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What is a common law negligence claim?

After a workplace injury, you’re automatically entitled to workers compensation benefits. However, if your injury was caused by your employer’s negligence, you might also have a common law claim. It’s also known as a common law damages or a work injury damages claim.

The majority of common law cases relate to physical injuries, but you can also claim for psychological injuries like anxiety, depression and PTSD.

Other types of common law claims

While this page deals only with workplace common law claims, there are many more scenarios where you can claim compensation for negligence. These include:

If you were injured on the road because of another driver’s carelessness, you may have a motor accident claim. Car drivers, passengers, pedestrians and cyclists are all entitled to compensation, as well as people who witness a death or lose family members in a motor accident.

if you were injured on public, private or rental property because of someone else’s negligence, you may have a public liability claim. This includes slip-and-falls in supermarkets, gyms and hotels, as well as accidents during recreational activities, on footpaths and in parks.

If you were injured by a medical professional’s actions or their failure to act, you may have a medical negligence claim. This includes surgical errors, misdiagnosing conditions, and failing to advise patients of medical risks.

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Common law vs workers compensation claims

While both types of claims provide support while you’re unable to work, they differ in key ways:

Workers compensation claims

  • They operate on a ‘no-fault’ basis, so you can receive compensation regardless of who is to blame for your injury (as long as it happened at work).
  • You'll get weekly payments to cover your lost income and medical bills.
  • To continue receiving payments, you need to meet all insurer requirements and provide ongoing evidence that you're unable to work.

Common law claims

  • You must prove that your employer acted negligently, leading to your injury.
  • You can receive substantial lump sum compensation to cover lost income and superannuation, including past wages and future earnings.
  • There are no further insurer requirements to fulfil once your claim is finalised.

Can I make a common law negligence claim?

You must meet four criteria to make a successful common law negligence claim:

All employers have a ‘duty of care’ to their employees, meaning they must take reasonable steps to protect you from harm. This duty can be breached through a negligent action or failure to act. For instance, requiring you to lift something heavy without proper equipment is a negligent action, while not intervening if you’re being bullied at work is negligent inaction.

To determine if there has been a breach of duty of care, the ‘reasonable standard of care’ test is applied. This test evaluates whether another employer with the same qualifications and experience, under the same circumstances, would have acted similarly.

Unfortunately, it’s not enough that your employer breached their duty of care — you need to show that the breach caused your injury. This involves proving two key points:

  1. Your injury must be a direct result of your employer’s negligence.
  2. The injury was a ‘reasonably foreseeable’ consequence of your employer’s action or inaction.

To make a common law claim, you need to have a minimum of 15% Whole Person Impairment (WPI). This is assessed using guidelines from the State Insurance Regulatory Authority (SIRA). The assessment looks at:

  • Whether your condition has reached maximum medical improvement, meaning it’s stable and unlikely to change even with treatment.
  • The extent of your injury or condition and its impact on you.
  • Whether your impairment is permanent.
  • The degree of permanent impairment caused by your injury.
  • Any prior injuries, pre-existing conditions, or abnormalities that might have contributed to your impairment.

An independent, registered medical practitioner with relevant experience and qualifications will perform your assessment.

Importantly, not all states have the same minimum impairment threshold. In some states like Queensland, there is no minimum percentage. While in others, such as Victoria, the minimum WPI increases to 30%.

A statutory lump sum benefit is an additional payment you may receive alongside your weekly workers compensation payments. To qualify in NSW, your Whole Person Impairment (WPI) must be at least 11% for physical injuries or 15% for psychological injuries.

Before making a common law negligence claim, you must first receive all your statutory lump sum benefits. To determine your eligibility, refer to our guide to permanent impairment benefits.

How much compensation will I get?

Common law claims can result in substantial lump sum payouts, often reaching hundreds of thousands or even millions of dollars. In NSW, depending on your age and circumstances, you could receive up to $2 million.

The amount of compensation you receive depends on several factors, including:

  • The type and severity of your injury.
  • How your injury impacts your ability to work.
  • Your future work capacity.
  • Your future employability.

Additionally, you may have a Total and Permanent Disability (TPD) claim if your injuries are more permanent. As part of our comprehensive service, we thoroughly examine your situation to identify all possible claims, often resulting in substantially greater compensation than your common law claim alone.

Frequently asked questions

The duration of your claim depends on several factors, including:

  • The complexity of the case.
  • The time required for your condition to stabilise.

Generally, most common law claims take between 6 months to a year to complete after your injury stabilises. However, we have developed strategies to fast-track these claims, and some can be finalised in as little as 4 months.

Once we know the specifics of your case, we will provide a more accurate time estimate.

