In Victoria, if you have been injured in the course of your employment, you may be entitled to more than WorkCover benefits. Workers who suffer a serious injury due to an employer’s negligence may be able to pursue additional compensation known as damages through a WorkCover common law claim.
Pursuing common law damages involves different legal requirements than a standard WorkCover claim. Arnold Dallas McPherson Injury Lawyers (ADM) assist injured workers throughout Victoria with both WorkCover no-fault claims and fault-based common law damages claims. We identify all available entitlements and pursue the maximum compensation available to you.
Unsure if you have a WorkCover common law claim or what’s involved in suing an employer? Call ADM at 1800 242 588 today for expert legal advice. We serve clients statewide from offices in Bendigo, Melbourne and communities across Victoria.
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What Is a WorkCover Common Law Claim?
Common law damages are a one-time lump sum payment that compensates you for the consequences of a serious injury. They are only available if you can prove that a work-related injury was caused by the negligence of another party — most commonly an employer.
Unlike statutory WorkCover benefits, common law compensation is not available simply because you were injured at work. You need to satisfy additional criteria in order to make a common law claim.
Not all workers will meet these criteria. However, if you do, a successful claim for WorkCover common law damages can provide significant additional financial resources for the long-term financial and personal impact of a workplace injury.
Can I Sue My Employer?
Yes, although the process differs from filing a standard civil lawsuit. If another party caused you to suffer an injury on the job, you may be able to pursue common law damages through the WorkCover scheme. This other party could be your employer, but sometimes other parties are involved in claims as well.
Rather than immediately commencing Court proceedings for your common law claim, you must first prove that you have suffered a ‘serious injury’. You will need to complete a Serious Injury Application and submit it to the Victorian WorkCover Authority. Preparing a serious injury application is very complex, and the information provided in applications can have long-term bearing on your claim, so it is important to seek legal advice before submitting it.
This is the first step in making a common law damages claim under the WorkCover legislation, the Workplace Injury Rehabilitation and Compensation Act 2013.
Who Is Eligible to Make a WorkCover Common Law Claim?
To be eligible for common law damages, you need to satisfy two key legal requirements:
1. You Have a ‘Serious Injury’
Victoria’s workers’ compensation legislation contains a statutory definition of ‘serious injury’. You will need to show that an injury you suffered in the course of your work resulted in any of the following:
- Permanent serious impairment or loss of a bodily function
- Permanent serious disfigurement
- Permanent severe mental or behavioural disturbance or disorder
- Loss of a foetus
A work-related injury resulting in permanent whole person impairment of 30% or more is also deemed a serious injury under the WorkCover scheme. There are various guides that doctors must use to assess this impairment.
Whether an injury is considered serious depends not only on the diagnosis but also on the consequences for the injured worker. These include pain and suffering, loss of enjoyment of life, any permanent physical or mental limitations and the impact of the injury on the worker’s earning capacity.
Establishing that you have a serious injury can be difficult, and you may need to attend multiple medical examinations so specialists can assess the long-term effects. A knowledgeable WorkCover claims lawyer can advise you through this process.
2. The Injury Was Caused by Someone Else’s Negligence
You must also prove that your workplace injury was caused by another party’s negligence. Negligence claims are generally brought against employers, but other parties may be liable as well.
Negligence can take many different forms, including but not limited to:
- Unsafe working conditions
- Failure to provide workers with necessary safety gear
- Inadequate training and supervision
- Poor maintenance of tools, equipment and machinery
- Insufficient security for the workplace or jobsite
- Requiring employees to work unsafe hours
- Excessive workloads that create a foreseeable risk of injury
- Failure to manage known workplace hazards
Any of the above circumstances, plus a host of others, can lead to injury and the potential for a WorkCover common law claim.
How Is a Serious Injury Determined?
Before you can pursue common law damages, WorkSafe or a self-insurer must determine whether your injury meets the statutory definition of a serious injury. The assessment is based on the medical evidence supporting your claim, including:
- Specialist reports
- Diagnostic imaging (X-rays, CT scans and MRIs)
- Hospital and treatment records
- Impairment assessments
This evidence helps to establish the nature, permanence and long-term effects of your injury, allowing WorkSafe to determine whether you meet the serious injury threshold. If your application is refused, you may be able to ask the County Court of Victoria to determine whether your injury satisfies the statutory definition.
