Common law application for damages
Workers injured in their employment on or after 20 October 1999 may have a right to sue for damages for those injuries. Some workers with injuries before 12 November 1997 may also be able to make a common law claim.
To be entitled to sue for damages the injury must be 'serious', as defined in Victorian workers’ compensation legislation. The injury must also be caused by the fault of someone other than the worker.
Before you can start court proceedings claiming damages, you must make a common law application for damages and comply with other requirements in the legislation.
Ministerial Directions set out the process and requirements for common law applications. The current Directions were made on 21 April 2016. More information about what is required is in the legislation and in Common Law Ministerial Directions.
- Complete the application form
Attach medical reports and affidavits listed in Part E of the form.
- Complete the medical authority form
- Give the application to WorkSafe or a self-insured employer
Future electronic application system
WorkSafe is preparing to introduce an online common law application system.
Ministerial Direction 8.6 provides that where WorkSafe gives notice that it will accept service of applications through an electronic communication, and where the published requirements of the Authority are complied with, the application will be taken to have been properly served in accordance with those directions.
How WorkSafe acknowledges your application
WorkSafe will write directly to you to advise when we received the application, and of our commitment to efficiently resolve it.
We will also acknowledge receipt of the common law application by email to your solicitor. This email will attach a copy of the letter addressed to you.
Resolving your application
WorkSafe or the self-insurer must respond in writing to a common law application, usually within 120 days of receiving it. They must advise if you have a serious injury, and provide supporting information. The legislation and Ministerial Directions have more information about requirements.
If WorkSafe or the self-insurer considers you do not have a serious injury, and you disagree, you can apply to the County Court to make a determination.
Once the parties agree (or the County Court decides) that the injury is a serious injury, the parties must go to a conference to discuss the application. At or after the conference, WorkSafe or the self-insurer must make an offer in writing. This is the ‘statutory offer’. It may be an offer of no money. If the worker doesn’t accept the offer, they must make a written counter offer. This is the ‘statutory counter offer’.
Forms for these offers are attached to the Ministerial Directions.
If the application is not resolved, the worker may then start court proceedings for damages. Most common law applications are resolved before this.
Compensation legislation has strict time limits for making and responding to applications, starting certain court proceedings and the conference and offer process.
The compensation legislation sets out when legal costs are payable. Compensation legislation also affects how much WorkSafe or a self-insurer can pay for legal costs.
If WorkSafe or the self-insurer is required to pay some of a worker’s costs, 2 Legal Costs Orders set out the amounts for:
- pre-litigation claims processes
- court proceedings about serious injury
In damages proceedings, the statutory offer and statutory counter offer are important in deciding if 1 party must pay the other party’s legal costs. For a damages proceeding, the courts have special rules (Scales of Costs) that set out the costs.
Current common law Ministerial Directions and Legal Costs Orders
Previous common law Ministerial Directions and Legal Costs Orders
Ministerial Directions: Common Law
Ministerial Directions: Section 135A
Orders in Council: WorkCover Legal Costs Order 2010
Orders in Council: WorkCover (Pre-Litigated Claims) Legal Costs Order 2010
Orders in Council: WorkCover (Litigated Claims) Legal Costs Order 2010
Orders in Council: WorkCover Legal Costs Order 2001