6.3.9 Old common law scheme Common law claim is served on WorkSafe | Whole person impairment less than 30% | Worker has serious injury (either > 30% or court or WorkSafe gives leave)

The old common law scheme covers both pain and suffering damages and damages for loss of earning capacity. It applies to injuries incurred between 1 December 1992 and 11 November 1997. Transport accidents occurring during this period are dealt with under the Transport Accident Transport accident means a transport accident within the meaning of section 3(1) of the Transport Accident Act 1986 Act.

Serious injury

To be entitled to old common law damages, the worker must establish that they have a ‘serious injury’. There are two methods used to identify serious injury. Either of the following can be used:

  • 30% whole person impairment determined by an independent medical examiner using the American Medical Association Guides to the Evaluation of Permanent Impairment Second Edition
  • serious injury as defined under the legislation. Any one of the following is considered a serious injury:
  • serious long term impairment or loss of a body function
  • permanent serious disfigurement
  • severe long term mental or severe long term behavioural disturbance or disorder
  • loss of a foetus.

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Caps & thresholds

The cap and threshold amounts below are indexed annually – See: Maximum payments - actions for damages.

Damages are currently capped at:

  • $612,190 for pain and suffering damages
  • $1,699,210 for loss of earning damages.

The thresholds, below which workers cannot recover damages is currently:

  • $60,310 for pain and suffering damages
  • $75,480 for loss of earning damages.
Effect on maims/pain and suffering and weekly payments

Damages paid to the worker are reduced by any amount they have received:

  • for a Table of Maims claim
  • in weekly payments.

Table of Maims claims are not payable for the injuries the worker receives pain and suffering damages for.

Weekly payments are no longer paid if the worker receives damages for loss of earning capacity.

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Time limit to apply for serious injury determination

Before commencing proceedings for old common law damages, the worker must make a common law application. The deadline for lodging these applications was 31 August 2000.

Delayed incapacity still dealt with under old common law

There is an exception to the deadline above. Where the incapacity from an injury sustained before 12 November 1997 did not become known until after 12 November 1997, the injury can still be dealt with under the old common law scheme.

Serious injuries require compulsory conferencing

If a worker makes a common law application and is found to have a serious injury, they must take part in a pre-litigation conference where offers are exchanged and an attempt is made to settle the claim for damages. This must be undergone before a court will agree to hear the worker’s claim.

Status of old common law claims

Given the 31 August 2000 time limit for medical assessment applications, most old common law claims have already been determined.

There are still cases where WorkSafe is required to:

  • determine whether a worker has a serious injury
  • assess the damages to be paid to the worker
  • attend common law proceedings in a court.

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