Pursuing a common law damages claim arising from a workplace injury in Australia
In most Australian jurisdictions, an injured worker may pursue a common law claim for negligence against the employer in addition to statutory workers' compensation benefits. However, each state imposes thresholds, procedural prerequisites, and election requirements that must be satisfied before the common law claim can proceed.
This is an 8-step workflow for pursuing a common law damages claim for negligence arising from a workplace injury, running alongside or after the statutory workers' compensation claim under the applicable state legislation.
Before you start
- An accepted or lodged statutory workers' compensation claim
- Medical evidence of the injury, treatment, and prognosis
- Evidence of the employer's negligence (incident reports, witness statements)
- The applicable state workers' compensation Act identified
The workflow
Confirm the statutory threshold is met
Each jurisdiction imposes a threshold before a common law claim can proceed. For example, in NSW the worker must have at least 15% whole person impairment (WPI) assessed under the Workers Compensation Act 1987 s 151H. In Victoria, the threshold is a "serious injury" under the Workplace Injury Rehabilitation and Compensation Act 2013.
Obtain an impairment assessment
Arrange for an approved medical specialist to assess the worker's whole person impairment using the prescribed guidelines (e.g. AMA Guides, SIRA guidelines in NSW). This assessment determines whether the threshold is met and informs the quantum of damages.
Establish negligence
Gather evidence to establish the employer's breach of duty of care: incident and investigation reports, workplace health and safety records, risk assessments, witness statements, and expert opinions on the standard of care expected.
Comply with pre-filing requirements
Satisfy the jurisdiction's pre-filing requirements. In NSW, serve a pre-filing statement under the Workers Compensation Act. In Victoria, apply for a serious injury certificate from the Magistrates' Court or obtain the insurer's consent. Each state has different procedural steps.
Quantify the damages claim
Prepare heads of damages: past and future economic loss, past and future treatment expenses, past and future domestic assistance, general damages (pain and suffering), and any Fox v Wood component. Obtain actuarial evidence for future loss calculations.
File the statement of claim
File the statement of claim in the appropriate court (e.g. District Court or Supreme Court depending on the quantum). Plead the duty of care, breach, causation, and loss. Serve on the employer and its insurer.
Participate in compulsory settlement processes
Most jurisdictions require mandatory mediation or informal settlement conferences before a hearing. In NSW, attend a mediation under the court rules. In Victoria, attend a judicial mediation or conference. Prepare a detailed settlement position with supporting evidence.
Proceed to hearing or settle
If settlement is not reached, prepare for a contested hearing with all lay and expert evidence. If a settlement is reached, ensure the deed of release properly addresses the interaction between the common law damages and ongoing statutory benefits, including any repayment obligations to the insurer.
What you will have at the end
A resolved common law damages claim — by settlement or judgment — with the interaction between statutory benefits and common law damages properly addressed.
Common issues
- Not meeting the whole person impairment or serious injury threshold before filing
- Missing the limitation period, which varies by jurisdiction and may be shortened by the workers' compensation Act
- Failing to account for the insurer's right of recovery against the common law damages
- Underestimating future economic loss where the worker has residual capacity
- Not addressing the election between statutory benefits and common law damages where required
Run this workflow on a real matter
Quillio identifies the applicable state threshold, calculates impairment against the prescribed guidelines, and structures the damages schedule. See /practice-areas/employment-lawyers or start a free trial.
This workflow is a general guide. Workers' compensation common law claims vary significantly between jurisdictions — always verify the applicable Act, threshold, and limitation period.
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