6.3.2 Common law phases

Common law for injuries sustained on or after 20 October 1999 has five phases.

Phase	Description
Common Law application made	Managing a common law claim begins when WorkSafe receives a common law application from the worker. The role of the Agent is mainly to respond to requests from the panel solicitor. The application must be served directly on WorkSafe.
Serious injury determination	If a serious injury (SI) certificate is: granted, the claim proceeds to the pre-litigation conference denied, the worker can apply to the County Court by Originating Motion, for the court to determine SI.
Originating motion	If the court: grants leave, the claim proceeds to the pre-litigation conference denies the SI, the process is finalised unless the worker successfully appeals.
Pre-litigation conference	The conference process attempts to negotiate damages. If: settled, the common law claim is finalised not settled, strict time limits apply in which: a statutory offer is to be made by WorkSafe (default causes a deemed offer of NIL) a statutory counter offer is to be made by the worker (default causes a deemed offer of the maximum) if either offer is accepted, the common law claim is finalised. Strict time limits apply for the issuing of a writ if the case is not settled after the statutory offer and counter offer stages.
Damages writ	A court will determine the damages amount payable to the worker (unless settled prior to hearing). If either the worker or WorkSafe is not satisfied with a court decision either party can appeal.