An employer’s guide to WorkCover common law claims
As an employer, navigating the WorkCover system does not have to be a maze of complexity. This how-to employer’s guide will break down some of the steps you will encounter and give you an understanding of what to expect when a common law claim commences.
What is a common law claim?
A common law claim is a claim brought by an injured worker against an employer seeking damages in respect of allegations of negligence.
While there is no doubt that suffering a personal injury at work can be a life-changing event for the worker, it is also clear, that a claim can (and often does) have a profound impact on the employer too.
What does a common law claim against your organisation mean in practical terms?
In Queensland, every employer is required to hold workers’ compensation insurance under section 48 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”), either under a WorkCover policy or under a self-insurer licence.
This means if a claim for damages is made against your organisation, WorkCover or your self-insurer will instruct a lawyer on your behalf to defend the claim and will pay the associated legal costs and damages.
Generally, the claim should not come as a surprise as the worker has already progressed through the statutory claim process (the “no fault” compensation scheme where the focus is on treatment, support and return to work).
What is a Notice of Claim for Damages?
A common law claim commences with a Notice of Claim for Damages (NOCD) which sets out:
the person who is making the claim
who the claim is being made against
the nature and extent of the injury and what is said to have occurred
the allegations of negligence
the damages being claimed.
When do lawyers get involved in a common law claim and what will they need from you?
When WorkCover receives a copy of the NOCD, the claim is allocated to a lawyer who will reach out to you to discuss the claim process, timelines and address any concerns you might have.
The lawyer will also ask you for specific information or documents that will be helpful to assess and defend the claim. This might include:
details about the worker including the nature of their employment, usual role, work tasks and hours
any incident or investigation reports which discuss the circumstances of the incident or its aftermath
training records.
The types of information or documents requested will depend on the specific facts of the claim.
Your organisation might be asked to comment on the mechanism of injury and provide a statement. Your lawyer might also complete a site inspection.
What’s involved in assessing liability?
Information collected will be used to assess liability including:
whether the risk of injury was reasonably foreseeable
whether the injury was preventable
the reasonableness of the alternative – whether the failure of the employer to eliminate or control the risk showed a want of reasonable care for the worker’s safety
whether the injury was caused by the risk in question.
While managing the claim, your lawyer will also complete other investigations which might include:
obtaining medical records to assess pre-existing or subsequent medical history that might impact the worker’s ability to work
obtaining a report from a medical specialist to comment on the cause of the injury, the nature and extent of the injury and what further treatment may be appropriate
obtaining Work Health & Safety records
reviewing the worker’s financial records and previous employer records to assess their pre-injury or post-injury ability to earn an income.
What happens when liability has been investigated?
The investigations can occur over a number of months. Ultimately, WorkCover, or your self-insurer, is required to give written notice to the claimant within six months under section 281 WCRA. Your lawyer will draft this document based on their investigations. The Notice will be provided and discussed with you to make sure you understand what is being said on behalf of your organisation.
The Notice will state whether liability is admitted or denied, and whether contributory negligence is alleged. If liability is denied, the Notice will state the reasons for the denial.
Once the Notice has been issued, the matter is likely to proceed to a Compulsory Conference. Under the WCRA, the Conference is required to be held within 3 months, but this may be delayed by things such as the availability of the parties, any ongoing investigations and the progression of any another claim/s.
Stay tuned for the next topic about compulsory conference and settlement negotiations.
About the author
Elizabeth Bainbridge-Brown is a Consultant with Hughes and Lewis Legal
Contact
elizabeth@hughesandlewis.com.au