What Is the Common Law Workmen’s Compensation?

Workplace injuries can have a profound impact on a worker’s health, finances, and future. In Australia, the workers’ compensation system is designed to provide support and financial assistance to employees who are injured or become ill due to their work. While most workers access compensation through statutory (no-fault) schemes, there is another, less common but sometimes more substantial avenue: common law workmen’s compensation. Understanding the difference between statutory and common law claims, and knowing when and how to pursue a common law claim, can make a significant difference for injured workers and their families.

Statutory vs. Common Law Claims: What’s the Difference?

Statutory workers’ compensation is the standard system in Australia. It operates on a no-fault basis, meaning injured workers can receive benefits—such as weekly payments for lost wages, medical expenses, and lump sums for permanent impairment—without having to prove that anyone was at fault for their injury. Each state and territory has its own legislation and scheme, but the core principle is the same: quick, accessible support for workers who are hurt on the job.

Common law workmen’s compensation, on the other hand, is a legal claim made against an employer (or sometimes a third party) for damages resulting from negligence. In a common law claim, the injured worker must prove that their injury was caused by the employer’s failure to provide a safe workplace or by another act of negligence. If successful, the worker may receive compensation that goes beyond what is available under the statutory scheme, including damages for pain and suffering, and future economic loss.

When Can a Worker Make a Common Law Claim?

Not every workplace injury qualifies for a common law claim. There are strict criteria and thresholds that must be met:

• Permanent Impairment Threshold:
  In most Australian states and territories, you must be assessed as having a certain minimum level of permanent impairment—commonly 15% Whole Person Impairment (WPI) or higher. This is determined by a formal medical assessment.

• Proof of Negligence:
  You must demonstrate that your employer (or another party) was negligent and that this negligence directly caused your injury. This might involve showing that safety procedures were not followed, equipment was faulty, or hazards were ignored.

• Time Limits:
  There are strict time limits for bringing a common law claim—usually three years from the date of injury, though this can vary by state and in special circumstances.

It’s important to note that in some jurisdictions, accepting a statutory lump sum payment for permanent impairment may prevent you from making a common law claim. Always seek legal advice before making any decisions about your entitlements.

What Can Be Claimed Under Common Law?

A successful common law claim can provide broader and potentially higher compensation than statutory benefits. Damages may include:

• Economic Loss:
  Compensation for past and future loss of earnings if you are unable to return to your previous job or work at all.

• Medical and Related Expenses:
  Costs of ongoing treatment, rehabilitation, medication, and care.

• General Damages:
  Compensation for pain, suffering, loss of enjoyment of life, and emotional distress—categories not generally covered by statutory schemes.

• Other Losses:
  In some cases, damages for loss of superannuation contributions or other entitlements.

However, the total amount you can claim may be capped by legislation, and certain categories of damages (such as gratuitous care provided by family members) may be restricted in some states.

The Common Law Claim Process

1. Assessment of Impairment:
   Obtain a formal medical assessment to determine your level of permanent impairment.

2. Legal Consultation:
   Consult a personal injury or workers’ compensation lawyer to assess your eligibility and the strength of your case.

3. Notification and Negotiation:
   Notify your employer and/or their insurer of your intention to pursue a common law claim. Many claims are resolved through negotiation and settlement.

4. Court Action (if necessary):
   If a settlement cannot be reached, your claim may proceed to court, where a judge will determine whether negligence occurred and assess damages.

5. Statutory Benefits and Repayment:
   If you pursue and succeed in a common law claim, statutory benefits may cease, and you may be required to repay some of those benefits from your damages award.

Why Pursue a Common Law Claim?

The main advantage of a common law claim is the potential for higher and more comprehensive compensation, especially for pain and suffering and future losses. This can be crucial for workers with serious, life-changing injuries. However, these claims are more complex, require proof of negligence, and are subject to strict legal thresholds and time limits. Not every injury or situation will qualify.

Statutory vs. Common Law Workers’ Compensation: A Comparison

Conclusion

Common law workmen’s compensation offers a pathway for seriously injured workers to seek greater compensation when their injury results from employer negligence. While statutory workers’ compensation provides a vital safety net, a common law claim can deliver broader damages, especially for pain and suffering and future economic loss. However, these claims are complex, require proof of fault, and are subject to strict legal and medical thresholds. If you believe your workplace injury was caused by negligence and you have a significant permanent impairment, consult a specialist lawyer early to understand your rights and maximize your compensation.