How damages are calculated and paid

What are common law damages?

Common law damages is a payment made after a common law claim.

It's paid if:

• an employer is found to have breached their duty of care to a worker, and  
• a worker has experienced an injury that's caused them loss as a result of that breach.

The payment of the damages is made once a settlement is reached or a trial verdict is given. 

This can happen through negotiation or by going to court.  

What common law damages may cover  

Pain and suffering  

The amount of damages given for pain and suffering is formally defined in Queensland’s workers’ compensation legislation. It depends on the type of injury and the severity.

Economic loss  

You may be paid damages for past and future wages.  

Your payment may also consider employer funded superannuation contributions.

Calculations can be based on lost wages up to retirement age.

This type of loss can include:

• not being able to work
• having to work in a role with a lower salary
• not being able to do full hours
• not being able to do overtime. 

Even if you're able to go back to work in your pre-injury role without loss of income, you may still be entitled to a ‘global amount’ for any problems you might have in getting another job in the future caused by your work-related injury.

If your doctor says you can return to your previous job but not for as long as you had previously planned, your common law damages may include money to cover lost income for the years until you reach retirement age. 

Past and future medical costs 

If you're assessed as requiring ongoing medical treatment, your past and future medical costs may be included in your damages claim.

This may include: 

• future surgery
• medically recommended therapies
• pharmaceutical items (like pain medication, bandages or gels)
• travel expenses
• past or future paid care, in some cases.

How we calculate common law damages

The damages amount will consider:   

Your future employment

Based on:

• your likely remaining working years; based on your age and the retirement age
• the availability of employment; based on your current employment situation and the availability of similar work in your area
• your degree of impairment; based on independent medical examinations and reports. 

Your income  

Based on:

• your past and current work history
• tax and financial documents, including copies of:
  • PAYG Summaries
  • previous tax returns
  • Australian Tax Office Notice of Assessments  
• Centrelink records
• employer records.

Your expenses

Based on:

• medical records
• independent medical examinations and reports
• Medicare and Pharmaceutical Benefits Scheme (PBS) records
• tax invoices and receipts for expenses.

You may also receive legal costs. This will be based on the law and will depend on the degree of your permanent impairment.

How common law damages are paid

After the amount of common law damages is confirmed, we'll check if you owe money to other organisations.  

This can include money already paid to you by us that may need to be refunded.  

We're required by law to work with Services Australia to get information from the following organisations:

• Medicare
• Centrelink
• Child Support Agency (CSA).

We may also need to refund the National Disability Insurance Agency (NDIA).

How legal fees are paid  

Once your claim has been finalised and any deductions have been paid, your lawyer’s legal fees will be deducted from the damages you receive.

How settlements are transferred to you

We'll need a written agreement signed by all parties to pay the damages.  

Your lawyer will explain the details of the agreement.

By signing this agreement, you confirm that you can’t ask us or your employer for any more money for this work‑related injury.  

The agreement is confidential.  

Once any refunds have been paid, we can then pay the settlement to your lawyer’s trust account to be held on your behalf before it is paid to you.