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What is a WorkCover Common law claim?
A WorkCover common law claim is a legal action that an injured worker can pursue against their employer if they’ve suffered a serious injury due to the employer’s negligence. This claim is separate from the standard WorkCover benefits and can potentially result in a larger lump sum payment.
At what stage can you pursue a common law claim?
You can pursue a common law claim after you’ve received WorkCover benefits and your injury has stabilised. Typically, this is around 18 months after your injury, but it can vary depending on your specific circumstances.
What are the elements needed to succeed in a common law claim?
To succeed in a common law claim, you need to prove two key elements:
- You have suffered a “serious injury”
- Your employer was negligent, and this negligence caused your injury
What is classed as a serious injury?
A serious injury in Victoria is defined as:
- A permanent impairment of 30% or more
- A permanent serious disfigurement
- A permanent severe mental or behavioral disturbance or disorder
- Loss of a fetus
Alternatively, you can meet the serious injury threshold through the “narrative test” if your injury significantly impacts your life.
What is a ‘serious injury certificate’?
A serious injury certificate is a legal document that confirms your injury meets the threshold for a common law claim. It’s a crucial step in the process of pursuing damages.
How do you obtain a serious injury certificate?
To obtain a serious injury certificate, you need to submit a detailed application to WorkSafe Victoria. This application includes medical evidence, details of how your injury affects your life, and other supporting documentation.
The narrative test
The narrative test is used when your injury doesn’t meet the 30% impairment threshold. It involves demonstrating that your injury has severe consequences on your life, work, and daily activities.
The 30% deemed test
If you have a whole person impairment of 30% or more, you’re automatically deemed to have a serious injury and don’t need to go through the narrative test.
What is the process for obtaining a serious injury certificate?
- Prepare your application with help from your lawyer
- Submit the application to WorkSafe Victoria
- WorkSafe reviews your application (they have 120 days to make a decision)
- If approved, you receive your certificate
- If rejected, you can appeal the decision in court
What happens if the serious injury application is granted?
If your application is granted, you can proceed with your common law claim against your employer.
What happens if the application is rejected?
If your application is rejected, you can appeal the decision in the County Court. This involves a hearing where a judge will determine if you meet the serious injury threshold.
What can I expect if my matter runs in court regarding ‘serious injury’?
If your case goes to court, you can expect:
- To give evidence about how your injury affects your life
- Your medical experts may be called to testify
- Your employer’s lawyers may cross-examine you and your witnesses
- A judge will make a decision based on all the evidence presented
What happens if I win?
If you win your serious injury application in court, you’ll be granted a serious injury certificate and can proceed with your common law claim.
What happens if I lose?
If you lose, you won’t be able to pursue a common law claim. However, you’ll still be entitled to your existing WorkCover benefits.
Negligence
To prove negligence, you need to show that:
- Your employer owed you a duty of care
- They breached this duty
- This breach caused your injury
What can I be compensated for under a common law claim?
Under a common law claim, you can be compensated for:
- Pain and suffering: This covers physical pain, emotional distress, loss of enjoyment of life, and other non-economic impacts of your injury.
- Loss of earnings: This includes past lost wages and future loss of earning capacity.
How long do you have to lodge a common law claim?
In Victoria, you generally have six years from the date of your injury to lodge a common law claim. However, it’s crucial to start the process as soon as possible to ensure you don’t miss any deadlines.
Pursuing a WorkCover common law claim can be complex, but it can also result in significant compensation if successful. It’s crucial to seek expert legal advice to navigate this process effectively and ensure the best possible outcome for your case.
