A common law workers’ compensation claim is a legal action that allows injured workers in Western Australia to seek damages for workplace injuries caused by employer negligence. Unlike statutory WorkCover claims, which provide no-fault compensation, common law claims require proving that your employer breached their duty of care, resulting in your injury.
Key distinction: WorkCover provides automatic compensation regardless of fault, covering medical expenses and partial income loss. Common law claims, governed by the Workers’ Compensation and Injury Management Act 1981 (WA), enable you to pursue additional damages including pain and suffering, economic losses, and future care costs, but only if you can establish negligence and meet specific impairment thresholds.
In Western Australia, pursuing a common law claim involves demonstrating that your employer failed to maintain a safe working environment, and this failure directly caused or contributed to your injury. The claim must satisfy minimum whole person impairment requirements before proceedings can commence. This legal pathway operates independently from WorkCover benefits, though you typically cannot pursue both simultaneously for the same injury.
Understanding which compensation avenue suits your circumstances requires professional legal assessment. This guide explains the eligibility criteria, claims process, and potential outcomes for common law workers’ compensation claims under Western Australian legislation, helping injured workers make informed decisions about their legal options.
Understanding the Core Differences
Initially, it’s vital to comprehend the primary distinctions between statutory WorkCover claims and common law workers’ compensation claims. Put simply, liability is not a consideration in statutory WorkCover claims. Therefore, identifying who was responsible for the accident resulting in your injury holds no significance. To a considerable extent, the precise manner in which the incident transpired is also not examined. As long as you can demonstrate that your injury arose during your employment and that you have sustained legitimate harm (as opposed to feigning or exaggerating your condition), you are entitled to receive compensation under the statutory framework.
Conversely, liability represents the crucial component in a common law workers’ compensation claim. This difference arises because you must demonstrate that another party bore responsibility and displayed negligence to obtain the applicable benefits. Specifically, you must establish that:
- an individual or organisation had a legal duty to protect your safety in the workplace; and
- this party failed to fulfil that duty;
- by performing or neglecting to perform specific actions;
- and this failure directly resulted in or substantially contributed to your injury;
- and you have experienced genuine harm.
Within legal frameworks, this principle is known as negligence. These components constitute the cornerstone of any viable common law claim in Western Australia.
Initiating a Common Law Workers’ Compensation Claim
If you believe another party’s negligence contributed to your workplace injury, your initial step should be consulting a qualified legal professional. At Soul Legal, our experienced team can promptly evaluate your circumstances and ascertain whether you possess a valid claim. Should your case have merit, we’ll commence proceedings by forwarding a formal document known as a Notice of Claim for Damages to both your employer and the relevant insurer. Within this document, we outline your account of events and present the legal arguments against the negligent party or parties involved.
Upon receiving this Notice, the insurer will engage its legal representatives. It’s crucial to understand that these solicitors simultaneously represent your employer’s interests. This means they will inform the employer of all developments and permit their involvement in the subsequent investigation process.
In accordance with Western Australia’s Workers’ Compensation and Injury Management Act 1981 (“the Act”), the insurer operates within specific timeframes. They have a designated period to complete their investigation, working in collaboration with the employer. Following their inquiry, they must formally admit or dispute the employer’s legal liability for your workplace injury.
Beyond directing the investigation, the insurer’s legal team may also arrange surveillance of your activities and request independent medical examinations to verify the legitimacy and severity of your injury. They will additionally attempt to calculate the potential compensation a court might award should the matter proceed to litigation.
The Subsequent Process
Following the completion of the investigation, all involved parties are legally required to make a genuine attempt at reaching a mutually acceptable settlement. This negotiation phase must occur prior to any court proceedings. In the majority of cases, all relevant stakeholders (the insurer, the injured employee, and their respective legal representatives) will arrange a settlement conference, alternatively referred to as a compulsory conference, to resolve the dispute. You should note that the insurer will likely extend an invitation to your employer as well. This occurs because any payments ultimately made may influence the employer’s insurance premium calculations in future periods.
When the circumstances are straightforward, negotiations may be facilitated through telephone conversations or email correspondence. This approach reduces both costs and complexity for all parties involved. Regardless of the settlement method employed, you (as the claimant) must consent to specific terms and conditions. Firstly, you must supply written confirmation that you will not initiate further legal proceedings against your employer or the insurer. You must also undertake to maintain the confidentiality of the settlement arrangement.
