Injured employees are entitled to claim weekly wages, medical & rehabilitation expenses, travelling expenses, lump sum payment and a lump sum compensation payout. Lump sum is payable in two forms:
- Permanent impairment payout for your physical injuries are at least 11% whole person impairment (WPI) or at least 15% for psychological injuries
- Common law payout for your physical or psychological injuries if either is at least 15% WPI.
To be successful in claiming a common law payout, an injured worker should prove:
- employer’s negligence in causing their injury and;
- injuries are already assessed as being at least 15% WPI
What is a common law negligence claim?
A common law negligence claim allows you to claim a lump sum payout to take into account your future earning capacity instead of staying on workers compensation benefits. Its made when your work-related injury is assessed as being at least 15% whole person impairment occurred due to your employer’s negligence.
The type of injury is not a condition of the common law negligence claims; so, you can make a common law negligence claim whether your injuries are psychological or physical.
Common law negligence claim settlements are determined according to past and future loss of earnings calculated until retirement age. Once your common law negligence claim resolves, all benefits that you are receiving cease; this includes weekly payments, and medical, hospital, transportation & rehabilitation expenses. If your injuries are not at least 21%WPI then your weekly benefits would cease at 5 years regardless of your capacity to work, making a common law negligence claim appealable to most people.
If you are about to settle a common law negligence claim, we highly recommend you speak to our workers compensation lawyers first to know your prospects of getting a higher settlement and/or the implications of your settlement . In some cases it may be better for you to stay on workers compensation benefits instead of claiming a payout. That is, of course, dependant on your unique circumstances and your WPI. It may be your first time claiming a payout but it is definitely not the insurance companies first time and as such we recommend you obtain legal advice at no out of pocket cost to you.
Am I entitled to make a common law negligence claim?
If your case fits the requirements below, you are more likely to be eligible to make a common law claim.
- Your work-related injury is assessed as being at least 15% whole person impairment, and
- Your work injury occurred because of your employer’s negligence, and
- You have received all statutory lump sum entitlements for permanent impairment to which you are entitled.
How can I prove that my employer was negligent?
In order to prove the negligence of another person or entity, you must be able to show that your employer:
- owed you a duty of care
- breached their duty of care and caused an injury
If you are not experienced in this area, you can reach our experienced common law lawyers and we will give you free legal advice in respect of your potential claim. Our common lawyers brief and hire experts depending on your injury and how it occurred who will provide an expert opinion as to how your injury could have been prevented to support your claim. That is important because each area of work has specific policies, procedures and requirements that must be adhered which if not amounts to negligence.
How can I make a common law negligence claim?
If you have been planning to make a common law claim in NSW, this is a how-to-make-a-claim guide:
As it’s mentioned above, firstly, you must meet the 15% whole person impairment threshold and make sure it is accepted by your insurer. If not your injuries can be referred to the Personal Injury Comission for a binding determination by an Approved Medical Specialist.
Then, you are required to provide the employer and their insurer with relevant details of the claim for them to assess your full entitlement to the claim.
The points that you need to cover in detail include:
- Date of the injury
- Your pre-existing medical condition and current impairment rate
- Your previous injury claims (if any)
- Your economic loss due to the injury
- Negligence of your employer with evidence from experts
- The amount you are claiming and
- Any supporting documentation and information regarding your claim.
What is the next step after making the claim?
If the insurer accepts liability, they will make an offer of common law negligence settlement.
Then, it will be your decision whether you want to accept or decline the offer.
If the insurer does not accept liability, as usual, the Defendant (the insurer/employer) will have 2 months from the date you provided particulars to make a determination. Upon making determination you would then prepare and serve a Pre-Filing Statement setting out all the particulars of your evidence along with the evidence itself and a intended statement of claim which also sets out all the particularce including negligence claim. The insurer/employer will then have 28 days to serve a Pre-Filing Defence setting out their defence as to liability, and their response and evidence that they will rely upon in defending their position.
You will then attend a Mediation at which point both you and the insurer and their lawyers can negotiate a settlement, which will depend on the strength of your claim and evidence provided as to negligence and your incapacity to work. Should you and the insurer fail to resolve the matter by negotiation and you want to continue with your common law negligence claim then you should obtain legal advice about your reasonable prospects of success in commencing court proceedings.
What if I don’t get an answer?
The Defendant (the insurer/employer) will have 2 months from the date you provided particulars to make a determination. Upon making determination you would then prepare and serve a Pre-Filing Statement setting out all the particulars of your evidence along with the evidence itself and a intended statement of claim which also sets out all the particularce including negligence claim. The insurer/employer will then have 28 days to serve a Pre-Filing Defence setting out their defence as to liability, and their response and evidence that they will rely upon in defending their position.
Do I need to go to court for my claim?
The short answer is, no but it depends!
At mediation, the mediator will assist the parties to reach a settlement through discussions however a mediator has no legal authority to make a decision or influence in either way. However, if you don’t agree with an insurer’s offer of settlement even after the mediation phase, then you will need to consider commencing court proceedings for your common law claim. You will haveopportunities to resolve the matter before court proceedings start however you need to first consider the strengths and weaknesses of your claim, what options you have other than commencing court proceedings and the benefits and risks associated with commencing court proceedings.
If you’re negotiating common law settlements with an insurer or considering doing so, it’s strongly recommended to get independent legal advice from our experienced personal injury lawyer to receive your full entitlements. Our lawyers will advise you on the strengths and weaknesses of your claim and the insurers defence to allow you to make a decision with peace of mind.
What are some examples of common law claims?
Workers from all industries can be entitled to make a common law claim as there is no limitation on a role, age or income amount. According to SafeWork Australia, body stressing, falls, trips and slips, being hit by moving objects, mental stress, hitting objects with a part of the body, vehicle collisions and chemical substances account for the highest number of work-related serious claims.
Reach our common law lawyers for a free claim check!
Our experienced personal injury lawyers have helped thousands of people in NSW on a No Win No Fee basis. We can help you get the best common law negligence settlement possible. Reach us for a free claim check!
Issa Rabaya
• Bachelor of Laws
• Graduate Diploma in Legal Practice
• Approved Legal Service Provider to the Work Cover Independent Review Office
• Member of the Law Society
