How will my Common Law Claim run and how long will it take?
Before you may make a claim for common law damages, there are a number of steps that need to be taken.
Firstly, if you have previously had a workers' compensation claim in relation to your work injury, unless the 3 year time period for bringing your claim at Common Law is looming, you will need for your workers' compensation claim to finalise before you can proceed with your Common Law Claim. Once your Common Law claim is coming to an end, you can ask Workcover (or the workers' compensation self-insurer) to issue a Notice of Assessment setting out all of your work injuries and the permanent impairment you have sustained for each injury.
When the Notice of Assessment issues, it will contain a Lump Sum Offer, being the statutory compensation which applies to your work injuries under workers' compensation Regulations (it accords monetary payments for certain injuries). If in the Notice of Assessment, it is stipulated that your work injuries have a total work related impairment of less than 20%, you cannot take this Lump Sum Offer and sue your employer. You have to make the choice to either take the Lump Sum Offer or sue for Common Law Damages.
Once you make this choice, you cannot change your mind later on. It is an irrevocable election. It is therefore very important that you do not respond to the Notice of Assessment or any Lump Sum Offer without speaking to one of our personal injury specialists.
If your total work related impairment stipulated in the Notice of Assessment is 20% or more, then you can take the offer and still sue your employer for Common Law Damages. Once your Notice of Assessment has issued and you have made the choice to sue your employer for Common Law Damages, then we can start your Common Law Claim. The following steps are then necessary:
We must submit a detailed Notice of Claim to WorkCover Queensland and your employer. This notifies WorkCover Queensland of your intention to sue your employer for negligence and recover damages. The Notice of Claim must contain an Offer of Settlement;
WorkCover Queensland must respond to your Notice of Claim within fourteen (14) days. That response will state whether WorkCover Queensland is satisfied that all the information required to be disclosed in the Notice of Claim has been appropriately given and, if not, will state the areas which require remedying;
The parties must then endeavour to resolve your claim. WorkCover Queensland must give you a written notice within six (6) months after receiving your Notice of Claim stating whether liability is admitted or denied and whether it alleges any contributory negligence on your part and making an Offer to Settle your claim, if possible within that 6 month period WorkCover Queensland must undertake the necessary investigations into your claim to provide this response;
Whilst WorkCover Queensland is determining liability we obtain the supporting evidence you need to prove your case;
- If the matter does not settle, then a Compulsory Conference must be organised within three (3) months of WorkCover Queensland’s response. The purpose of the conference is, of course, to attempt to settle your claim without going to trial;
- If your claim is still not settled at the Compulsory Conference, then each party must thereafter make a written final Offer to Settle your claim and that offer must remain open for fourteen (14) days;
- If the offers are not accepted, then and only then may Court proceedings be commenced and they must be commenced within sixty (60) days of the Compulsory Conference.
If your claim does not resolve at the Compulsory Conference and Court proceedings are issued, your claim will then be governed by the Rules of Court (Uniform Civil Procedure Rules 1999).
Your claim is commenced in the Court via filing and service of a document which is called a “Claim and Statement of Claim”. WorkCover Queensland responds to your claim by filing and serving its Defence to your proceedings. This is due within twenty-eight (28) days of service upon it of the Claim and Statement of Claim.
The parties are then required to exchange a number of documents which deal with the evidence each party intends to produce and rely upon in the proceedings to support their respective cases. Once this document exchange is completed, the parties usually agree to attend and participate in another settlement conference by way of Mediation.
The Mediation is a settlement conference between the parties overseen by a Mediator. The Mediator is an independent party to the proceedings and tries to bring the parties together to reach a mutually agreeable settlement of the claim. Mediation usually takes place approximately six (6) months after the Compulsory Conference. If the claim cannot be resolved at Mediation, then it is prepared for Trial and a Trial date is set down in the Court for the Court to determine the outcome of the case.
Most personal injury claims in Queensland resolve within 12 to 18 months of commencement, however if the matter proceeds to a trial, then it can take 2 to 3 years, or more, to obtain a resolution. Since introduction of the legislative schemes governing personal injury claims in Queensland however, injury claims rarely go to trial with the majority of cases settling at settlement conference or mediation prior to trial.
Note: If your 3 year limitation period for bringing your Common Law Claim is looming and you wish to pursue a Common Law Claim, you do not have to wait for your workers' compensation claim to finalise or a Notice of Assessment to issue before you start off your Common Law Claim as set out above. There are special provisions that apply which allow us to start off your Claim urgently where this there 3 year limitation period is close to expiry.