WorkCover common law damages in Victoria

If you suffer an injury at work in Victoria, you may be entitled to compensation for lost wages, medical expenses and lump sum compensation. Lump sum compensation can be in the form of an impairment benefit and in some circumstances, can be for what is known as common law damages. This article will examine your entitlement to common law damages in Victoria for work related injuries.

Common law damages refer to a lump-sum payment of money that is designed to compensate you for your loss following an injury that has been 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:

• Pain and suffering damages: designed to compensate you for your permanent pain, suffering and loss of enjoyment and quality of life
• Economic loss damages: designed to compensate you for both your past and future loss of earnings and superannuation

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

Not all injured workers in Victoria can make a claim for common law damages. To be successful with a claim for common law damages, you need to prove 2 things:

1. That you have sustained 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.

“Serious injury” is a legal term with a special definition in claims due to workplace injury. You need to prove that you have sustained a serious injury before you are allowed to make a negligence claim against the defendant. There are different ways to establish that you have sustained a serious injury.

Generally, a serious injury is an injury that has permanent, significant effects on your day-to-day life. If you completely recover from an injury and go back to your life as normal, with no ongoing need for treatment or medication and no permanent disruption to your daily activities, hobbies or sleep, it is unlikely that you will meet the serious injury threshold.

A serious injury can be a:

• physical injury;
• psychological injury;
• scarring or disfigurement; or
• the loss of a foetus.

If you prove you have suffered a serious injury, you are given a certificate that allows you to make a claim for common law damages. It does not mean you are entitled to these damages. You still need to prove the second component mentioned above; that another person or entity was negligent.

To prove negligence, you need to show the following:

1. The defendant owed you a duty of care. This means that the defendant was expected to take reasonable steps to look out for your safety. Generally, this is undisputed in WorkCover matters.
2. The defendant breached this duty of care to you. This means that the defendant either did something that caused your injury or failed to do something that could have reasonably 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 defendant leaves a box in the middle of a walkway that you cannot easily see;
• You do, however, manage to navigate around this box;
• Once you’ve passed the box, you trip on your own shoelace.

This will not amount to negligence as even though leaving the box in a walkway would likely be a breach of the defendant’s duty of care to you, it is not the cause of your fall.

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

For example, if you are injured on your lunch break whilst shopping, it may be negligent actions by the owner or occupier of the shop that cause your injury. Or, if you are injured whilst driving from one job to the next, it may be the other driver.

Unlike impairment claims (under the WorkCover no-fault scheme), there is no formula to calculate the amount of damages that should be awarded. It very much depends on the specific circumstances of your accident and injuries.

There are statutory maximums that apply to WorkCover damages claims. Damages cannot exceed these amounts.

Whilst it is not determinative, looking at other verdicts can assist to understand what types of damages awards are being made. You can read our previous article, “What is the maximum compensation I can receive for my personal injury claim?” for more detailed information.

At Polaris, we are experts in WorkCover compensation claims. We’ve successfully represented many clients in relation to their workers’ compensation claims.

For advice or assistance with any aspect of your WorkCover claim, please get in touch directly with Polaris Lawyers. It doesn’t cost you anything to find out if you have a claim.