Workcover common law damages in Victoria – Health and Safety

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If you are injured on the job in Victoria, you may be entitled to compensation for lost wages, medical expenses and lump sum compensation. The lump sum compensation may take the form of an impairment benefit and, in certain circumstances, may be what is known as common law damages. This article will look at your right to damages at common law in Victoria for work-related injuries.

WHAT ARE COMMON LAW DAMAGES?

Common law damages are a lump sum payment of money to compensate you for your loss as a result of injury caused by the negligence of another person or entity.

If your injury occurred at work or in the course of your employment, these damages are limited to two types:

  • Damages for pain and suffering: intended to compensate you for your permanent pain, suffering and loss of enjoyment and quality of life

  • Economic Loss Damages: designed to compensate you for your past and future loss of income and retirement pension

Common law damages are separate from the benefits available to you (weekly salary, medical expenses, lump sum for permanent impairment, etc.), through the Victorian WorkCover no-fault scheme.

AM I ENTITLED TO COMMON LAW DAMAGES?

Not all injured workers in Victoria can claim damages under common law. To succeed in a common law claim for damages, you must prove 2 things:

  1. That you have suffered a “serious injury”; and

  2. That another person or entity (the defendant) was negligent.

You must prove BOTH of the above to be entitled to receive common law damages.

WHAT IS A “SERIOUS INJURY”?

“Serious Injury” is a legal term with a special definition in workplace injury claims. You must prove that you suffered a serious injury before you can file a negligence claim against the defendant. There are different ways to establish that you have suffered a serious injury.

Generally, a serious injury is an injury that has permanent and significant effects on your daily life. If you fully recover from an injury and return to a normal life, without the continued need for treatment or medication and without permanent interruptions to your daily activities, hobbies or sleep, it is unlikely that you will reach the serious injury threshold.

A serious injury can be:

  • physical injury;

  • psychological injury;

  • scars or disfigurement; Where

  • the loss of a fetus.

If you prove that you have suffered a serious injury, you receive a certificate which allows you to claim common law damages. This does not mean that you are entitled to these damages. You still have to prove the second element mentioned above; that another person or entity has been negligent.

EVIDENCE OF NEGLIGENCE IN A COMMON LAW WORKCOVER CLAIM

To prove negligence, you must show the following:

  1. The defendant owed you a duty of care. This means that the defendant had to take reasonable steps to ensure your safety. Generally, this is undisputed in the WorkCover cases.

  2. The defendant breached this duty of care to you. This means the defendant did something that caused your injury or failed to do something that could reasonably have prevented your injury.

  3. This means that the defendant’s breach of duty to you is the cause of your injury. Consider this example:
  • The accused leaves a box in the middle of an aisle that you cannot easily see;

  • You do manage to navigate around this box though;

  • Once past the box, you trip over your own shoelace.

This will not constitute negligence, because while leaving the box in an aisle would likely breach the defendant’s duty of care to you, it is not the cause of your fall.

Usually, in WorkCover common law damage claims, the defendant is your employer. However, this is not always the case.

For example, if you hurt yourself on your lunch break while shopping, it may be the negligence of the store owner or occupant that caused your injury. Or, if you are injured while driving from job to job, it may be the other driver.

WHAT COMPENSATION AM I ENTITLED TO?

Unlike claims for impairment (under WorkCover’s no-fault plan), there is no formula for calculating the amount of damages that should be awarded. Much depends on the specific circumstances of your accident and injuries.

There are legal maximums that apply to WorkCover’s claims for damages. The damages cannot exceed these amounts.

Although not determinative, reviewing other verdicts can help to understand what types of damages are awarded. You can read our previous article, “What is the maximum compensation I can receive for my personal injury claim?” for more detailed information.

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