Workers’ Compensation Claim vs Common Law Claim: What’s the Difference?

It is common knowledge in Australia that if you get injured in the course of your employment, you are entitled to compensation for your injuries. Under the Workers’ Compensation & Rehabilitation Act of 2003, injured employees can get financial assistance after sustaining injuries, the amount of which depends on the severity of the damage and other factors. However, you may not be aware that under certain circumstances, you can also lodge a common law claim after sustaining a work-related injury.

Depending on your situation, you may be eligible to both a workers’ compensation claim and a common law claim—but what requirements should be met? In this guide, we will talk about the difference between them and how you can be entitled to both claims.

Workers’ Compensation Claim

In Australia, workers’ compensation refers to a “no-fault” scheme of compensating employees who have been injured or sick due to work. As a rule of thumb, any injury you sustain whether in the workplace or anywhere else—so long as it is a result of you performing your duties—entitles you to a workers’ compensation. This compensation usually comes in the form of weekly payments, payments for medical expenses and treatments, and rehabilitation costs. If your injury has left you incapable of going to work, the law even entitles you to wages throughout the time you are not fit for work.

What you will love most about this law is that it entitles you to these compensations regardless of whether your injury was a result of your fault or not. As long as you were performing your duties at the time you sustained your injury, you are automatically eligible to benefits.

Common Law Claim

Unlike the workers’ compensation claim, the common law claim is a less known type of claim you can lodge as an injured party. If you have sustained at least a 15 percent permanent Whole of Person Impairment (WPI), you can pursue this claim against your employer for its negligence in causing your injury. Introduced in the District Court of Western Australia, this claim is also a claim for damages, but one important requirement has to be met: You must be able to prove in court that your injury was a result of your employer’s negligence. That is what basically sets it apart from a workers’ compensation claim, which is a “no fault” compensation system—meaning you can lodge it whether or not you’re the one at fault in the accident that had caused your injury.

In a nutshell, you must be able to meet these requirements before you can lodge a common law compensation claim: You need to be at least 15% Whole Person Impairment (WPI), prove the negligence of your employer, and keep your right to pursue common law damages before the termination date—or the date at which your eligibility to pursue common law damages comes to an end. It usually comes a year from the date you pursued a claim for weekly compensation payments from your employer.  

Usually, the common law claim is pursued if an injury is too severe and came as a result of the negligence of the employer. Unlike the workers’ compensation claim, the common law claim takes into account even the personal consequences of the accident and assesses the impact of your injury not only on your present life but your future as well.

At first, you may find the prospect of lodging a common law claim a bit too intimidating. After all, nobody wants the idea of being in the courtroom, face-to-face with the person you want a settlement with. If you got injured as a result of work and are hesitant about pursuing a common law claim against your employer because the thought of being in court scares you, remember that not all common law claims are settled in court. In fact, in most cases, they are settled long before they even reach the court. If you and your employer manage to reach a settlement before the court even has to get involved, then you’re lucky.

Are there limits on common law claims?

Yes, there are limits on this claim, depending on the percentage of your permanent WPI. For instance, if you have a permanent WPI of 15% to 25%, then your compensation will depend on how severe your injuries are. Under the law, the amount payable to employees under this category includes the workers’ compensation payments you have previously received. If you are pursuing this claim against your employer, from the Election date, you are subject to a reduction in weekly payments and your other benefits may be terminated after a certain period. The law states that for the first three months, you are entitled to 70% of the amount of your weekly payments. This is reduced to only 50% during the second three months, and then ultimately ceases after six months.

Meanwhile, it’s a different story if you have a permanent WPI of at least 25%. In that case, you will continue to be entitled to payments and benefits as mandated by the Act. If you fall under this category, the amount of damages you receive does not end after six months since it requires no cap on the amount of compensation to be received by the employee in question.

Conclusion

If you have been injured on duty, you can pursue a workers’ compensation claim regardless of whether you were at fault for your injury or not. However, the same cannot be said when it comes to lodging a common law claim—which is something you cannot pursue unless you are able to establish that your injury was a result of your negligent employer. If you think you are entitled to this claim, it is best to get legal advice from specialists like Perth personal injury lawyers since determining the negligence of your employer is one that requires specialized legal skills. Once you have decided to proceed with your common law claim, find a law firm that can help you assess your claim with no strings attached. Remember, the sooner you lodge your claim, the better.