Common law claims

If you have sustained at least a 15% 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 line on 1300 794 744.

Eligibility for common law damages
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%.

Condition not stabilised

If your condition has not stabilised sufficiently for the permanent impairment evaluation to be made you may be able to obtain a special evaluation. This can happen if 18 months has passed since you made the compensation claim on your employer.

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.

What happens next?

If you are eligible to seek common law damages, you must advise of your intention to do so by lodging an Election to Retain Right to Seek Damages form available on the Workers forms page with the Director, Conciliation. There may be statutory limitation periods that affect when legal proceedings need to commence, such as those stipulated in the Limitation Act 2005.

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.

A common law claim may affect other entitlements

Workers with a permanent whole of person impairment of at least 15% and less than 25%
There is a cap on common law damages if you have a permanent whole of person impairment of at least 15% and less than 25% – 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% of the amount of weekly payments to which you would otherwise have been entitled
  • for the second three months, you will receive 50% 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%
If you have a permanent whole of person impairment of at least 25% 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.