Common law claim for damages
A person injured at or because of their work may have a right to sue their employer 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.
You need to complete and submit ‘Form A: Application for common law damages’.
The application must include all of the following documents.
- An affidavit that describes how the injury happened and its effect on you.
- Medical reports relevant to your claim.
- Tax returns or proof of earnings for the 3 years before your injury to the date of your application
- A signed medical authority form (Form D)
- A statement of claim.
More information about required attachments can be found in Part E of the application form.
This form allows the release of the medical information relevant to your application. This is so your application can be assessed on behalf of Worksafe.
Applications must include the required documents outlined in steps 1 and 2. If not, they will be returned to you for amendment or suspended as per Ministerial Direction 19.
If your employer is not a self-insurer, the application and supporting documents must be addressed to the Director, Dispute Management Division, WorkSafe Victoria.
You need to submit it using one of the following methods.
- By electronic submission on the Common Law Hub.
- By registered mail, addressed to PO Box 279, Geelong VIC 3220.
- By hand delivery to head office at 1 Malop Street, Geelong VIC during normal business hours.
If your employer is a self-insurer, you need to give them the application and documents.
- By electronic submission on the Common Law Hub.
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.