WorkCover common law claims

If you have sustained an injury at work that becomes permanent and stable, and the injury occurred in negligent circumstances, you may be able to pursue a common law claim entitlement to pain and suffering and economic loss damages. Common law claims are in addition to your statutory no-fault entitlements under the Victorian WorkCover scheme.

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Who can lodge a common law claim in Victoria?

To be eligible for common law compensation, you need to show the following:

• that your injury is a serious injury;
• the employer or a third party was negligent in causing this injury; and
• it is this negligence that caused your injury.

To commence common law proceedings, the Workplace Injury Rehabilitation and Compensation Act 2013 requires that you lodge a serious injury application with the Victorian WorkCover Authority (VWA). The serious injury application must state whether your claim is for pain and suffering damages only or both pain and suffering and economic loss.

To bring a claim for economic loss, you need to prove that you do not have the capacity to earn more than 60% of your pre-injury earnings.

Serious injury definition

A serious injury is defined as a serious impairment of a body part or a body function. There are many years of case law that provide examples of what the courts consider a serious injury.

What happens once I’ve lodged my common law claim?

The VWA’s solicitors have 120 days to accept or decline your serious injury application. If your application is rejected, an Originating Motion will be issued in the court to have a judge determine if you meet the serious injury threshold.

If the judge finds that you have a serious injury or, if your application is initially accepted, a conference will be held with the VWA’s solicitors to see if the case can be resolved. This is known as a section 333 conference. Cases often do not resolve at these conferences as the parties cannot agree on a monetary amount to resolve the matter, or the question of negligence is disputed between the parties.

If the case is unable to be resolved at this stage, then a formal offer and counteroffer need to be made by the parties. As these offers have significant cost implications and must be carefully considered, Guardian Injury Law will provide you with clear advice so that you can make an informed decision.

If the offers are not accepted, then proceedings must be issued in either the County Court or Supreme Court depending on the quantum of the claim, to resolve the matter.

Depending on the complexity of your case, it is important that you are aware that common law claims can be very lengthy and involved. Guardian Injury Law will be every step of the way providing clear, straight forward advice.

How will Guardian Injury Law help you?

It is important to remember that for a common law claim to be successful, you need to prove that your injury occurred in negligent circumstances. Statements will need to be taken from lay witnesses and often an expert opinion will be obtained with regards to the circumstances of the injury.

You also need to achieve ‘serious injury’ test for your claim to proceed.

Using the narrative test, we tell your story in affidavit form to show how your injury occurred and the impact your injury has had upon your quality of life including activities of daily living, sleep, relationships, employment and hobbies. Medical opinion, both from treating doctors and independent medico-legal doctors (that Guardian Injury Law arrange for you), is also used to show that you meet the test.

Guardian Injury Law has significant experience and expertise in bringing successful WorkCover common law claims and achieving outstanding results that change our clients lives. We will provide clear legal advice, in plain English, to you every step of the way so that you can make informed decisions to achieve the compensation you are entitled to.