Some work injuries are caused due to someone's fault or negligence. This can be because of your employer's failure to provide a safe workplace, although it can include the acts of another party with no connection to your employer. A claim seeking compensation for an injury where negligence is involved is called a common law claim.

When can I bring a common law claim?

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 that you have suffered a serious injury.

What is a serious injury?

This means either receiving an impairment assessment of 30% or greater in a lump sum application or qualifying under one of the definitions of serious injury set out by law. 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 these definitions involves an assessment of the injury and its effects to see if the consequences of the injury 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 for a serious injury certificate is denied, then a case can be issued in the County Court of Victoria seeking a certificate.

How long does a common law claim take?

A common law claim can only be started after your injury is stabilised. We then need to gather all medical records and reports and this can take up to 6 months. From this time, the duration varies dependent on factors including whether the Victorian WorkCover Authority rejects or accepts the serious injury application, the complexity of the case, and whether the case settles prior to litigation. As a rough guide, from the date of the serious injury application (the first step) common law claims can take between 6 - 24 months.

How long do I have to make a common law claim?

For injuries which occur in Victoria, injured workers generally only have six years from the date of injury to commence a common law claim by lodging a Serious Injury Application.

If you or a loved one have suffered a work related injury, it is important to get legal advice to know your rights and entitlements. To arrange your free initial consultation, contact our legal team on (03) 9321 9988 or submit an online enquiry.