A common law claim involves an injured worker suing their employer for negligence but can only proceed after a statutory claim has been lodged and accepted by WorkCover Queensland (or the relevant self-insurer), and a Notice of Assessment has been issued. Common law claims are substantially different to statutory claims in that injured workers require a formal medical assessment of their injury, and employer negligence needs to be established. Where employer negligence can be established, compensation figures tend to be much more significant than those provided by statutory benefits.
Establishing employer negligence (or liability) is critical to making a common law claim for damages as you are not entitled to damages where your employer was not negligent. In order to successfully establish employer negligence, you must satisfy the following elements:
- That your employer owed you a duty of care;
- That your employer breached that duty of care; and
- That the injury you suffered was a result of the breach of duty.
An employer’s duty of care generally extends to ensuring, so far as is reasonably practicable, that the health and safety of their employees (including contractors, sub-contractors, volunteers and labour hire personnel) is not put at risk from work carried out as part of the conduct of the business. This duty is established under the Work Health and Safety Act 2011 (Qld). Once negligence is established, common law damages may include compensation for economic loss, pain and suffering, legal costs and medical and hospital expenses.
Seeing a common law claim for damages through to culmination is a tedious and highly legal process. To a person with no experience in how the process operates, it may at times seem overwhelming. The usual stumbling blocks for people unaware include strict time limitations, gathering appropriate evidence, and accepting offers from the party at fault which are well below the true entitlement to compensation. Seeking the advice of a lawyer is the best way to avoid these common pitfalls.