Access to common law against employer?

Types of damages

Statutory threshold(s)

Is election of common law irrevocable?

Cap on damages?

New South Wales

• Yes (modified)
• Known as Work Injury Damages (WID)
• Dust disease sufferers can pursue common law damages against an employer, occupier and/or supplier in accordance with the Dust Diseases Tribunal Act 1987 and also continue to receive their statutory benefits under the Workers’ Compensation (Dust Diseases) Act 1942
• No damages for pure mental harm are available to relatives of an injured or deceased worker unless the relative is also a worker under the Act (s151AD Workers Compensation Act 1987)

• Damages are paid as one lump sum to cover past and future economic loss of earnings only.
• The amount of weekly payments already paid must be repaid out of the money awarded
• Damages can be reduced if the worker’s own negligence contributed to the injury — Part 5, Division 3, 1987 Act

To be eligible to make a claim for WID, three criteria must be met:

1. the work injury is a result of the negligence of the employer
2. the worker must have at least a 15% permanent impairment, and
3. claims for permanent impairment lump sum compensation must be made prior to or at the same time as the WID claim, and must be settled prior to a WID claim being finalised

A WID claim cannot be started for at least six months after the worker gave notice of the injury to the employer, or not more than three years after the date of injury — Part 5, Division 3, 1987 Act

No. If a common law claim is not successful, the worker will continue to receive workers’ compensation under the statutory scheme

No

Victoria

• Yes (limited)
• Access to common law is for workers injured on or after 20 October 1999

• Damages for pain and suffering and/or economic loss may be pursued. There are additional requirements to prove a permanent loss of 40% earning capacity to be able to pursue economic loss damages (s325) — Part 7 Division 2
• If pain and suffering damages are awarded the amount must be reduced by any lump sum impairment benefit paid — s347 Workplace Injury Rehabilitation and Compensation Act 2013

To obtain common law damages, a worker must first be granted a ‘serious injury’ certificate, either:

1. During the impairment assessment process, be assessed as having a WPI of 30% or more (can combine physical and mental impairments), or
2. WorkSafe Victoria or the County Court determines that the worker has a ‘serious injury’ pursuant to the narrative test — Part 7 Division 5.

• A worker has the option of having their WPI assessed first or by-passing the impairment assessment process and relying on the narrative test. Either way, the worker must make a serious injury application and have that application accepted or rejected by WorkSafe Victoria before they can proceed to the next step.
• If the worker’s impairment assessment is under 30% and/or their serious injury application relying on the narrative test has been rejected, the worker has 30 days to issue County Court proceedings for a Judge to determine whether they have a ‘serious injury’ on the narrative test — s335.
• A worker can have a ‘serious injury’ that entitles them to pursue pain and suffering damages only and/or economic loss damages. To qualify for serious injury status for economic loss (if serious injury is determined under the narrative test) the worker must prove they have suffered and will continue to suffer a loss of earning capacity of 40% or more — s335.

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• Damages for pain and suffering must not be awarded if the amount is less than $63,510 — s340
• Maximum amount for pain and suffering damages is $644,640 — s340
• Damages for economic loss must not be awarded if the amount is less than $65,760 — s340
• Maximum amount for economic loss damages is $1,480,660 — s340.
• Amounts shown are as of 1 July 2021, indexed 1 July annually.

Queensland

Yes

General damages based on ISV scale — s306O Workers’ Compensation and Rehabilitation Act 2003

Economic loss (capped at 3 times QOTE — s306I)

No damages available for gratuitous services.

If the worker has a degree of permanent impairment (DPI) of less than 20% the worker must decide to either accept the lump sum payment or seek damages — s189.

Yes

• General damages (pain and suffering) capped at 239.71 times QOTE
• Loss of earnings capped at 3 times QOTE per week for each week of the period of loss of earnings.

Western Australia

Yes (limited)

Damages available for both economic and non-economic loss

Access to common law is based on the worker’s degree of WPI. The threshold for accessing common law is not less than 15% WPI. Secondary psychological, psychiatric and sexual conditions are excluded — Part IV, Subdivision 3.

