A common law claim has been made. What next?

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We manage common law claims within a framework that outlines the legislative and customer service standards to be applied to all claims. This framework continues to develop over time with feedback from stakeholders. If you have any comments or suggestions please contact us.

The average common law claims takes up to 12 months to resolve, but if the claim proceeds to court the process will take longer. 

Our framework

Resolution

  • We must resolve claims for the most appropriate amount at the earliest possible opportunity.
  • We are a model litigant—fair but firm.
  • We make appropriate decisions that are sustainable and justified.

Customer service

  • We have ongoing effective communication with all stakeholders.
  • We deliver excellent customer service by:
    • contacting employers at least every month
    • contacting employers before all major milestones and seeking your opinions before decisions are made
    • making contact verbally or face to face using site visits if appropriate
    • being flexible in how we work with employers so they trust us and feel involved in the process.

The common law process

Pre proceedings

Pre proceedings is the initial phase of the common law process; 'pre' meaning before litigation. The following outlines a typical pre proceedings process.

  1. A notice of claim for damages (NOC) is lodged with both WorkCover and the employer. We review compliance of the NOC to ensure all relevant information is provided and then contact both:
    1. the employer to discuss the claim and management process, and to obtain any information the employer may have regarding the injury and/or worker
    2. the person making the claim (usually the plaintiff solicitor) to discuss the claim, compliance of the NOC and identify claims for informal negotiation.
  2. The WorkCover representative will review the statutory file and determine the best management plan for the claim.
  3. WorkCover uses the information obtained from the employer as well as reports and communications recorded on the worker's statutory claim to investigate.  Additional investigations may take place depending on the claim specifics, for example a medical review or referral to a factual investigator to obtain witness statements.
  4. We will release all relevant information to the plaintiff solicitors as it is received. This process is called disclosure and is an obligation of both parties.
  5. Within six months of receiving the NOC, we are required to make a decision on liability (whether the employer was at fault). We will always contact the employer and plaintiff solicitor to discuss this decision and try to make the decision as early as possible.
  6. At this point WorkCover is usually in a position to make an offer of settlement.
  7. If a claim is unable to settle informally, WorkCover and the plaintiff solicitor will proceed to compulsory conference within three months of WorkCover’s liability decision. Employers will be invited to attend these conferences. The conference is an opportunity for all parties (including any other involved party, for example host employer, manufacturer of equipment etc) to meet and discuss the claim facts, who should be held liable (at fault) and how much the claim is worth.

If the claim settles, that is the injured worker agrees to a settlement figure, they will sign an agreement that prevents them from making any other claims relating to the event at work and keeps the terms of the settlement confidential.

If an agreement to settle is not reached, all parties must exchange mandatory written final offers, which are open for 14 days.

A worker has 60 days from the date of the settlement conference to commence litigation.

Litigation

All litigated claims are managed by a WorkCover panel solicitor—an external solicitor who has tendered to undertake work for WorkCover; however, a WorkCover employee will continue to oversee the process and contact employers regularly regarding progress. 

  1. If the claim does not resolve following the compulsory conference, the injured worker can commence court proceedings by serving the employer and WorkCover with a claim and statement of claim (SOC) within 60 days of the conference.
  2. Within 28 days of the service of a SOC, WorkCover will file a:
    1. notice of intention to defend and defence, and
    2. statement of expert and economic evidence (which outlines the evidence to be used to defend the case).
      Any other parties involved in the claim must also file a third party claim and statement of claim. (Third party proceedings and procedures are governed by the Uniform Civil Procedure Rules.) Usually this marks the close of pleadings.
  3. As with the pre proceeding phase, full disclosure must take place. This occurs through the delivery of a list of documents within 28 days after the close of pleadings.
  4. Within 28 days of close of pleadings, the plaintiff must serve a written statement of loss and damage that clearly details the amounts being claimed for damages.
  5. Wherever possible mediation is attempted, which should be convened no later than six weeks after the close of pleadings.
  6. If the claim is unable to be resolved at mediation, WorkCover will deliver a request for trial date and the case will be set down for trial.
  7. The trial will then take place on a date set by the Court, after which judgment will be given.