Making a common law claim
Find out how to make a common law claim, what it involves, what you need to prove and the steps in the process.
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When you may start a common law claim
When you make a common law claim, you're saying your injury happened because your employer didn’t provide a safe work environment and breached their duty of care to you.
In a common law claim, it's up to you to prove this caused your injury and the losses caused by your injury, including income.
The decision to make a common law claim
If you decide to make a common law claim, your ‘no fault’ statutory claim (if you made one) will end.
Contributory negligence
We may consider whether you contributed to your injury happening in some way.
The legal term for this is called contributory negligence.
If proven, this may impact the amount of damages that are paid.
Damages
Damages is an amount for total loss including pain and suffering, past and future treatment costs and past and future loss of earnings.
When a common law claim pays you for this loss, that payment is called damages.
How open communication helps
We encourage open and supportive communication between workers and employers.
Employers can help by offering a genuine and caring apology or expression of regret.
This can show understanding and support and it is not an admission of fault.
Before you make a claim
It is important you understand the common law process.
Documents you may need
You may be asked to share different documents to help show what happened, how you were injured, and how your injury affects your work and daily activities.
Documents we may need include:
- medical records
- tax returns
- employment records
- training or qualification records
- witness statements
- disclosure documents.
Submitting your common law claim
You or your lawyer will need to submit a notice of claim for damages.
This document explains your claim and what you believe your employer did wrong.
It usually needs to be submitted within three years of the date you were injured.
A lawyer will normally complete and lodge this paperwork for you.
They will also guide you through the common law claim process.
At this stage, you can include any extra injuries that weren’t part of your original workers’ compensation claim.
No fault workers' compensation claims
When you make a common law claim, your workers’ compensation claim (if you had one) will stop.
At that point, a doctor or the Medical Assessment Tribunal (MAT) may assess your injury.
They will decide if you have a permanent impairment and how severe it is.
This is called your degree of permanent impairment (DPI).
Based on this assessment, we may offer you a lump sum payment in a Notice of Assessment (NOA) letter.
Options with a Notice of Assessment
Once you receive your NOA letter, read it carefully and think about what you want to do next.
You have three options:
- accept the offer
- reject the offer
- delay (defer) the offer and decide later.
Your options will depend on your DPI percentage, which is grouped into two categories:
- less than 20%
- 20% or more.
Common law claims without a statutory claim
You might choose to make a common law claim without using the statutory claims process.
If you do this, your claim will still go through the usual investigation and review steps, but you won’t receive weekly compensation or medical expenses or a lump sum offer.
If your claim is accepted, you’ll get a Notice of Assessment that tells you your DPI.
After your claim is submitted
After you make your damages claim, you’ll move into the pre‑proceedings phase.
We will review your claim to understand what happened and if your employer could be responsible for your injury.
You may need to attend more medical appointments.
After the investigation, you’ll begin negotiating an outcome.
If an outcome can't be negotiated, you may choose to take the claim to court.
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