Injuries on or after 1 July 2003

Time for bringing action

The Limitation of Actions Act 1974 states that an action for damages for negligence, trespass, nuisance or breach of duty, which consists of or includes damages for personal injury or injury resulting from the death of any person, must be brought within 3 years from the date on which the cause of action arose.

Compliance

WorkCover must advise the injured worker whether a Notice of Claim for Damages is considered compliant within 14 days of receiving the Notice of Claim for Damages. If it is not compliant, WorkCover must specify the areas of non-compliance and allow a minimum of 14 days for the injured worker to remedy the non-compliance (refer section 278 of the Workers’ Compensation and Rehabilitation Act 2003).

Liability notice

WorkCover must give the injured worker a notice about liability within six months (three months for a worker with a terminal condition) of receiving a compliant Notice of Claim for Damages. In certain circumstances WorkCover must make a counter-offer (section 281). If WorkCover makes an offer or counter-offer, the injured worker must respond in writing within 14 days (refer section 281).

Compulsory conference

Before the injured worker starts a proceeding for damages, there must be a conference of the parties. Any party may call the compulsory conference and it must be held within three months after WorkCover gives the injured worker a written notice under section 281 of the Workers’ Compensation and Rehabilitation Act 2003. However, if the parties agree the conference can be held at a later date.

At least seven days before the compulsory conference is to be held, each party must give each other party:

• copies of all documents not yet given to the party that are relevant and required to be given for the claim
• a statement verifying that all relevant documents in the possession of the party or the party’s solicitor have been given as required
• if the party has legal representation, a certificate (a ‘certificate of readiness’) signed by the party’s solicitor to the effect that the party is ready for the conference.

The solicitor representing the injured worker must provide them with:

• a written report setting out costs incurred to date
• an estimate of extra costs to be incurred through the conference
• an estimate of net damages if the matter proceeds to trial or if the matter settles without proceeding to trial
• the cost consequences to the party of proceeding to trial where the damages awarded are more or less than the injured worker’s final offer.

Final offers

If the claim is not settled at the end of the compulsory conference, WorkCover and the injured worker must exchange final written offers. Those offers must be open for at least 14 days. Legal proceedings cannot be commenced within this time (refer section 292).

Commencing proceedings
If a claim is not resolved during the pre-proceedings process, the injured worker may commence proceedings as provided by the Uniform Civil Procedure Rules.

The Claim and Statement of Claim must be served on the employer within 60 days of the compulsory conference and on WorkCover within 30 days of the employer being served (refer section 300).