Common Law Claims

IN THIS SECTION:

NEGLIGENCE

Common Law Negligence claims are words often used by lawyers to describe a person's right to sue an employer or some other person for injuries sustained in an accident.
When you are injured at work, the right to sue arises once you receive a Notice of Assessment.
To be successful with a claim for damages at common law you have to prove negligence.
To prove negligence you must show:
- Your employer owes you a duty of care;
- Your employer breached that duty of care;
- Causation - that is that the breach of duty of care caused your injuries.
It is clear at law that an employer has a duty to take reasonable steps to guard its employees against reasonably foreseeable risks of injury.
The more difficult issue is whether that duty of care has been breached. In advising you in relation to this, your solicitor will consider the system of work implemented at the time of your injury and whether there was an alternative/better/safer system that could have been used and what steps could have been taken to avoid the injury.
The breach of duty must cause the injury. Sometimes people have a pre existing condition which is aggravated by an accident. If this is the case, then an employer will be liable for the extent of the aggravation only.

Compensation or damages is divided into categories called heads of damage. Each head of damage is assessed separately by the court. The usual heads of damage which are assessed by your solicitor and/or ultimately a Judge are:
- Pain and suffering;
- Loss of income in the past;
- Loss of earning capacity/loss of income in the future;
- Loss of superannuation entitlements;
- Care and assistance - the ability to recover this particular head of damage is limited by legislation;
- Special damages - out of pocket expenses incurred in the past;
- Future special damages.
Your solicitor will assess each particular head of damage relevant to your injury and will advise you accordingly.

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MITIGATION OF DAMAGES

Each injured worker who proceeds with a damages claim has a duty imposed by law to mitigate his/her loss. That is, he/she must actively seek treatment or return to work when it is recommended and undertake all required rehabilitation.

If you do not take steps to mitigate your loss, then statutory WorkCover benefits are likely to be suspended and in relation to a damages claim, a Judge can reduce the amount of damages he/she will award as a result of a failure to mitigate.

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PRE-COURT PROCEDURES

Once you have provided instructions to bring a claim for damages for personal injuries against your employer or other persons, the Workers’ Compensation and Rehabilitation Act 2003 provides a series of procedural pre Court steps which must be completed before legal proceedings can be commenced in Court.
These steps are aimed at streamlining the litigation process to ensure claims are dealt with quickly and cost effectively.

Notice of Claim

The Notice of Claim is the first step in the process.
The Notice contains detailed information about the circumstances of the accident, injuries sustained, worker’s pre-accident employment history, pre-accident health etc.
The Notice must have attached to it copies of your financial records for the three years preceding the accident, copies of all medical reports received, copies of all documents supporting out of pocket expenses etc.
The Notice must state the basis for the claim in negligence, if any liability is admitted and it must also contain a genuine offer to settle a claim.
The Notice of claim is an onerous document which your solicitor will take you through. Detailed instructions must be obtained from you by your solicitor so the form is properly completed. If the form is not completed properly then WorkCover will reject the form as being non compliant. See details below.

WorkCover's Response

Within 10 business days of receiving the Notice, WorkCover must advise:
- If the Notice of Claim complies with the Act;
- If it is not so satisfied, it must identify the non-compliance and whether it waives compliance;
- If there are issues of non-compliance, it must allow a period of at least 10 business days for you to respond to the issues of non compliance or to show that you have taken reasonable steps to remedy the non compliance.
This response to the Notice of Claim by WorkCover will be provided to your solicitor in writing. WorkCover will not write to you regarding these compliance issues. Your solicitor is the best person to deal with and resolve these issues so there is no delay in progressing your claim.
Your solicitor will provide the response on your behalf and WorkCover has another 10 business days in which to respond. WorkCover’s next response can be any of the above responses.
If WorkCover does not respond within the 10 business day period then the Notice of Claim is deemed to be compliant.
The parties may not be able to sort out these compliance issues and if these are not resolved, a claim cannot proceed.
An application to the court may be needed to resolve these issues. This is why your solicitor is the best person to look after your claim.
Once compliance issues are resolved or waived, (this is known as the date of compliance) then WorkCover will notify your employer of the claim.
Within six months of the date of compliance or the waiver of compliance, WorkCover must give its formal response under Section 281 stating:
- Whether liability is admitted, denied or whether it intends to raise issues of contributory negligence;
- Whether it accepts or rejects any offer of settlement;
- Where possible an offer to settle should be made.
- And it must provide copies of all reports in its possession.
The injured worker and WorkCover must during this period also exchange all relevant documents relating to the circumstances of the accident, the worker’s injury and prospects of rehabilitation.
You may also be requested to undergo an independent medical examination so your injuries can be assessed. This assessment is different to any examination you have previously undergone for the purpose of receiving statutory benefits, as it considers the impact of your injury on work and need for further treatment in the future.
Once the Section 281 Notice is received, a conference must be held within three months.
This conference is arranged with a view to trying to resolve the claim.
The conference is held at a time and place agreed upon by the parties and it may be held in the presence of a mediator.
Certain documents need to be exchanged by the parties prior to the compulsory conference. Some of these are:
- a statement that all relevant documents in each party’s possession or the party’s lawyer’s possession have been provided;
- particulars of the legal representation;
- a Certificate of Readiness signed by each party stating that the party is ready for conference.
- You must also receive a financial statement detailing your legal costs payable up to the completion of the conference, the legal costs if your matter proceeds to trial, the further estimated legal costs and net damages if your claim is settled without proceeding to trial and the relevant cost consequences applying in relation to the offers made.
At the end of the conference, if the matter cannot be settled, you and WorkCover must make a written final offer. This offer must remain open for 10 business days and proceedings cannot be started while the offer is open.
Once the 10 business days has expired, proceedings can be filed in Court and a copy of the offer is also filed in the Court in a sealed envelope.
This offer is read only after the trial and a Judgment has been given to determine what costs if any will be awarded to the parties.

