If you suffer an injury at work - physical or psychological - you are entitled to claim benefits through your employers WorkCover insurance. You don't need to prove anyone's fault to be eligible. But to obtain additional compensation, or 'damages', you must bring a common law claim.

Some work related injuries are due to someone's fault or negligence - such as an employers failure to provide a safe workplace or the acts of a third party who have no connection to your employer. A compensation claim for an injury where negligence is involved is separate and in addition to your entitlements under the WorkCover system.

Damages

There are 2 main categories of damages sought in a common law claim:

1. Pain and suffering, or general damages. This is compensation for the pain and suffering you have endured and will continue to endure, and your loss of enjoyment of life;
2. Past loss of earnings and future loss of earning capacity. This is compensation for wages lost because you have been unable to work, and/or are unable to work into the future.

Even where your injury was caused by your employer or another person's fault, you do not automatically have the right to sue for damages. You must first establish:

1. That you have suffered a serious injury; and
2. That your employer (or someone else) was negligent.

What is a serious injury?

You must have a serious injury to be able to bring a common law claim. This means either receiving an impairment of 30% or greater in a lump sum application under your WorkCover claim (this is what we refer to as a 'Deemed Serious Injury'), or qualifying under one of the definitions of serious injury in the Accident Compensation Act. These are:

• Permanent serious impairment or loss of a body function
• Permanent serious disfigurement
• Permanent severe mental or permanent severe behavioural disturbance or disorder
• Loss of a foetus

Whether you meet any of the above definitions involves an assessment of your injury and it's consequences to see if these are'more than significant' when compared with other cases.

The Victorian WorkCover Authority (or WorkSafe), through its lawyers, may issue a certificate confirming you have suffered a serious injury. If your application is denied, then a case can be issued in the County Court of Victoria seeking a certificate, where a judge decides whether you meet the serious injury criteria.

Does the Serious Injury Certificate entitle me to sue for both types of damages?

Not necessarily. A Certificate can either be granted to allow you to sue for both pain and suffering and loss of earnings, or just pain and suffering. It is very difficult to get the right to sue for loss of earnings only.

Unless you have a 'Deemed Serious Injury', you can only claim for lost earnings if you can prove that your present and future earnings have dropped by at least 40%, and that this drop will be permanent.

A detailed analysis of your earnings and medical reports would need to be completed to see whether you establish this loss. It is a particularly onerous requirement because the analysis of your future earnings does not look at whether you are actually working or can get a job, but whether your medical condition allows you to work, and if so, how much money you could theoretically earn.

What happens when I get the Certificate?

You now have the right to sue for damages.

There are steps that must be completed before you can issue your court case, such as a settlement conference and written offers from each party. If these do not lead to settlement, a Writ would then be issued in the County Court. This is the case where negligence and damage has to be proven and the outcome is usually determined by a judge and jury of six.

How can I prove it was their fault?

Over the years, Courts have broken down negligence into various elements. Some of these are:

• The Defendant must have owed you a duty of care
  • It is almost always the case that a duty of care was owed.
• The Defendant must have breached their duty of care
  • Should a reasonable employer in the Defendant's position have foreseen that their conduct or inaction involved a risk of injury to you?
• The Defendant's breach must have caused your injury
  • This relies on medical opinion to confirm that you have suffered an injury and that it is related to the Defendant's negligent conduct.

In stress-related claims, negligence can be difficult to establish. Factors include:

• Whether the employee showed signs of stress and had made complains; or reported stress or psychological symptoms
• Whether the employer has adequate bullying and other policies, and if so, whether they are actually implemented
• Whether the job involved anything out of the ordinary compared to other employees.

How long have I got to sue?

A common law claim must begin within 6 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms.

You should seek advice well before the 6 years expires, however, as preparing a case takes some time. Even if you don't think your injury is serious, you should at least obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.

You can book a free appointment with a member of our Workplace Injury team by calling (03) 9321 9988.