How long does a common law claim take?

How long a common law claim takes depends upon how contested the claim is by the other side. A common law claim that is not contested may resolve within the first 120 days after a serious injury application is lodged, for example.

Matters that are contested – either in relation to the issue of injury, negligence or some other issue, can result in a common law claim taking longer to resolve. In a minority of matters, common law claims can take years to resolve.

There are many things to consider however, which this page will explore in further detail.

How long does it take to prepare a common law claim?

The first step in the WorkCover common law process is for a serious injury application to be prepared and lodged.

A serious injury application is something that in most instances is prepared and lodged by a lawyer on behalf of an injured worker.

The application is made up of, typically:

• Affidavit material from yourself and others, painting a before and after picture as to how the injury has impacted your life
• Medical material from your treating doctors and health providers
• Medical material from doctors who have assessed you but not treated you – usually arranged by your lawyers.
• Income material (eg: tax returns).

How long it takes to prepare a serious injury application depends upon a number of factors such as what material is required, availability of doctors, availability of barristers (typically barristers will draft your affidavit) as well as the time taken for medical and other providers to provide any requested material.

The other thing impacting preparation time is stability. Before you can proceed with a serious injury application your injury must be stable. This means that it is not getting any better, not getting any worse.

Preparation of your serious injury application and common law claim will likely commence prior to your injury being stable, but it likely will not be finalised until your injury has stable.

How long does a common law claim take once a serious injury application has been lodged?

Once a serious injury application has been lodged, lawyers will be appointed by WorkSafe to review the application and make a decision in relation to the serious injury application and common law claim.

They have 120 days to make a decision in relation to the serious injury aspect of the matter.

That decision is either yes, or no, to the question of whether you have a serious injury or not.

In some instances, what WorkCover’s lawyers will do is if during this 120 days they believe you stand a reasonable prospect of success in your common law claim, they may contact your lawyers and enquire as to whether you would be interested in negotiating settlement of the matter.

This can happen at any point during the 120 days, but will usually happen closer to the 120 day mark than day one.

As such, many matters will resolve during this 120 day period.

Additionally, many matters will resolve shortly after the 120 day period.

If during the 120 day period the lawyers for WorkSafe agree that you have a serious injury and provide you with a serious injury certificate, what then happens is the parties must go to a settlement conference.

This usually occurs a few weeks after you’ve been granted the serious injury certificate. When it happens depends upon the availability of the parties.

At the settlement conference, the parties will negotiate the matter, and many matters will resolve at these conferences.

If the matter doesn’t resolve at this conference, then the parties are required to make formal written offers to each other within specific timeframes.

These offers are called statutory offers, and statuary counteroffers.

And a number of matters will resolve by way of acceptance of statutory offers or statuary counter offers.

What can also happen is that the parties continue to negotiate around the time the statutory offers and statutory counter offers are made and matters can resolve that way as well.

In relation to a serious injury application being made and the other side, having 120 days to make a decision in relation to the serious injury application:

If WorkCover’s lawyers opine that you don’t have a serious injury, then, in order to proceed with the matter, you would need to issue what’s called an originating motion. This sets your WorkCover matter down for hearing in the County Court. The issue to be determined is whether you have a serious injury or not.

You will then be required to wait for your matter to be listed.

Wait times for a WorkCover County Court originating motion hearing in Melbourne can differ to those in regional areas.

Generally WorkCover serious injury matters are reached quicker in Melbourne than they are in regional areas.

In regional areas they have what are called WorkCover Court circuits. So for example a regional location may only have 3 or 4 circuits a year and you’ll need to wait for your WorkCover matter to be allocated into one of those circuits.

However, to give you a general idea you can expect a wait of about six months (sometimes a little longer, sometimes a little shorter) from when your lawyers have issued and served an originating motion.

Assuming that you succeed in the originating motion (you may be required to wait several months for a decision to be made) and you obtain a serious injury certificate, the parties are then required to go to the settlement conference referred to above.

Usually the settlement conference will occur within a few weeks after you’ve obtained the serious injury certificate.

What can also happen is that your matter may settle prior to it being heard, or even after the matter has stated by way of negotiation between the parties.

It may in some instances take longer for a common law claim to resolve

Sometimes what can happen is the parties just can’t reach an agreement to resolve a matter.

They may have very different views on aspects of a matter.

On the issue of negligence, contribution, injury and ultimately, how much compensation should be paid, for example.

If this is the case then what may need to happen is that a writ may need to be issued and served. This sets your WorkCover matter down for hearing in over the County Court or Supreme Court.

Again, if this occurs in your matter you can expect this to add about six months, sometimes longer.

However the issues in dispute can be complex and your lawyers may need more time to prepare your case. For example they may need an expert witness or more medical material etc.

So it can take longer than six months for your matter to be reached, but again, the matter can be negotiated between the parties any time prior to the hearing.

Conclusion

How long a common law claim takes depends upon a number of factors.

A common law claim is initiated by the lodgement of a serious injury application. It’s difficult to say exactly how long a serious injury application takes to prepare, but a rough guide is 3 – 6 months. It depends on what material is required and how long it takes to obtain that material.

Some matters can resolve during the 120 day period that WorkCover’s lawyers have to make a decision in relation of the serious injury application.

Some matters may resolve just after the 120 day period either by way of an agreement being reached at a settlement conference or by way of further negotiations or by acceptance of a statutory offer or a statutory counter offer.

If you do not obtain a serious injury certificate initially (ie: during the 120 day period), then the issue of serious injury will need to be determined by a judge which can add roughly another six or so months. If you succeed and obtain a serious injury certificate then the matter

Sometimes matters resolve prior to or during this hearing however.

If the parties can’t reach an agreement to resolve the matter then ultimately you may need to have your WorkCover matter heard in the County court or Supreme Court, which can add another six months sometimes more.