A Work Injury Damages claim (also known as a common law claim) is a claim for economic loss that you may be entitled to make if:

• Your injury has been assessed at 15% whole person impairment or more
• Your injury was caused by your employer’s negligence
• You have first received lump sum compensation for permanent impairment

These claims are different from standard workers compensation claims as they require proof of employer negligence. They are typically more complex and can result in larger settlements, but they may affect your other workers compensation entitlements.

To establish employer negligence, you must be able to prove:

• Your employer owed you a duty of care
• Your employer breached that duty of care
• The breach caused your injury
• Your injury resulted in economic loss
•  

Examples of employer negligence may include:

• Failure to provide a safe work environment
• Inadequate training or supervision
• Failure to implement proper safety procedures
• Not providing appropriate safety equipment
• Failure to address known workplace hazards

The relationship between workers compensation and work injury damages is complex:

• You must first receive a lump sum permanent impairment payment before pursuing a work injury damages claim.
• If you receive work injury damages compensation, your weekly workers compensation payments will cease.
• You may need to repay some workers compensation benefits from your work injury damages settlement.
• Medical expenses coverage will generally continue while your work injury damages claim is ongoing.

If you finalise a work injury damages claim, your medical expenses will cease and you will not be entitled to future medical expenses.

In a work injury damages claim, you can claim for economic loss only, which includes:

• Past loss of earnings (from the date of injury to settlement)
• Future loss of earnings (your predicted loss of earning capacity)
• Loss of superannuation benefits
• a Fox v Wood payments (a right to recover the tax withheld component of the weekly compensation benefits paid to them)

Please note that unlike other personal injury claims, you cannot claim:

• Pain and suffering
• Care and assistance
• Medical expenses

There are time limits that apply to work injury damages claims:

• Generally, you must commence proceedings within 3 years of the date of injury.
• There are certain legal actions, which can stop time limitations running.
• The claim can only be made after your permanent impairment has been assessed at 15% or over
• You must have received your lump sum permanent impairment compensation first
• Extensions of time are granted where there is a claim with good prospects and where the Defendant is not prejudiced by the late claim.

It is important to seek legal advice as soon as possible to ensure you don’t miss these critical deadlines.

A work injury damages claim follows several mandatory steps:

• Your permanent impairment must be assessed at 15% WPI or over.
• You must notify your employer/insurer of the particulars of your claim for damages.
• You and your lawyers must gather evidence, including, but not limited to witness statements, medical reports, income loss records, and expert liability reports to assist in proving the claim.
• A pre-filing statement must be served on the employer/insurer containing all your evidence.
• Compulsory mediation must be attempted
• Court proceedings can only be commenced if mediation is unsuccessful
• A hearing will be scheduled if the matter cannot be resolved

Each step has specific requirements and timeframes that must be followed.

The duration of a work injury damages claim can vary significantly:

• Most claims take between 12-18 months to resolve, but this may be longer if the matter proceeds to Court.
• Complex cases may take longer.
• The time taken depends on factors such as:
  • The complexity of proving negligence
  • The availability of experts
  • Whether liability is disputed
  • The extent of economic loss
  • The time needed to gather evidence
  • Whether the matter settles at mediation

• Your reduced earning capacity will be assessed.
• Future job prospects will be evaluated.
• Retraining possibilities will be considered.
• The impact on your retirement plans may be factored in.
• The effect on your superannuation will be calculated.

You will need substantial evidence to support your claim, including:

• Medical evidence of your injury and impairment
• Proof of your employer’s negligence
• Employment and income records
• Evidence of attempts to return to work
• Financial records and tax returns
• Witness statements
• Expert reports
• Documentation concerning your economic losses

Your lawyer will help you gather and prepare this evidence.

The costs structure for work injury damages claims is different from standard workers compensation claims:

• Legal costs are generally not covered by IRO
• Most law firms will handle these claims on a no-win, no-fee basis
• Court filing fees and other expenses may apply
• Expert report costs may be incurred
• If successful, some of your legal costs can be recovered from the insurer
• If unsuccessful, in particular after Court proceedings have begun, you may be liable for the Defendant’s costs