53,600 and the maximum threshold is $543,000.

The second thing you can be compensated for his loss of earnings or pecuniary loss damages. 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).

The minimum amount of economic loss payable is $55,480 and the maximum amount is $1,249,310.

Does a pre existing injury stop me from pursuing a common law claim?

I’ve had clients think that they weren’t able to pursue a common law claim because they had a pre existing injury that was aggravated by the work accident.

You are able to pursue a claim if you had an injury before the accident, but you are only entitled to be compensated to the extent your injury is now worse.

Working with your doctors, your lawyer will need to disentangle what impact the work injury had on you, removing the impact your pre existing injury had on you.

The injury or condition does not need to be completely new.

You can lodge a WorkCover claim if you suffered an aggravation, recurrence, exacerbation, acceleration or deterioration of any pre existing injury or condition. The pre existing injury or condition does not need to be work related.

What if I made things worse in some way?

I’ve had clients think they aren’t able to pursue a common law claim because they, in some way, contributed to the injury or made things worse for themselves.

For example, they were told they needed to lift something a particular way by their employer and they ignored that.

In cases like this where the injured person has in some way made things worse for themselves, something called contributory negligence applies. What does this mean?

Well, if you take the example above – that person is somewhat responsible for the injury. But you could also say the employer was responsible if the worker was required to lift thousands of those boxes over the course of their shift without assistance.

In cases like this, any settlement sum you receive is reduced depending upon what can be negotiated by your lawyer, or what the court awards you. The law takes into account the negligence of each party, and this is usually reflected in any settlement money paid.

2 big things to keep in mind when pursuing a Common law claim:

1. Don’t hide a previous injury:

You need to be upfront and honest with your lawyer regarding any previous injuries you may have had – whether it’s to the same body part as the one injured at work or different.

If you are represented, your lawyer is able to deal with previous injuries if he or she knows about them. They can write to a doctor and ask the doctor to comment on the injuries you suffered during the motor vehicle accident and how your current restrictions and incapacity relates to those injuries, rather than your previous injuries.

One thing you can almost be certain about – at some point any previous injuries you’ve suffered are likely to be discovered by the other side. And it’s better if it has been dealt with by your own lawyer. I’ve seen seemingly strong cases lose simply because the client wasn’t upfront about about a previous injury.

Likewise, if you see a doctor for either your lawyer of the other side and they ask you what previous injuries you’ve had and you say none – and it’s later revealed that’s not the case, your case can be seriously damaged.

2. Be honest about the effect the injury has on you:

When you’re asked to explain the impact the injury has on you, to your lawyer or to doctors – both those doctors that treat you and those that you see for your lawyer or WorkCover, you need to be honest about the impact the injury has on you.

This means not ‘over egging the custard’ – as one barrister I worked with used to say. It’s not saying ‘I can’t walk anymore and can’t get out of bed’ if you can. By the same token, it also means, if you’re someone that doesn’t like to complain and keeps things to yourself – you need to be open with the lawyers and doctors and tell them how you’re impacted.

Your common law claim is dependent upon the impact your injuries have on you. But the other side will look for inconsistencies. Here’s an example:

You see your GP and he asks you whether because of your injury you still go for your daily walk. You tell your GP that you do go for a walk, but only walk for 10-20 minutes now, whereas before the injury you used to walk for over an hour. The GP notes this in your clinical notes and also writes a report to your lawyers saying that you only walk for a maximum of 20 minutes now.

The lawyers for WorkCover then engage a private investigator who sees you down at the local oval playing a game of football.

The common theme with the two points above is honesty. If you’re honest, your lawyer can help you. You will stand the best chance of winning your case. Your lawyer will be able to effectively deal with any of the issues in your case. If you hide things and they come out later without being dealt with by your lawyer rst, your case could be dead in the water.

Credit is so important in WorkCover cases. If you’re claiming compensation for a shoulder injury and you’re caught on surveillance lm lifting bags of groceries into your home – that will only hurt you if you’ve previously said to a doctor for example that you can’t lift anything. If you’re honest and say “I no longer lift as many bags of groceries as I used to, and I do two shops a week so I can break up the amount of groceries I need to lift at one time” – very different story.

Bottom line – be honest with your lawyer and doctors to give yourself the best chance of success.

How long do I have to lodge a common law claim for damages?

Have six years from the date of accident in which to bring a common-law claim for damages. In some instances, this period can be extended but as a general rule you should consider that you only have six years in which to bring a claim.

If my matter settles or I get judgement in my favour, how long until I receive the settlement monies?

Generally speaking, you will receive your settlement monies within four to six weeks after your matter results.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

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To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team