How do I bring a common law claim for a work injury in QLD?
Under workers’ compensation legislation in Queensland, if you have had a workers’ compensation claim, and you wish to proceed with a Common Law claim for damages for your injury, you need to be very careful what steps you take when your workers’ compensation claim is coming to an end.
In Queensland, the majority of injured workers are required to make an election at the end of their workers’ compensation claim as to whether they wish to proceed with a Common Law claim for damages in respect to their work injury.
This occurs when the worker receives a Notice of Assessment of their work injuries from Workcover Queensland.
Can I get work accident injury compensation?
Incorrectly responding to the notice of assessment, could lose all your rights...
If you take the wrong step when responding to the Notice of Assessment, you could lose all rights to proceed with a Common Law claim for damages and miss out on significant compensation.
It is extremely important that you contact The Personal Injury Lawyers for legal advice prior to taking any steps in response to the Workcover Notice of Assessment so this does not happen to you.
Many workers think that, unless there has been a statutory workers’ compensation claim for the injury, they cannot pursue a common law claim for damages, this is incorrect.
How do I pursue a common law claim for damages?
A worker who has suffered injury in the course of their work is quite entitled to sue for damages for their work injury if it has been caused by the negligent act or omission of their employer, whether they have previously brought a workers’ compensation claim for the injury or not. Two important points we want to highlight to you:
- The Workers’ Compensation & Rehabilitation Act 2003 and associated Regulations govern the procedural requirements for bringing and pursuing a Common Law Claim for Damages, as well as the awards of damages in relation to work injury claims in Queensland.
- Navigating the provisions of the Workers’ Compensation & Rehabilitation Act 2003 and Regulations can be quite complex and it is therefore important that you obtain legal advice with respect to what compensation entitlements you may have under such legislation. The Personal Injury Lawyers will be able to provide you with this advice.
How will my common law claim run, and how long will it take?
As indicated above, if you decide to proceed with a Common Law Claim, there are a number of steps that need to be taken under workers’ compensation legislation before your claim can proceed into the Court realm.
The purpose of this is so that you and Workcover Queensland (or the self-insurer) can try to resolve your claim without the need to progress to litigation (bringing a claim in a Court of Law).
These steps commence with the service of a document called the Notice of Claim for Damages, on Workcover Queensland and the employer.
When will it proceed to a settlement conference & the filing of a common law claim?
After the insurer has time to investigate your claim and the parties are able to gather information about the extent of your injuries, your claim proceeds to a settlement conference, where you have the opportunity to try to resolve your claim.
If this does not occur, then your claim proceeds to litigation with the filing of a Claim and Statement of Claim in the appropriate Court.
Once you commence your claim in the Court, you do not immediately move to a trial.
Are there opportunities for parties to resolve claims through written offers?
The Court process encourages parties to try to resolve claims through Alternate Dispute Resolution (ADR) prior to moving to a trial.
There are also opportunities for the parties to try to resolve their claims through written offers being exchanged between the parties whilst your claim is running.
If the parties agree, your claim may proceed to a Mediation prior to the matter being set down for trial. At the Mediation, an independent mediator will try to bring you and the workers’ compensation insurer (Workcover or the self-insurer) to a fair and reasonable settlement of your claim.
What if I am unable to settle my claim at the mediation?
If you are unable to settle your claim at the Mediation, then your matter is set down for trial and proceeds to trial at the next available hearing date.
Depending on the status of your injuries at the time of commencing your Common Law claim and the liability and medical investigations that the parties need to pursue before they are ready to proceed to a settlement conference.
It can take from approximately 6 to 12 months before the initial settlement conference takes place.
What if I am unable to settle my claim at the settlement conference?
If your claim does not settle at the settlement conference, then the Mediation will usually occur within 4 to 6 months of the initial settlement conference.
If the Mediation is unsuccessful, then your claim will usually be set down for hearing within approximately 6 to 9 months of the Mediation, depending on the availability of hearing dates.
Once the hearing takes place, it can take a number of months before a decision is handed down.