6.3 Common Law

6.3.1 Common law potential (CLP) | 6.3.2 Common law phases | 6.3.3 Worker makes a common law application | 6.3.4 Serious injury | 6.3.5 Originating motion | 6.3.6 Pre-litigation damages conference | 6.3.7 Damages writ | 6.3.8 Pain & suffering damages | 6.3.9 Old common law scheme | 6.3.10 Maximum payments - actions for damages

Common law rights have developed over centuries based on the outcome of court cases. One branch of the common law covers the right to claim damages for personal injury caused by the wrongful act or omission of another person.

For industrial accidents and diseases, common law has been modified over time because:

  • the right to common law co-exists with the no-fault regimes of workers’ compensation
  • employers have a duty of care towards their employees. Duty of care is also part of the common law right to claim damages for personal injury.

Since 1985, the legislation has had three common law rights schemes. Each scheme regulates how common law rights can be exercised.

Employers owe a duty of care to their employees. Other individuals and companies (such as occupiers, host employers and equipment manufacturers) also owe a duty of care to workers. A worker may have a common law right to damages (compensation) where a duty of care has been breached or where an employer or other person has not complied with their legal obligations and injury results.

Three schemes

The three schemes providing access to common law for workers are:

  • pain and suffering damages only – for injuries occurring between 1 September 1985 and 30 November 1992. Provisions were introduced in 1992 to cover the run-off of cases under tis scheme. The provisions introduced a time limit for proceedings covering these injuries to be issued. The time limit was 29 June 1994. There can be no more claims under this scheme.
  • old common law – for injuries occurring between 1 December 1992 and 11 November 1997 (and in some cases injuries before that date).
    See: Old common law scheme
  • common law – for injuries occurring on or after 20 October 1999. This scheme is sometimes called ‘new common law’ but in this chapter, the term ‘common law’ is used.
    See: Common law phases

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Date of injury

Each of the three schemes relates to particular dates of injury. The schemes identify the worker’s entitlement and the procedures for accessing common law damages.

Note: The recorded date of injury on a no-fault claim will not necessarily determine which date of injury a worker will be able to rely on for a common law claim. For example, a worker might allege that the injury occurred in a different way to that recorded on the no-fault claim.

Common law rights extinguished

For injuries occurring between 12 November 1997 and 19 October 1999, common law rights for workers did not exist in Victoria.

Vocational assessments

Vocational assessments serve a valid purpose in the analysis of a worker’s allegations in a common law claim for damages for loss of earnings and earning capacity.

However, if a worker fails to participate in a vocational assessment arranged solely for common law purposes, Agents should not use this as a basis to terminate weekly benefits.

A worker’s failure to participate in a vocational assessment for this purpose might invite a court to draw an adverse inference against a plaintiff in common law proceedings.

When requesting assessments for litigation or entitlement purposes Agents and Panel Firms should engage a provider who has not previously been involved in the management of the worker’s claim.

Note: Vocational assessments for common law purposes (RC550) are not considered to be occupation rehabilitation services and therefore worker choice of OR Occupational Rehabilitation provider does not apply.

Volunteers – recoupable claims

Common law claims with regard to recoupable claims must be lodged against the State of Victoria, not WorkSafe and are managed by the Victorian Government Solicitor.

Shared responsibility – Agent and panel solicitor

It is important that, throughout a common law application and any common law litigation, the Agent and the panel solicitor liaise in relation to any significant claims management decisions, including the arranging of IMEs and surveillance, the approval of surgery and the provision of occupational rehabilitation services.

If the Agent receives any relevant documents (such as medical reports including treater questionnaires) or becomes aware of significant information (such as the worker obtaining new or different employment, ceasing or reducing employment hours or earnings, being diagnosed with any other medical condition whether work relate or not, or making a new claim for no-fault compensation), the Agent must immediately communicate that information to the panel solicitor.

Both the Agent and the panel solicitor have a shared responsibility to manage the employer, bearing in mind that the employer may hold information that is critical to the defence of the application, may be named as the defendant in any court writ, and may be affected by the outcome of the common law application.

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