If you have sustained at least a 15 per cent permanent whole of person impairment you may be eligible to pursue a common law claim against your employer in the courts.

Employer at fault

Unlike the ‘no fault’ workers’ compensation system, to succeed in your common law claim you will need to prove in court that your workplace injury was caused by negligence committed by your employer.

Fatalities

In the case of a work-related fatality, the family of the worker should speak to WorkCover WA’s Advice and Assistance on 1300 794 744.

The option of pursuing common law damages against an 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:

Permanent impairment

If you choose to pursue a claim for common law damages against your employer you must have a permanent whole of person impairment (PWPI) of at least 15 per cent.

Employer at fault

If you meet eligibility requirements and can prove that your workplace injury was caused by negligence committed by your employer you can pursue a claim for damages outside of the statutory workers’ compensation system.
A timeframe applies for workers seeking access to common law damages. This is known as the ‘termination day’.

What happens next?

If you are eligible to seek common law damages, you must advise of your intention to do so within a strict timeframe by lodging an Election to Retain Right to Seek Damages form available on the Workers forms page with the Director, Conciliation.

Note: 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.

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

Your rights and obligations

Your employer (or their 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 common law damages and explain the process and time required to obtain a permanent whole of person (PWPI) impairment assessment.

Condition not stabilised

If your condition has not stabilised enough for an approved medical specialist (AMS) to determine your degree of PWPI and your termination day is approaching, you may submit an Application to Extend Termination Day form available on the Workers forms page to the Director, Conciliation.

Applications made in these circumstances must be accompanied by a report and certificate provided by an AMS, recommending a day that your termination day should be extended to.

Other considerations

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

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 if you have a permanent whole of person impairment of at least 15 per cent and less than 25 per cent – the amount of damages is determined by the severity of the injury or injuries.If you elect to pursue a common law claim against your employer, you are subject to a step-down in weekly payments and your entitlements to other statutory benefits cease.Assuming you have sufficient funds remaining in the prescribed amount for your claim, your weekly payments will reduce as follows:

  • for the first three months, you will receive 70 per cent of the amount of weekly payments to which you would otherwise have been entitled
  • for the second three months, you will receive 50 per cent of the amount of weekly payments to which you 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

If you have a permanent whole of person impairment of at least 25 per cent you will continue to receive the statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount of damages you can receive.