The parties can agree to a structured settlement.
A structured settlement is an agreement providing for the payment of all or part of an award for damages in the form of periodic payments funded by an annuity or other agreed means.
Any structured settlement must be approved by the Court.

A Court cannot award exemplary or punitive damages against WorkCover.
A separate Judgment can be given for such damages against the employer.

The amount of a written final offer and the amount of the Judgment ultimately given, determines what costs if any an injured worker will receive.
To be entitled to any costs, the worker must be successful with the claim.
Different costs regimes apply to different types of WRI’s.

WRI of 20% or More, or Dependency Claim

Costs where the written final offer is made by injured worker

If the injured worker makes a written final offer that is not accepted by WorkCover;
The worker obtains a Judgment which is more than the written final offer; and
The Court is satisfied the worker was able to carry out what was proposed in the written offer,

then the Court must order WorkCover to pay the injured workers’ costs on an indemnity basis.

Costs where the Written Final Offer is made by WorkCover

If WorkCover makes a written final offer that is not accepted by the injured worker;
The amount of damages is less than the written final offer; and
The Court is satisfied WorkCover was able to carry out what was proposed in the written final offer,

then WorkCover will pay the injured workers’ costs on the standard basis up to and including the day of service of the written final offer and thereafter the injured worker pays WorkCover’s costs on the standard basis. (What are standard costs see below)

WRI of Less than 20% or No WRI

If the injured worker or WorkCover makes a written final offer that is refused and:

If the amount of damages is equal to or more than the injured worker’s written final offer, then WorkCover must pay the injured worker’s costs on a standard basis from the day of the written final offer;
If the amount of damage award is equal to or less than WorkCover’s final offer, then the injured worker has to pay WorkCover’s costs on the standard basis from the day of the final offer;
If the damages is less than the worker’s written final offer but more than WorkCover’s written final offer then each party pays their own costs.

Once you instruct one of our legal team and sign the appropriate letter of retainer and Client Agreement, we will commence investigations into your claim and carry out all necessary work on your behalf.
We will ensure that you claim is thoroughly investigated so you can be assured that you are receiving the best advice.
We will not waste your time and money by carrying out unnecessary investigations.
We will only do what we need to do to provide our expert opinion.

In litigation, ie a matter where one person is bringing a claim against another there are occasions where you may recover some of your legal costs from another party.
Sometimes you will not recover any costs. Often a piece of legislation imposes this.
If you lose your case you will not recover any costs either.
In other circumstances a defendant may have to pay your standard costs. In other cases a defendant may be ordered to pay your indemnity costs.

Costs are separated into 2 categories. Firstly there are indemnity costs. These are the costs that your solicitor will charge you for all the work he or she has performed for you.
Where you have signed a client agreement these costs will be calculated in accordance with that agreement.
They are the entire costs of the action.
If you obtain this costs order then generally you will not be out of pocket for your legal costs as the other party will have to pay them.

Standard costs are often described as the costs associated in obtaining the essential information for a claim and carrying out only the essential work needed to litigate a claim.
Often solicitors will need to carry out investigations to find some information that ultimately is not used, notwithstanding that at the time the information was sought it was necessary. This can occur when circumstances change or information in relation to your claim needs to be altered or updated.
This information is therefore no longer essential to the litigation.
The costs the solicitor incurs and his/her time spent obtaining this information is not recoverable from the defendant.

Therefore if you receive an order that the defendant pay your standard costs, or legislation states that a defendant has to pay these costs, this means that the defendant will pay and contribute some money towards your legal costs. However there will be a portion of costs which they do not have to pay for and which you will have to pay out of any damages you receive.

The amount of standard costs you may recover from a defendant is often limited by the legislation that regulates your claim. For example under the Workers’ Compensation and Rehabilitation Act and where your injuries are assessed as being less than 20% then the most a defendant will pay towards your legal costs is $2,500.00 plus some outlays.
In other cases the amount a defendant has to pay for standard costs is a lot higher.

As your solicitor we will always keep you informed of costs and whether you can expect to receive some contribution towards your costs from a defendant.
Keeping you informed is imperative so you can consider all offers made to you during the course of litigation, that way ensuring that you are making an informed decision based on the expert advice you have been given.

Proceedings can only be filed in court once the pre-court procedures have been completed.
The last step in the process is the exchange of written final offers at the settlement conference/ mediation and the expiration of 14 days.
Briefly the steps taken in court are:
1. filing a claim and statement of claim;
2. receiving a notice of intention to defend and defence;
3. delivery of a list of documents by each party;
4. service of the plaintiffs statement of loss and damage;
5. service of the defendants statement of expert and economic evidence;
6. alternative dispute resolution;
7. request for trial;
8. allocation of a trial date at callover;
9. trial.

During this process the injured party may undergo another independent medical examination.
The court process from filing and serving a Claim and Statement of Claim to the allocation of a trial date can take about 12-18 months. It can then take several months for a judgement to be handed down by the Judge.
If there are multiple parties involved, the process may take longer to complete.

"Litigation - When Does A Cause Of Action Arise?" - May 2006

"Time Limits for Workers Compensation - Beware" - March 2004, Revised Feb 2006

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