Regrettably, negotiations can extend over a considerable duration, occasionally lasting twelve months or longer. Should a settlement remain unachieved after this extended period, the matter will progress to court proceedings. Nevertheless, it may require an additional year before the actual trial commences. Understanding these timeframes helps set realistic expectations throughout the claims process.
Trial Requirements and Expectations
The duration of your trial will be determined by the specific circumstances of your case. Where minimal matters remain in contention, proceedings may conclude within several days. Conversely, if numerous disputed elements exist or intricate legal questions are involved, the trial will likely extend over a longer period.
Your legal representative will advise you regarding your obligations during this phase. Based on the particulars of the case, your employer may be compelled to provide testimony during the trial proceedings.
It’s important to recognise that receiving a judgment will not be immediate. Typically, it requires several weeks, and occasionally even months, before a judgment is delivered along with any determinations concerning legal costs.
Regarding costs, courts generally order one party to bear the opposing party’s legal expenses if the trial outcome falls short of what was proposed during pre-trial settlement discussions. Put differently, should your awarded judgment be lower than the amount your employer offered during preliminary negotiations, you will be responsible for covering their legal fees. Courts implement this principle to encourage parties to give serious consideration to reasonable settlement proposals before proceeding to trial. This cost consequence serves as a significant factor when evaluating whether to accept pre-trial offers.
Advantages of Pursuing a Common Law Claim
Only a qualified legal practitioner can assist you in determining whether to seek statutory WorkCover benefits or initiate a common law workers’ compensation claim. During this assessment, they will likely outline the distinctions in the compensation you may receive upon success. Statutory WorkCover benefits generally encompass:
- Coverage for all medical treatment and rehabilitation costs related to your workplace injury.
- Partial reimbursement for income lost due to your incapacity to work resulting from your injury.
- A lump sum payment addressing any permanent impairment arising from the incident (where applicable).
Alternatively, a successful common law settlement or court award typically provides compensation for both economic and non-economic damages. Instances of non-economic losses include pain and suffering, loss of enjoyment of life, and diminished capacity for personal relationships. Depending on whether you meet the requisite thresholds, it may also encompass awards for past or future care requirements. Understanding these differences is essential when evaluating which pathway aligns with your circumstances and long-term needs.
Conclusion
Workplace injuries can significantly impact your life, and understanding your compensation options is crucial for protecting your rights. Common law workers’ compensation claims offer an avenue to pursue comprehensive damages beyond standard WorkCover benefits, particularly when employer negligence has contributed to your injury. However, these claims involve complex legal requirements, strict impairment thresholds, and detailed procedural steps that demand professional guidance.
Before deciding which pathway to pursue, seeking expert legal advice ensures you understand the potential outcomes and challenges ahead. A qualified workers’ compensation lawyer can assess your circumstances, determine your eligibility for a common law claim, and guide you through the process from initial notification through to settlement or trial. Taking prompt action protects your legal rights and maximises your opportunity to secure fair compensation for your workplace injury under Western Australian law.
FAQs
Can I claim both WorkCover and common law compensation simultaneously?
You cannot typically pursue both claims at the same time for the same injury. However, you can receive WorkCover benefits while preparing your common law claim.
How long do I have to lodge a common law claim in WA?
Time limits apply under Western Australian legislation for commencing common law proceedings. Consulting a lawyer promptly after your injury ensures you don’t miss critical deadlines.
What is the minimum impairment threshold for common law claims?
Western Australian law requires you to meet a whole person impairment threshold. This assessment determines your eligibility to pursue a common law claim against your employer.
Will I have to go to court for my claim?
Most common law claims settle through negotiation without reaching trial. Court proceedings typically only occur when parties cannot reach an acceptable settlement agreement.
What happens if I lose my common law case at trial?
You may be required to pay your employer’s legal costs if awarded less than offered. Courts enforce this to encourage reasonable consideration of pre-trial settlement proposals.
Rebecca Sorgiovanni is the Director of Soul Legal, a trusted Perth-based injury compensation lawyer with over two decades of experience representing injured clients in complex litigation and tribunals across Western Australia.
