Last updated 16 August 2016 This chapter is currently under review.
A common law claim for damages is a legal claim against a worker’s employer seeking damages (money) for an injury sustained by the worker in circumstances where the worker can establish that the employer was negligent or in breach of an express or implied term of the worker’s contract of employment, and such negligence or breach caused the injury (see The elements of a negligence action).
Damages are usually paid pursuant to a contract of insurance by WorkCover Queensland, and not the employer, although the employer is named in the proceedings, and any allegations of negligence or breach of contract are made against the employer.
Common law damages
Common law damages may include monetary compensation for:
- pain, suffering and loss of enjoyment of life
- past and future loss of income and superannuation contributions
- past and future special expenses (including medical, allied health/rehabilitation and pharmaceutical expenses, travel expenses, care, assistance, aids and equipment).
In very limited circumstances, damages can be awarded for gratuitous services provided to the worker.
There is also some entitlement to interest on past special expenses and actual past economic loss.
Damages must be reduced by the amount of compensation already paid by WorkCover. These amounts should be included in the claim so the worker is not out of pocket for these amounts (s 270 Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act)). When negotiating with WorkCover in common law claims, offers of settlement are invariably made on the basis that WorkCover will not require compensation to be repaid. If the matter proceeds to judgment, the court will order the compensation to be repaid to WorkCover out of the award.
WorkCover is entitled to have the claimant independently medically examined, provided their request is not unreasonable or unnecessarily repetitious (s 282 WCR Act).
When are damages payable?
An employer is under a duty to ensure that reasonable care is taken for the safety of employees.
The circumstances of each employee must be considered when assessing the extent of the care that ought to have been taken by an employer towards the employee.
Generally, an employer has an obligation to reasonably:
- provide and maintain safe plant and equipment
- select competent and skilled employees
- provide a safe system of work.
As a duty of care is owed personally to each employee, the extent will depend on the nature of the work being performed by the employee and the employee’s own skill, expertise and qualification for the job. In each case it is a question of fact whether the employer has taken reasonable care to protect the employee from work accidents. Employers will not be liable for any accidents where they have done everything reasonably necessary to maximise the safety of their employees. Legal advice should be obtained in respect to whether a worker has any prospects of success in a common law claim.
Negligence of a fellow employee
A worker may also make a claim for damages when injured as a result of the negligence of a fellow employee, rather than the negligence of the employer.
Whilst the fellow employee may be found personally liable, they may be covered for their negligent conduct by their employer’s contract of insurance if it can be established that the employer is vicariously liable for the fellow employee’s negligence.
Vicarious liability will be established if it can be shown that the fellow employee was acting within the scope of their employment at the time. An employer may not be held vicariously liable for acts of negligence by employees where their actions constitute serious and wilful misconduct or are outside the scope of employment.
If a court decides that a worker contributed to the injury by their own negligence, the court can reduce the damages awarded to the worker or find that the worker’s contribution was so great that it defeats the claim entirely (s 305G WCR Act).
Examples of contributory negligence are detailed in s 305H of the WCR Act and may exist where a worker has:
- failed to comply with instructions
- failed to wear protective clothing and equipment provided by the employer
- failed to attend safety courses
- been adversely affected by drugs or alcohol taken intentionally.
It is a matter for a court to decide the amount by which damages are to be reduced on account of contributory negligence.
Generally, a worker cannot commence a common law claim unless and until the worker has received a Notice of Assessment for the injury in respect to at least one of the injuries sustained (s 237 WCR Act).
Save for an exception depending on the date of injury, a worker can still pursue a claim for common law damages even if the impairment detailed in the Notice of Assessment is 0%.
There is, however, a strict three-year time limit to claim damages. That is, the worker must commence legal proceedings, or otherwise take one of the very limited steps available to protect the worker’s right to commence legal proceedings, within three years from the date of the injury or when the worker first knew of the injury. Should this not be done within three years, then the worker’s right to claim damages will almost certainly be statute barred.
It is strongly recommended that legal advice be sought as soon as possible as several procedural steps must be completed before commencing legal proceedings.
Although extremely limited, there are some circumstances where an extension of this time limit may be obtained (see Accidents and Injury – Time Limits for Bringing Actions).
Prior to commencing legal proceedings, a number of procedural steps must be undertaken. These include the lodgement of a Notice of Claim for Damages form with WorkCover (s 275 WCR Act) and participating in a compulsory settlement conference (s 289 WCR Act).
If a resolution is not reached, written final offers must be exchanged at the conclusion of the compulsory settlement conference. Various costs consequences flow from the offers made at the conclusion of the compulsory conference.
This area of law is complex and legal advice should be obtained to ensure the worker does not risk losing their right to pursue a common law claim.
If WorkCover admits liability for the worker’s damages, it must, if asked by a worker, ensure that reasonable and appropriate rehabilitation is made available (s 268 WCR Act). Although it is not obliged to agree, a worker can ask WorkCover to make rehabilitation available prior to an admission of liability or if there is a denial of liability.
A worker is also under an obligation to mitigate their loss, which can include participating in rehabilitation and/or participating in a return to work program (s 267 WCR Act).
It is common practice for WorkCover to engage investigators to check on claimants. Provided the worker is honest about what they can and cannot do and what work they are doing, this should not be of any detriment to the worker’s claim.
The employer does not have the right to terminate a worker’s employment on the grounds that they have applied for compensation or pursued a common law claim. Employers may, however, be entitled to terminate a worker’s employment for other reasons. As strict time limits apply, urgent legal advice should be sought should an employer terminate a worker’s employment.