Common Law Claims

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common law claim

What does it mean to make a common law claim?

A common law claim is a claim for damages where legal action can be taken against an employer or work colleague for negligent or wrongful acts, which resulted in your injury. 

Aside from claiming the benefit for an injury, a person is also entitled to claim for the loss of income or for the 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.

What is the difference between a statutory claim and a common law claim?

A statutory claim doesn’t require any party to be at fault for the cause of the injury. However, a common law claim must prove the negligence induced by the employer of a work colleague that resulted in an injury. 

Common law legislation

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 recommended some 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 injury lawyers.

Who can make a common law claim?

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)

Learn more: How to make a personal injury claim

What is a common law claim for negligence?

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.

Common law time limits

Personal injury claim time limits also apply to 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 also be met.

Common law claim payouts and entitlements

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.

Learn more: 

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.

Medical and 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
  • 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 a 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 work injury lawyers at Owen Hodge Lawyers today. They have experience in all types of personal injury claims and can answer any questions you may have about work injury damage claims in NSW  and common law claim payouts. And if you’re still unsure about common law compensation, contact our work injury damages lawyers on 1800 770 780.


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Want to make a common law claim for damages? The personal injury lawyers at Owen Hodge are here to help. Get in contact today.

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Personal Injury Team

Rolf Howard

Managing Partner, Commercial Litigation Lawyer