Significant compensations can be obtained for workplace injuries. A person is entitled to claim benefit for the injuries sustained; these are known as common law claims for damages (or common law damages).

A person is also entitled to claim for the loss of income or for the pocket expenses incurred due to the injury. Lost superannuation benefits or medical expenses can be claimed through common law damages, provided the other party or the employer was negligent and it resulted in a serious injury of the claimant. If you have further questions or need legal advice about work injury damages, please contact a personal injury lawyer at Owen Hodge Lawyers.

common law claim

Workers compensation common law

There are different legislations regarding common law claims in all the states and territories. In New South Wales (NSW), the laws concerning common law damages are governed by the Workers Compensation Act 1987 (the Act), the Workers Compensation Regulation 2010 and the Workplace Injury Management and Workers Compensation Act 1998.

The NSW Government recently suggested some recommended changes to the Workers Compensation Act, so if you have any questions about a current or future common law claim, please get in contact with our personal lawyers.

To claim for workplace injury damages, the injured person must:

  • Be established as a “worker” under the Act
  • Have sustained a workplace injury in NSW
  • Be able to prove the work injury was due to employer negligence
  • Have at least 15% permanent impairment (assessed by a specialist)

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It’s a claim for a workplace injury that occurred due to the negligence or breach of duty of care on the part of the employer. For more information, speak to our professional negligence lawyers.

There are also personal injury claim time limits for common law claims. The injured worker has to begin proceedings for a common law claim within 3 years from the date of injury.

Prior to the settlement of the workplace injury damages, all lump sum entitlements for permanent impairment must be met.

Pain & suffering and loss of amenities

On or before 19 June 2012, an injured worker had the right to claim for ‘pain and suffering’ payments as per Section 67 of the Act (provided there was 10% or more “whole person impairment”).

Subsequent amendments to the Act have stopped the right to make such a claim. According to the amended Act, a permanent impairment is an injury that cannot be cured completely, and continues to cause pain and restriction of movement.

The amended Act also states that if a person suffers from 10 to 15% or more of a permanent impairment (in cases of physical injury and psychological injury respectively), then the person is entitled to a lump sum payment.

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Past and future loss of income

Under Section 151G of the Act, an impaired person is entitled to make a common law claim for damages (NSW) for past economic loss suffered due to the loss of income. The injured worker can also claim for future loss of earnings that will be suffered owing to the incapacity and inability to earn.

Care costs

In a situation where an injured worker is unable to look after themselves, and they are being looked after either by the family members or by paid professionals, then such professionals are paid from the amount of damages awarded. This is because the injured worker is completely dependent on the family members or on the professional for the rest of their life.

Past and future medical & rehabilitation expenses

An injured worker is entitled to claim for medical and rehabilitation expenses. This includes:

  • Expenses incurred towards medical treatment (including doctors and specialists);
  • Expenses incurred towards hospital services;
  • Expenses incurred towards ambulance services;
  • Expenses incurred towards rehabilitation like physiotherapy; and
  • Any other related expenses.

Out of pocket expenses

The injured worker is also entitled to claim for out-of-pocket expenses; these include:

  • Expenses incurred towards aids and appliances (such as crutches)
  • Expenses incurred towards travel to medical examinations/treatments

Loss of superannuation entitlements

If a person has lost their superannuation benefits due to workplace injury, they can make a common law claim for personal injury damages provided the other party is negligent. In cases where common law damages can be pursued and you are entitled to get economic loss damages, you can claim lost superannuation as part of your damages.

The lost past contributions are calculated like lost future contributions. The lost income earned by these contributions within the superannuation fund will also be calculated and claimed.

Learn more: superannuation insurance

If you have sustained a workplace injury, please call our team of expert workers’ compensation lawyers at Owen Hodge Lawyers. They have experience in all types of personal injury claims and can answer any questions you may have about common law workers compensation and common law compensation payouts. And if you’re still unsure what the answer is to the question “what is a common law claim in Australia?”, contact us at Owen Hodge Lawyers on 1800 770 780.

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