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• Where a worker has a WPI of less than 25% the maximum amount of damages that may be awarded is $502,279 (indexed annually) — s93K Workers’ Compensation and Injury Management Act 1981
• Unlimited common law is available to a worker with a WPI of greater than 25%.

South Australia

Yes (limited)

Economic loss only

• The Return to Work Act 2014 reintroduced limited common law rights for workers to claim damages from their employer. Damages cannot be awarded against an employer unless the worker’s injury results in whole person impairment of 30% or more or the worker’s death. If damages are recovered no further compensation is generally payable and compensation already paid is repayable (s75)
• In addition, in respect of a psychiatric injury, the injury must primarily be caused by the negligence or other tort of the worker’s employer and an employer is not liable for any consequential mental harm — s71(2).

Yes

No

Tasmania

Yes (limited) — Part X

Damages available for both economic and non-economic loss — ss132 to 138AI, Workers Rehabilitation and Compensation Act 1988

A worker must suffer at least 20% WPI before he or she can commence proceedings for an award of damages or make an agreement to settle a claim for damages — s138AB

Note: loss of foetus that the worker has carried for at least 16 weeks since conception is deemed to be 20% WPI — s71(3).

N/A

Unlimited (provided 20% WPI threshold met)

Northern Territory

s52 - Abolition of certain rights to bring action - …no action for damages at common law shall lie in the Territory…

N/A

N/A

N/A

N/A

Australian Capital Territory

Yes

Unlimited

Nil

No Benefits cease on settlement or outcome in favour of the worker. Benefits received prior to settlement are deducted from the damages settlement to avoid the worker receiving double compensation for the same loss.

Unlimited

C’wealth Comcare

Yes (limited)

Damages for non-economic loss

To have access to common law the employee must first have a successful permanent impairment claim (see s24). Statutory thresholds for accessing common law are outlined in s45 of the Safety, Rehabilitation and Compensation Act 1988.

Yes

Employees are able to make an irrevocable election to institute an action or proceedings for damages for non-economic loss under s45 of the Act. No statutory permanent impairment (s24) or non-economic loss (s27) benefits are payable after the date of such an election. However, a damages award does not affect other entitlements, such as weekly benefits, medical costs etc.

Damages shall not exceed $110,000

This amount is not indexed

C’wealth Seacare

Yes (limited)

Damages for non-economic loss

To have access to common law the employee must first be eligible for a permanent impairment claim. Statutory thresholds for accessing common law are outlined in s55 of the Seafarers Rehabilitation and Compensation Act 1992.

Yes

Employees are able to make an irrevocable election to institute an action or proceedings for damages for non-economic loss under s55 of the Act. No statutory permanent impairment (s39) or non-economic loss (s41) benefits are payable after the date of such an election. However, a damages award does not affect other entitlements, such as weekly benefits, medical costs etc.

Damages shall not exceed $138,570.52

This amount is not indexed

C’wealth DVA

Yes (limited)

Damages for non-economic loss

To have access to common law the employee must have a successful permanent impairment claim i.e. a benefit payable under the relevant Commonwealth Act — s389 Military Rehabilitation and Compensation Act 2004 (MRCA) & s45 Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA).

Yes — MRCA

Able to make an irrevocable election to institute an action or proceedings for damages for non-economic loss under s389 of the MRCA. No statutory permanent impairment benefits are payable after the date of such an election with respect to a service injury or disease. Common law action is taken against a single condition as distinct from other accepted conditions.

Yes — DRCA

Employees are able to make an irrevocable election to institute an action or proceedings for damages for non-economic loss under s45 of the Act. No statutory permanent impairment (s24) or non-economic loss (s27) benefits are payable after the date of such an election. However, a damages award does not affect other entitlements, such as weekly benefits, medical costs etc.

MRCA s389 and DRCA s45 — Damages shall not exceed $110,000. This amount is not indexed.

New Zealand

People do not have the right to sue for personal injury, except for exemplary damages.

These damages are punitive, and aimed at punishing the conduct of the offender. They are not intended to compensate for the injury.

No threshold

N/A

N/A