Published: 27 July 2021
Author: Ross Inglis
What’s involved in making a Common Law injury claim?
In this blog, I explain what steps are involved should you wish to proceed with a Common Law claim for serious injury, in addition to already having obtained a permanent impairment injury lump sum from WorkCover Victoria.
Impairment versus Common Law lump sum compensation
Impairment payments are made by the Victorian WorkCover Authority to compensate workers for a permanent injury incurred at a worksite.
The amount payable under an impairment claim is based on the type and severity of the injury or injuries, according to WorkCover’s table of impairment severity.
Impairment claims are quite separate to claims for loss of income.
Common Law claims for damages however are in addition to and much larger than WorkCover impairment claims. These claims require legal documentation to be lodged with the Victorian WorkCover Authority. It is necessary to establish that you have a serious injury contributed to, or caused by, another parties’ negligence.
It is necessary to establish that you have a serious injury contributed to, or caused by, another parties’ negligence.
You may consider pursing a Common Law claim if your injury was contributed to by the negligence of your employer.
Unlike an impairment claim, the personal consequences of the accident such as loss of earning capacity are taken into account. As an additional component, the court may also add a payment for any pain and suffering incurred by you.
For more on how Impairment and Common Law compensation works see Workplace Injury and WorkCover Claims.
Steps to a Common Law damages claim
Having already made a WorkCover claim, you may be getting weekly payments, be seeing doctors, or have had surgery even.
Finally, you may also have been successful in obtaining an impairment claim lump sum through the WorkCover Authority.
But, if you remain seriously injured and you know that your employer’s negligence has contributed to your permanent injured state, you may decide to pursue an additional Common Law claim for damages.
When supported by an expert injury compensation lawyer from Ryan Carlisle Thomas, here is what you can expect.
Medical treatment - no change
You needn't worry about having your medical treatment tampered with, whether you are successful in your Common Law claim or not. For the costs associated with your medical treatment, there is usually no change.
Weekly payments - no change, unless you win
If you are on weekly payments, generally speaking, these will continue unaffected while you pursue your claim. They may stop if you win your Common Law claim but the lump sum you receive usually compensates for this.
Expect more medical assessments
You will likely be required to attend medical assessments arranged by your lawyer or by WorkCover's lawyer. The doctor will be reviewing previous medical assessments and reassessing your condition in light of your new Common Law claim. However, the process will be similar to what you underwent in the assessment of your impairment claim.
Telling your story - tell it like it is
Our injury compensation lawyers will want to spend some time getting to know your story in detail. In your own words. The purpose of this is to understand exactly how your injury has limited or affected your life and the lives of your family and friends: what you now can't do or are having trouble with. Have you given up golf? Is pain interrupting your sleep? Are you struggling to get through the day without taking painkillers?
Your story will be cast as a statement by you, painting a before-and-after picture of your life. This really is your opportunity to tell it like it is, making it clear what you are going through.
Fees and costs update
We will discuss legal costs with you at certain intervals during the life of your claim, giving you an estimate of the range of your legal costs. Remember: under our No Win No Fee OR Expenses fee policy, you will not be up for any legal bills outside your compensation settlement.
Going to court
It's likely you'll never go to court. In fact, we settle more than 80% of our Common Law cases outside of court.
If you don't go to court, you may be required to attend a settlement conference with your lawyer and the WorkCover lawyers.
If your case does go to court, it may not be as stressful as you might have pictured in your mind. Not all cases involve a jury. In fact, many don't. And rarely are cases written up in the newspaper or televised on the news.
We will spend time discussing the process with you and what you can expect before, during and after the court case. If your case actually does get heard in court, it is still possible that the matter will settle during the running of the case.
If your case runs all the way to judgement, you may get a decision on the day the court case ends, several months afterwards, or anywhere in between.
Discussing your Common Law case
If you think you may have a Common Law damages claim for serious injury, the sensible first step is to discuss things with us. We will give you an instant assessment of your chances of success and the process involved, completely free of charge.
If you believe your workplace injury was caused by the negligence of your employer and have any queries about how the common law compensation claim process works, do not hesitate to call us on 1800 641 743 for completely free initial advice.