In addition to settlements available in the workers’ compensation system, those who have sustained at least a 15% permanent whole of person impairment may be eligible to pursue a common law claim against their employer in the courts.

However, unlike the “no fault” workers’ compensation system, to succeed in their claim the worker will need to prove in court that their workplace injury was caused by negligence or other tort committed by their employer.In the case of the work related fatality of a worker, the family of the worker should speak to WorkCover WA’s Advisory Services for claim advice.

Are you eligible to seek common law damages?

The option of pursuing common law damages against their employer is not open to all workers with a workers’ compensation claim. There are certain legislative provisions that need to be met in order to pursue a claim for damages at common law:

1. Impairment: A worker choosing to pursue a claim for common law damages against their employer must have a level of permanent WPI of not less than 15%.
2. Negligence: Workers must prove that their workplace injury was caused by negligence or other tort committed by their employer and who meet certain eligibility requirements can pursue a claim for damages outside of the statutory workers’ compensation system.
3. Timeframes: Timeframes, also known as ‘the termination day’ apply for a worker seeking access to common law damages.

If you are eligible to seek common law damages, you must advise of your intention to do so within strict time frames by lodging an Election to Retain Right to Seek Damages Form (Word - 60kb) with the Conciliation and Arbitration Services (CAS).

Note that an election may affect your workers’ compensation entitlements and, once made, is irreversible. It is strongly recommended that you seek independent legal advice before making a decision.

What is the ‘termination day’?

The termination day is the date at which you cease to be eligible to make a claim for common law damages. The termination day generally falls one year from the date your claim for weekly compensation payments was made to your employer, however there are exceptions. For more information, contact Advisory Services on 1300 794 744.

The employer (or the employer’s insurer) is required to notify you in writing of the termination day within the two week period commencing on the day that is six months and 14 days before the termination day. This notification must indicate the significance of the termination day for your ability to seek damages and explain the process and time required to obtain a whole of person impairmant assessment.

If your condition has not stabilised enough for an Approved Medical Specialist to determine your degree of permanent whole of person impairment and your termination day is approaching, you may submit an Application to Extend Termination Day Form (Word - 70kb) to the Conciliation and Arbitration Services (CAS).

In addition to the termination day, there may be other statutory limitation periods that affect the time when legal proceedings need to commence, such as those stipulated in the Limitation Act 2005.

Your entitlements may be affected

Workers with a permanent whole of person impairment of at least 15 per cent and less than 25 per cent

There is a cap on common law damages for workers with this level of injury - the amount of damages is determined by the severity of the injury or injuries.

Furthermore, if these workers elect to pursue a common law claim against their employer, they are subject to a step-down in weekly payments and their entitlements to other statutory benefits cease. Assuming these workers have sufficient funds remaining in the Prescribed Amount for their claim, their weekly payments will reduce as follows:

• For the first three months, the worker will receive 70% of the amount of weekly payments to which the worker would otherwise have been entitled.
• For the second three months, the worker will receive 50% of the amount of weekly payments to which the worker would otherwise have been entitled.
• Weekly payments cease after six months.

Workers with a permanent whole of person impairment of at least 25 per cent

These workers will continue to receive the statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount damages they can receive.