What is a Common Law Claim for Damages for work injury in Queensland?
When we talk about a Common Law Claim for damages, we are talking about what is more commonly recognised as a law suit - it is where you take legal action against your employer to recover damages for your work injuries and the loss and damage you have suffered because of those injuries.
When we talk about "damages", we are talking about the different heads of damage which an injured worker is entitled to receive by way of compensation for his injuries in a Common Law claim. These heads of damage include an amount of compensation for such things as:
- Pain and suffering and loss of amenities of life;
- Past and future loss of earning capacity;
- Past and future medical expenses;
- Loss of past and future superannuation payments;
- Interest on past out of pocket expenses, past loss of earnings and past superannuation;
- Gratuitous and paid care costs, both past and future.
For more information as to what type of Common Law damages an injured worker in Queensland may be entitled to and how the above varying heads of damage are calculated, just chat live with us, email or call and we'll be happy to discuss more.
Now unlike a workers' compensation claim, a Common Law Claim is not based on a "no-fault" scheme. In fact it is just the opposite. You will only have a Common Law Claim for damages if your injury has been caused or contributed to in some way by the negligence or wrongful act or omission of your employer or a co-worker. To succeed in such a claim, you have to prove that the employer, or one of its workers, has acted wrongfully or negligently and this has in some way resulted in your work injury occurring. The test is one of "reasonable care" - has the employer taken all reasonable steps available to it, to avoid a reasonably foreseeable risk of injury to the injured worker in the performance of his work duties.
In Queensland, there is a great deal of responsibility on an employer when it comes to workplace health and safety, and this responsibility cannot be delegated. The standards of safety required to be met are quite high and relate to such things as:
- Providing a safe workplace;
- Implementing and maintaining a safe system of work;
- Providing safe and proper plant and equipment;
- Providing adequate and proper instruction, training and supervision;
- Performing adequate and proper risk assessments of the workplace and work systems.
If your employer does not meet these workplace health and safety standards and you have sustained your injury as a result of this, then you will have a Common Law Claim for damages against your employer.
Will my employer have to pay for my workers' compensation claim or my claim for Common Law Damages for my work injury?
A lot of workers are concerned that when they make a claim for workers' compensation or Common Law Damages for a work injury, their employer will have to pay for their claim. This is actually not the case. Workcover Queensland is the insurer for employers in work injury claims in Queensland. As such, it is actually Workcover Queensland who handles these claims and meets any payments to be made in response to them.
There are however some very limited cases in Queensland where an employer is what we call a "self-insurer". This is where an employer has established its own workers' compensation scheme and meets any payments to injured workers they are obligated to pay under the Workers' Compensation & Rehabilitation Act 2003, itself. These self insurers have the same obligations in respect to workers' compensation claims and Common Law Damages claims for work injury as Workcover Queensland. There are only a handful of self-insurers in Queensland and they are restricted to the larger corporations operating in Queensland (e.g. Woolworths, The Toll Group, Arnotts etc).
How do I bring a Common Law Claim for Damages?
Under workers' compensation legislation in Queensland, if you have had a workers' compensation claim, and you wish to proceed with a Common Law claim for damages for your injury, you need to be very careful what steps you take when your workers' compensation claim is coming to an end. In Queensland, the majority of injured workers are required to make an election at the end of their workers' compensation claim as to whether they wish to proceed with a Common Law claim for damages in respect to their work injury. This occurs when the worker receives a Notice of Assessment of their work injuries from Workcover Queensland.
If you take the wrong step when responding to the Notice of Assessment, you could lose all rights to proceed with a Common Law claim for damages and miss out on significant compensation. It is extremely important that you contact The Personal Injury Lawyers for assistance prior to taking any steps in response to the Workcover Notice of Assessment so this does not happen to you.
Many workers think that, unless there has been a statutory workers' compensation claim for the injury, they cannot pursue a common law claim for damages. This is incorrect. A worker who has suffered injury in the course of their work is quite entitled to sue for damages for their work injury if it has been caused by the negligent act or omission of their employer, whether they have previously brought a workers' compensation claim for the injury or not.
The Workers' Compensation & Rehabilitation Act 2003 and associated Regulations govern the procedural requirements for bringing and pursuing a Common Law Claim for Damages, as well as the awards of damages in relation to work injury claims in Queensland. Navigating the provisions of the Workers' Compensation & Rehabilitation Act 2003 and Regulations can be quite complex and it is therefore important that you obtain legal advice with respect to what compensation entitlements you may have under such legislation. The Personal Injury Lawyers will be able to provide you with assistance in this area.
How will my Common Law Claim run and how long will it take?
As indicated above, if you decide to proceed with a Common Law claim, there are a number of steps that need to be undertaken under workers' compensation legislation before your claim can proceed into the Court realm. The purpose of these "pre-court" steps is so that you and WorkCover Queensland (or the self-insurer) can try to resolve your claim without the need to have your claim determined by a Court.
The "pre-court" steps commence with the service of a document, called a Notice of Claim for Damages, on WorkCover Queensland and the employer. After WorkCover has time to investigate your claim and the parties are able to gather information about the extent of your injuries, your claim proceeds to a settlement conference, where you have the opportunity to try to resolve your claim. If your claim does not settle at this conference, your claim then proceeds to litigation, which is commenced by the filing of a Claim and Statement of Claim in the appropriate Court.
Once you commence your claim in the Court, you do not immediately move to a trial. The Court process encourages parties to try to resolve claims through Alternate Dispute Resolution (ADR) prior to moving to a trial. If the parties agree, your claim may proceed to a Mediation prior to the matter being set down for trial. At the Mediation, an independant mediator will try to bring you and the workers' compensation insurer (WorkCover or the self-insurer) to a fair and reasonable settlement of your claim. There are also opportunities for the parties to try to resolve the claim through written offers being exchanged.
If you are unable to settle your claim at the Mediation, then your matter is set down for trial and proceeds to trial at the next available hearing date.
Depending on the status of your injuries at the time of commencing your Common Law claim and the liability and medical investigations that the parties need to pursue before they are ready to proceed to a settlement conference , it can take from approximately 6 to 12 months before the initial settlement conference takes place. If your claim does not settle at the settlement conference, then the Mediation will usually occur within six to nine months of the initial settlement conference. If the Mediation is unsuccessful, then your claim will usually be set down for hearing within approximately six to nine months of the Mediation, depending on the availability of hearing dates. Once the hearing takes place, it can take a number of months before a decision is handed down.