Separately from your statutory WorkCover entitlements, you may in some circumstances bring a claim against your employer and/or a third party in relation to your injuries. These claims depend on you being able to establish that your injuries were caused by your employer’s or a third party’s negligence. You have 6 years from the date of your injury to bring a common law claim but this can be extended in some circumstances. If you are successful with this claim you will recover compensation in the form of damages.
Damages are divided into the following:
1. Pain and and suffering damages
These are designed to compensate you for your pain and suffering arising out of your injuries, and your loss of enjoyment of life. They are also called general damages and are subjective to each claim. These damages focus on how you have been personally affected by your injuries in terms of your ability to pursue your activities of daily living, your hobbies, sporting endeavours etc.
2. Economic loss damages
These damages are also called special damages and are divided into past loss of earnings and future loss of earning capacity and are designed to compensate you for your loss of wages both past and into the future.
In order to be successful with a common law claim you will need to establish the following 2 elements :
1. Serious injury
This is a pre-requisite to being entitled to pursuing a common law claim. Only if you can show that your injuries satisfy the definition of serious injury will you be able to pursue a common law claim.
A serious injury is either a 30 % Whole Person Impairment pursuant to the 4th Edition of the American Medical Association Guide for the Evaluation of Permanent Impairment or one of the following:
a. permament serious impairment or loss of a body function
b. permanent serious disfigurement
c. permanent severe mental or behavioural disturbance or disorder or
d. loss of a foetus
When assessing whether you satisfy the definitions under a., b. and c. a Court will look at how you have been subjectively affected by your injuries. In other words a Court will look at the consequences the injuries have had on you personally.
If you satisfy the serious injury test, you may obtain a serious injury certificate for pain and suffering only or for pain and suffering and economic loss. In order to qualify for the latter, you must show that as a result of your injuries you have suffered a permanent loss of earning capacity of at least 40% compared to your pre-injury earnings or earning capacity. This is a very onerous test to satify.
If you satisfy Worksafe or a Court that you suffer fom a serious injury, you will be entitled to issue proceedings against your employer and/or a third party you hold responsible for your injuries.
You must show that your employer or a third party negligently caused your injuries. Your employer has an obligation to provide you with a safe system of work. If your employer fails to do this and as a result you suffer injury, then arguably you will be able to establish negligence. If your injuries were caused by the act or omission of a third party, you must show that this third party breached a duty of care it owed you and that you have suffered your injuries as a result of this act or omission.