Electing common law damages in a NSW workers compensation claim
Work injury damages (WID) are available only where the worker has at least 15% whole person impairment. Election is binding and extinguishes future statutory entitlements for the same injury. Timing and election mechanics are critical.
This is an 8-step workflow for electing to pursue work injury damages at common law under s 151H of the Workers Compensation Act 1987 (NSW), requiring 15% whole person impairment.
Before you start
- Accepted workers compensation claim
- 15% whole person impairment assessment (s 66 lump sum)
- Negligence case against employer identified
- Client instructions on future statutory benefit waiver
The workflow
Confirm the 15% WPI threshold
Confirm the worker has a s 66 assessment of at least 15% WPI. The assessment must be agreed or determined — it cannot be provisional.
Advise the worker on the trade-off
WID is a past-and-future economic loss only (no general damages, no medical in the award). Election extinguishes future s 60 medical expenses and weekly payments for the injury.
Model the damages
Model past and future economic loss, including superannuation (s 151M). Compare to the value of remaining statutory entitlements. Election makes sense only where damages materially exceed that value.
Assess the negligence case
Assess breach, causation, and contributory negligence. WID requires proof of negligence (unlike no-fault statutory benefits). Weak liability undermines the election.
Serve pre-filing statement under s 315
Serve the pre-filing statement with schedule of damages, evidence, and medical reports. Insurer has 42 days to respond or deemed denial.
Attend compulsory mediation
Mediation under s 318A is compulsory before proceedings can be filed. Prepare a realistic settlement range with senior counsel advice.
File Statement of Claim
If unresolved, file in the District Court of NSW within six months of mediation. Plead negligence and damages under s 151G (modified CLA 2002).
Execute the election on settlement or judgment
Execute the formal s 151A election at settlement or judgment. From that point, statutory entitlements for the injury cease. Confirm final payout of outstanding entitlements.
What you will have at the end
A successful work injury damages settlement or judgment for economic loss plus super, with statutory entitlements properly finalised.
Common issues
- Electing without modelling remaining statutory entitlement value
- Pre-filing statement omissions that narrow the admissible damages
- Missing the six-month post-mediation filing window
- Underestimating the contributory negligence discount under s 5R CLA
- Not confirming s 66 assessment is final before electing
Run this workflow on a real matter
Quillio drafts WID pre-filing statements, models damages against remaining statutory entitlements, and calendars the s 318 timeline. See /practice-areas/personal-injury-lawyers.
This workflow is a general guide. WID rules have been amended multiple times — verify the version applicable to the date of injury.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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