An experienced WorkCover lawyer can ensure that your application is supported by strong evidence. They can also advise you on your rights and represent you throughout the dispute process if WorkSafe refuses your application.
Client Testimonials
At ADM, we are real people helping Victorians find justice. You don’t have to take our word for it; we have received hundreds of 5-star reviews from real clients who entrusted their legal matter to ADM. See for yourself what to expect from Arnold Dallas McPherson Injury Lawyers, both as solicitors and as human beings.
Michelle & R.
Kelsey and the team at ADM Bendigo were very understanding and caring in relation to our case. We were treated with respect and everything was done to get the best possible outcome under the circumstances. We would highly recommend.
Peter R.
My dealings with staff at ADMcP were at all times supportive, professional, and above all successful. They’re a great group and I recommend anyone to them for any industrial/workplace injury issues.
Milian T.
Thanks a lot Shaun and whole team, you done great job! Highly recommended this expert. All the best my friend!
How Do You Prove Negligence of an Employer or Other Party?
To succeed in a common law claim, you must prove several key elements of negligence. These include:
- Duty of care: The negligent party owed you a duty of care, or a responsibility to take reasonable steps to ensure your safety. Employers have such a duty towards their employees.
- Breach: A breach of the duty of care occurs when an employer or other party fails to take the necessary actions for an employee’s safety, such as maintaining a safe work environment, providing the appropriate safety equipment or removing known hazards.
- Causation: You must show that the employer or other party’s negligence caused or materially contributed to your injury.
- Damages: Finally, you must demonstrate that the injury resulted in compensable losses available under common law, both in relation to your pain and suffering and sometimes due to economic loss you suffer as a result of your injuries.
Negligence claims often require a combination of strong medical evidence, workplace records, photographs, witness statements and expert testimony. Your WorkCover lawyer can investigate the circumstances of your injury, collect the necessary evidence and prepare a strong common law claim on your behalf.
What Compensation Can You Claim?
The compensation sought through a WorkCover common law claim is different from the statutory benefits available under the WorkCover scheme. Common law damages compensate you for the long-term impact of serious workplace injuries. They are divided into two categories:
- Pain and suffering: This includes compensation for physical pain and limitations, mental and emotional anguish, loss of amenities and reduced enjoyment of life caused by a serious injury.
- Loss of earning capacity: This compensates you for the reduction or loss of your future ability to earn a living due to a serious work-related injury.
Common law damages are typically claimed in addition to your other WorkCover entitlements, such as weekly payments and medical and like expenses.
The amount of compensation available depends on factors such as the severity of your injury, its long-term impact on your life and employment and the evidence supporting your claim. An experienced WorkCover lawyer can evaluate your circumstances, provide an informed assessment of your claim’s potential value and pursue the maximum compensation you deserve.
How Long Do You Have to Make a Common Law Claim?
WorkCover claims for common law damages must generally be commenced within 6 years of the date of the injury. The limitation period may be extended if the injury was not discovered, or could not have been reasonably discovered, before the standard time limit expired.
There are some other circumstances that can be relied upon to extend this period; however, it is safest to ensure you begin your common law damages claim prior to the expiry of this 6-year period. If you are outside this period, you should seek legal advice immediately as a matter of urgency.
Your condition may need time to stabilise and additional medical evidence may need to be obtained before a common law claim can proceed. However, it is important not to delay seeking legal advice. A WorkCover lawyer can monitor the applicable time limits, gather the necessary evidence and ensure your claim is commenced within the required timeframe.
How a WorkCover Lawyer Can Help
The workers’ compensation process can be intimidating, especially if you have a serious injury or occupational disease. Many workers are unaware that they may be entitled to common law damages. Even those who are may have difficulty proving their injury is serious or establishing another party’s negligence.
Expert legal representation can help you overcome these challenges. An experienced WorkCover lawyer can evaluate your eligibility for common law damages, gather medical and workplace evidence, prepare the Application for Common Law Damages, negotiate with WorkSafe or the self-insurer and represent you if your claim proceeds to Court.
ADM Can Help with WorkCover Common Law Damages Claims
Lawyers at ADM are known for helping injured workers feel heard and supported. We provide honest legal guidance in straightforward language. This is essential for helping clients understand their legal rights and options, including the potential for common law compensation.
Get help with your WorkCover claim or find out if you are eligible for common law damages. Call ADM at 1800 242 588 today for a FREE consultation at one of more than a dozen offices throughout Victoria.
