Employer’s Negligence / Fault
Employers owe a duty of care to ensure that reasonable care is taken for the safety of employees. Generally, employers have an obligation to provide:
- a safe place to work;
- a safe system of work;
- reasonable and appropriate work duties;
- equipment that is in good working order;
- adequate training and instructions.
If your injuries arose because of your employer not providing a safe work environment, you may consider a common law claim seeking damages (compensation). Whilst negligence is alleged against your employer, it is WorkCover Queensland (or the equivalent self-insurer) that manages the claim and any damages are paid by WorkCover, not the employer.
An injured worker may also make a common law claim when they are injured because of the negligence of a co-worker, so long as their co-worker’s actions were within the scope of their employment.
Damages / Compensation
Common law damages may include monetary compensation for:
- Pain and suffering;
- Past and future expenses including medical, pharmaceutical, travel, rehabilitation;
- Past and future loss of income or loss of earning capacity (what you would have earned but for the injuries) and any loss of superannuation;
- In some limited circumstances, past and future care and assistance.
Common law claims can therefore result in you receiving hundreds of thousands in damages (ie compensation).
When You Can Commence a Common Law Claim
At the conclusion of your WorkCover Statutory Claim (ie your “compo” claim), WorkCover will arrange an assessment with a medical practitioner or the Medical Assessment Tribunal to assess any permanent impairment you may have. Based on this assessment, WorkCover will then offer you a lump sum amount in a Notice of Assessment (NOA). The offer is based on the percentage impairment calculated by the doctor(s).
If you believe that the degree of permanent impairment that has been assessed is too low, you can ask for your physical injuries to be re-assessed by the Medical Assessment Tribunal or a doctor of your own choosing, so long as they are GEPI qualified and have similar (or better) qualifications to the original doctor who assessed those injuries. Any permanent impairment for psychiatric injuries will have already been assessed by the Medical Assessment Tribunal and cannot therefore be challenged.
If you do ask for your physical injuries to be re-assessed, then the original NOA will be withdrawn and a fresh NOA will be issued once your injuries have been re-assessed.
Upon receipt of the (final) NOA from WorkCover, you should carefully review it and then obtain legal advice in relation to whether you have any prospects of success in a common law claim. When you receive the (final) NOA, you will have three options:
- Accept the offer;
- Reject the offer; or
- Defer the offer to make a decision later.
Your options will also depend on what your percentage of impairment was assessed at.
If your percentage impairment is less than 20% and you accept the NOA offer, you will be precluded from bringing a common law claim. It is therefore important that you DO NOT accept any lump sum offer without first seeking legal advice.
Your legal representative will provide you with advice to help you decide whether you can and should proceed with a common law or whether you should simply accept the NOA offer. By proceeding to common law, lodgement of the Notice of Claim for Damages form will reject the NOA offer.
You are able to defer the decision on the lump sum offer and then decide at a later stage if you want to proceed with a common law claim or accept the NOA offer. Bear in mind you only have three (3) years from the date of your incident to pursue a common law claim. If you have not resolved your common law claim within this timeframe or taken the relevant steps to protect your limitation period, then you will be statute barred, meaning you will forever lose your right to bring a common law claim for damages.
If your percentage is 20% or above for your physical injuries or your psychological injuries, you will be able to accept the NOA lump sum offer for the injury that meets the 20% or more threshold and also proceed with a common law claim. Please note that you cannot add together the percentages for the physical injury and psychiatric injury to arrive at 20% or more. They must be treated separately.
Commencement of Common Law Claim
Once WorkCover have issued the NOA, a Notice of Claim for Damages form can be lodged to commence your common law claim. This form contains all the information in relation to you, the injuries, the incident, the negligence, the treatment and the ongoing impact from the injuries. This form must be lodged within three years from the date of your incident, unless an extension under the legislation has been sought.
