Common law claim for damages

About common law

If you have a work-related injury or illness, you may have the right to sue your employer for damages. Damages are a lump sum payment for pain and suffering and, depending on your situation, may also include potential past and future loss of income.

To be entitled to sue for damages, your injury must be ‘serious’. This is defined in Victoria’s workers compensation legislation and through court decisions. The injury must also be due to the fault or ‘negligence’ of someone other than you.

Application process

Ministerial Directions outline the process and requirements for common law applications. The current directions commenced on 1 November 2024.

You or your legal practitioner must follow this process.

What happens next

WorkSafe will email you or your legal practitioner directly to acknowledge receipt of the common law application. This email will have a copy of the letter addressed to you attached.

WorkSafe will then assess your application.

WorkSafe or the self-insurer have 120 days from receipt to respond to a common law application in writing. They will let you know if your injury is considered serious and provide supporting information.

If your injury is considered serious

When a serious injury has been established, the parties must go to a conference to discuss the application. An offer of settlement may be made where appropriate. After the conference, WorkSafe or the self-insurer must make an offer in writing. This is called a ‘statutory offer’. It may not be an offer of money.

If you don’t accept the offer, your legal practitioner must make a written counter offer. This is called the ‘statutory counter offer’.

If there’s no resolution after exchange of the written offers or the following negotiations, you can start court proceedings for damages. Make sure to do this in the correct time frame. The legislation has strict time limits for issuing proceedings. This is not earlier than 21 days, and not more than 51 days, after the statutory counter offer has been made.

If your injury isn’t considered serious

If WorkSafe or the self-insurer considers you don’t have a serious injury and you disagree, you can apply to the County Court of Victoria (County Court) for a determination.

Legal costs

The legislation sets out when legal costs are payable. It also sets out how much WorkSafe or a self-insurer can pay for legal costs.

If WorkSafe or the self-insurer is required to pay some of your costs, specific Legal Costs Orders set out the amounts for pre-litigated claim processes and court proceedings about serious injury.

In damages proceedings, the statutory offer and statutory counter offer determine if one party must pay the other party’s legal costs. The courts also have rules (Scales of Costs) that set out the costs.