Common law claims

The option of pursuing common law damages against an employer is not open to all workers with a workers compensation claim. There are certain legislative provisions that need to be met in order to pursue a claim for damages at common law.

Permanent impairment

If you choose to pursue a claim for common law damages against your employer, you must have a permanent whole of person impairment (PWPI) of at least 15%.

Condition not stabilised

If your condition has not stabilised sufficiently for the permanent impairment evaluation to be made, there are certain circumstances in which a ‘special evaluation’ of your degree of impairment may still be made.  These circumstances include where 18 months has passed since you made the compensation claim on your employer.

Employer at fault

If you meet eligibility requirements and can prove that your workplace injury was caused by negligence committed by your employer you can pursue a claim for damages outside of the statutory workers compensation system.

What happens next?

If you are eligible to seek common law damages, you must advise of your intention to do so by lodging a Common Law Election form with the Director, Conciliation. There may be statutory limitation periods that affect when legal proceedings need to commence, such as those stipulated in the Limitation Act 2005.

An election may affect your workers compensation entitlements and, once made, is irreversible. It is strongly recommended that you seek independent legal advice before making a decision.

Workers with a permanent whole of person impairment of at least 15% and less than 25%

There is a cap on common law damages if you have a permanent whole of person impairment of at least 15% and less than 25% – the amount of damages is determined by the severity of the injury or injuries. If you elect to pursue a common law claim against your employer, you are subject to a step-down in income compensation payments and your entitlements to any medical and health expenses compensation, miscellaneous expenses compensation or workplace rehabilitation expenses cease.  Assuming you have sufficient funds remaining in the income compensation general limit amount for your claim, income compensation payments will reduce, from the date your election is registered (registration day), as follows: for the first three months after registration day, you will receive 70% of the amount of income compensation payments to which you would otherwise have been entitled for the second three months after registration day, you will receive 50% cent of the amount of income compensation payments to which you would otherwise have been entitled income compensation payments cease after six months.

Workers with a permanent whole of person impairment of at least 25%

If you have a permanent whole of person impairment of at least 25% you will continue to receive benefits in accordance with the provisions of the Act, and there is no cap on the amount of damages you can receive.