Throughout much of Australia, people who are injured at work are entitled to “common law” as part of their system’s workers’ compensation scheme.  Access is usually limited according to a person’s level of impairment.  (South Australia and the Northern Territory are exceptions in that they allow no access to common law, while Queensland is an exception in that access to common law is unlimited.)

Unions tend to defend the right of workers to access common law, particularly when there is an end-point to other entitlements.  However, Rosemarie Mackenzie Ferguson, a worker advocate from South Australia, where access to common law has recently been rescinded, takes a different view.

“I am not in favour of Common Law returning to the Workers Compensation Legislation,” Rosemary told RTWMatters. “I firmly believe that the only winners would be the legal profession.”

If you are considering launching a common law claim, it is best to do so with a clear idea about what to expect. This will help you to make an informed decision about the advantages and potential pitfalls of common law claims, and to better prepare yourself for the road ahead.

Potential advantages

Apart from the obvious advantage of a lump sum as recompense for the injury, the main advantage of common law claims is that they allow workers and employers to settle a claim once and for all, and move on with their lives. For people who have been injured at work, this means that there is no ongoing need to produce medical certificates on a monthly basis or meet the other requirements of “live” claims.

It is also possible that individuals who claim common law will end up financially better off than they if they stayed with weekly wage replacements, although there is no guarantee that this will be the case.

If a common law claim is successful, the workers’ compensation scheme may still cover some aspects of treatments, but for the most part contact with the workers’ comp bureaucracy becomes unnecessary. This can be a huge relief for some individuals, as participating in workers’ comp systems can be very stressful.

However, it is important to bear in mind that lodging a common law claim is not a stress-free process either.

The process

Bear in mind that:

• Common law claims usually take between 18 months to two years to settle. There are various steps and assessments along the way, and delays often occur.
• If you launch a common law claim, the WorkCover agent / insurer and the legal firm acting on their behalf is likely to investigate it in some way, such as:
  • Requiring a medical assessment (or several medical assessments) by an independent expert, who will be charged with determining whether you are really injured / ill, and whether this injury / illness is really related to the employer in question;
  • Hiring an investigator to interview you, your colleagues and your boss; and / or
  • Undertaking covert surveillance, to assess whether your actions outside of work align with your purported illness / injury.

Potential pitfalls

One potential disadvantage of making a common law claim is the strain it might place on you. The experiences outlined above can be disheartening and stressful. You might worry about surveillance, and start to feel paranoid that you are being watched. Or, you might feel upset that your employer seems to view you with suspicion, and angry about the fact that people don’t take you at your word.

When waiting for a payout, it is also easy to slip into a mindset where you put the rest of your life on hold. You might start thinking, “There’s $200 000 coming my way, so until that happens, I’m going to sit tight.” However, there is no guarantee that the payout will eventuate, and if you let your normal routines go you are more likely to become depressed and recover more slowly.

Even if your claim is successful, people who receive a large lump sum payment don’t always prosper financially in the long term. Moreover, it is easy to underestimate the costs associated with making a common law claim, as well as the proportion of any payout that will go to your lawyers if your claim is successful. And if you do receive a payout, you’ll most likely be ineligible for Centrelink payments for some time.

Preparing yourself

If you do decide to go ahead with a common law claim, there are things that you can do to make the process easier.

Understand the fee structure of the law firm handling your case. Most will advertise as “no win no fee” but it is worth reading the fine print. In most instances, you will still be liable for the costs of medical assessments and there may be other hidden costs too.

Plan for the future. Given that you may be unable to work, and ineligible for Centrelink payments, it may not be a good idea to spend all of your payout in one go, for example by paying off a mortgage. Make sure that you’ve factored in day to day living expenses for you and your family.

Know what is at stake. Be aware that, in some jurisdictions, if the court decides that your claim is frivolous or vexatious there may be a penalty, for example you may be liable for your employers’ legal costs. This liability varies from jurisdiction to jurisdiction, and in reality is rarely applied.

Don’t let the pressure to prove that you really are injured or ill lead you to ham it up during medical reviews. Your credibility is very important. People often feel the need to “prove” that they really are sick but in fact this is usually counterproductive. In Victoria, for example, we’ve been told that this does serious damage to your credibility and may jeopardise your claim.

Finally, make sure that you don’t let the claim become the only focus of your life. Stay engaged with friends, work, and try to keep up a routine. No payout, no matter how big, is worth your happiness and your peace of mind.