You have up to three years from the date of your injury to file a common law claim.

If you miss this deadline, you can request an extension with a valid reason. These can include:

  • Your injury required more than three years to stabilise.
  • You were unaware of your eligibility to file a common law claim.
  • Your injury worsened gradually over time.

Over the years, our expert lawyers have successfully resolved many delayed claims. Contact us today for free advice on getting a time limit extension.

No, unfortunately, you can only make a common law or workers compensation claim.

A successful common law claim will end your entitlement to workers compensation benefits. This means you will no longer receive weekly wage-replacement payments or coverage for medical, travel, and rehabilitation expenses.

However, common law claims often result in a substantial lump sum settlement, enough to cover all your expenses and pain and suffering. Unlike workers compensation, you won’t have ongoing insurer requirements to meet.

It’s important to note that any weekly payments you’ve already received may be deducted from your common law settlement.

To make a successful common law claim, you must prove that:

  • Your employer was negligent, and
  • Their negligence caused or contributed to your injury, making them ‘at fault’.

Examples of employer negligence include:

  • Failing to provide protective clothing, footwear, or safety equipment.
  • Allowing workers to perform heavy and/or repetitive lifting.
  • Wet or slippery floors causing slip and fall injuries.
  • Inadequate supervision or training.
  • Bullying and harassment resulting in psychological injury.
  • Psychological harm from exposure to traumatic situations.
  • Permitting operation of unsafe equipment or machinery.

We have built an extensive network of workplace injury experts over the years. As a result, we have never lost a negligence case against an employer.

How much will my claim cost?

The cost of your claim depends on how complicated it is and how long it takes to resolve. But no matter your situation, our No Win No Fee guarantee keeps you protected. There are no upfront fees and you only pay if we win your claim. It's that straightforward.

  • No financial risk: you won't pay a cent upfront. We cover all costs, from expert evidence to legal fees and administration. If your claim doesn't succeed, you won't receive a bill from us.
  • Fixed fees: we provide a clear breakdown of our charges before we begin. No surprises, no unexpected costs.
  • Save on court costs: we specialise in settling claims through out-of-court mediation, saving you the hassle and expense of court proceedings.
  • Lower legal fees: in most cases, we recover the majority of our fees from the opposing party. This means you'll receive a larger portion of your total compensation.
  • 30-day risk-free trial: try our services risk-free for 30 days. If you decide to cancel during this period, you won't owe us anything.
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Meet the team

Our team use their extensive experience to increase your chances of success. We’ve won many awards for our work, including ‘Compensation Law Firm of the Year 2020 GBM Global Awards.’

Leon Monaco
Managing Partner
  • English
  • Workers Compensation, Motor Vehicle Accidents, Public Liability, Medical Negligence
Vanessa Azzi
Senior Associate
  • English, Arabic
  • Motor Vehicle Accidents, Public Liability, Work Injury Damages
Medea Hanna
Senior Associate
  • English
  • Workers Compensation, Comcare, Dust Disease
Sana Wais
Associate
  • English, Farsi, Dari
  • Workers Compensation
Jamie Palivos
Solicitor
  • English
  • Workers Compensation
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Monaco Lawyers helped me to receive compensation for an ongoing injury I sustained after I was simply driving home from work and was driven into head on by an incompetent and negligent driver who I believe was texting at the time of the accident.

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Jamie and her team at Monaco made my tough claim easier to handle.

My workers compensation claim was a nightmare with secondary injuries being denied, and the insurer trying to deny my claim throughout the process. Jamie and her team from Monaco Solicitors have been brilliant in their professionalism and management of my claim.

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Dealing with workers comp issues? Monaco, especially Jamie and her team, can really help you out.

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I am very happy with the service I received from Monaco Solicitors in regards to my worker’s compensation claim. Very professional, kept me up to date throughout my claim, with a great result at the end. I highly recommend them for your workers compensation matters.

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My brothers and I had a complicated claim. I found Ben Ralph to be very helpful, himself and Sally Sutton worked hard for just over a year to get through our claim. They achieved a good result and got the monies paid to myself and my brothers.

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How we can help you

For over 25 years, we’ve helped injured workers secure the compensation they deserve. Here’s what we do as part of our comprehensive service:

  • Explain your rights and the compensation you’re entitled to.
  • Ensure you receive the necessary support, treatment, and time off work.
  • Gather strong evidence to prove your employer was negligent.
  • Negotiate with your employer’s insurer on your behalf.
  • Apply pressure to the insurer if they’re unfairly delaying your claim.
  • Appeal the decision if your claim is rejected.
  • Identify additional entitlements like income protection or a TPD payout.
  • Secure the maximum compensation possible for your case.

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