6.3.9.3 Worker has serious injury (either > 30% or court or WorkSafe gives leave)
The worker begins the pre-litigation process.
Panel solicitor
The panel solicitor begins a pre-litigation conference within 49 days of the SI certificate being granted or of the court granting the worker leave to proceed.
The panel solicitor makes a recommendation on the statutory offer to WorkSafe.
WorkSafe provides instructions
WorkSafe provides instructions to the panel solicitor in respect of the statutory offer, drawing on the panel solicitor's recommendation.
Statutory offer
The panel solicitor must act on WorkSafe’s decision and make the statutory offer to the worker within 88 days of the injury being determined as serious.
The worker has 21 days to accept the offer or make a statutory counter offer.
Worker counter offer
WorkSafe makes the decision to accept or reject the worker’s counter offer, drawing on the panel solicitor’s recommendation. If WorkSafe accepts the offer, the Agent pays the worker.
Worker can issue proceedings
If the counter-offer is not accepted, the worker can issue proceedings for damages in the period between 21 and 51 days after the statutory counter offer is made.
The matter is then subject to court rules. Any further negotiations in the interim must be recommended by the panel solicitor and approved by WorkSafe.
Court proceedings & cost penalties for old common law
Court proceedings have cost consequences depending on overall proceedings and how the amount determined by the court relates to the statutory offer and counter offer.
The cost consequences of compulsory pre-litigation offers and counter offers are:
- if the judgment obtained by the worker is less than the statutory offer, the worker must pay the costs of WorkSafe
- if the judgment obtained is greater than the statutory offer but less than 90% of the statutory counter offer, each party bears its own costs
- if the judgment obtained is greater than the statutory offer and more than 90% of the statutory counter offer, WorkSafe must pay the worker’s costs.
Costs awarded
Costs of an application for leave to commence proceedings will be awarded against the unsuccessful party.
If a worker does not establish liability, then costs will be awarded against that worker.
If the worker is successful in gaining an assessment of damages but does not reach the minimum threshold then each party will bear its own costs.
If damages over the threshold are awarded then WorkSafe will be liable for the worker’s costs.