Published: 28 October 2020
Author: Stringer Clark WorkCover Law team

The difference between no fault and Common Law WorkCover claims

There are two different compensation avenues under the WorkCover banner – "no fault" entitlements and Common Law claims.

To understand the difference, see the chart below:

On the left-hand side are "no fault" entitlements. These cover weekly wage payments, medical and related expense payments, and an impairment benefit claim. These entitlements generally don’t require the injured person to go to Court and there is no requirement to prove fault or negligence on the employer’s behalf.

Anyone who is injured at work can make a no fault WorkCover claim.

On the right-hand side is what’s involved in a Common Law claim. This is a lump sum amount that can be awarded by a Court, or through prior settlement.

A Common Law claim requires a worker to have a serious injury and for there to be negligence on behalf of the employer or another party.

No fault WorkCover claims

The "no fault" entitlements are able to be accessed by anyone, regardless of fault.

The "no fault" entitlements are able to be accessed by anyone, regardless of fault.

This means if no one is at fault (as long as you were not engaging in misconduct) you can lodge a WorkCover claim. In claiming these benefits, you are not suing your company, or taking an action in negligence against your employer. These entitlements exist to help you deal with your injury.

Generally, you don’t have to go to Court to obtain these benefits. The benefits are managed by an insurer such as CGU, Allianz or Gallagher Bassett.

Common Law claims

On the other hand, a Common Law claim is suing another party. If the other party is your employer, they will be insured by WorkCover in relation to any legal costs or award of damages.

On the other hand, a Common Law claim is suing another party. If the other party is your employer, they will be insured by WorkCover in relation to any legal costs or award of damages.

You are able to pursue an action for damages against another party if your injury meets a legal test commonly referred to as the “serious injury” test, and if your employer or another party should have been more diligent in their health and safety procedures.

Relevant factors in assessing Common Law claims include: the conduct of the negligent party, the nature of your injury, and the extent of your loss of ability to earn a living. There are procedures in place to assist the parties to settle before the case reaches court, which helps the parties avoid delay and additional costs. A Common law claim is generally pursued after your no fault lump sum entitlements have been dealt with.

This article was first published on 27 October 2011 and updated on 28 October 2020.