Common Law Claims for Work Injuries in Queensland: A Complete Guide

What Is a Common Law Claim for a Work Injury?

If you’ve been injured at work in Queensland, you may have heard the term “common law claim” thrown around. But what does it actually mean, and how is it different from a standard WorkCover claim?

A common law claim is a separate legal action brought against an employer whose negligence caused or contributed to a workplace injury. Unlike a WorkCover claim, which pays out on a no-fault basis, a common law claim requires you to prove your employer did something wrong. That’s a higher bar, but the compensation available is also much broader.

This guide covers the common law pathway from beginning to end: who can make a claim, what you can recover, how the process works, and what to watch out for along the way.

Best Injury Lawyers practises exclusively in Queensland personal injury law. This article is written to help workers understand the common law process in plain English so they can make informed decisions about their rights.

WorkCover Statutory Claims vs Common Law Claims: What’s the Difference?

The two pathways serve different purposes and the compensation available under each one can look very different. Here’s a quick comparison.

The scope of compensation differs significantly between the two pathways. Statutory weekly payments are a percentage of pre-injury wages and stop when the claim ends. Under a common law claim, damages for economic loss are assessed on an individual basis and can extend through to anticipated retirement age, depending on the worker’s age, occupation, and residual earning capacity. The appropriate amount in any given case depends entirely on the individual circumstances.

For a detailed discussion of how common law claims are valued, see our article: How Much Is a Common Law Claim Worth in Queensland? (https://bestinjurylawyers.com.au/knowledge-base-article/common-law-claim-worth-qld/)

Who Can Make a Common Law Claim?

To pursue a common law claim for a work injury in Queensland, you generally need to show three things:

1. You were a “worker” within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
2. Your injury arose out of, or in the course of, your employment.
3. Your employer’s negligence caused or materially contributed to that injury

The definition of “worker” is broader than most people expect. It covers most employees, and in many cases also extends to labour hire workers, apprentices, and certain contractors, depending on the working arrangement. If you’re not sure whether you qualify, a lawyer can clarify that quickly.

Importantly, you don’t need to have been involved in a dramatic one-off accident. Common law claims regularly arise from:

• Lifting and manual handling injuries
• Falls from heights
• Machinery incidents
• Vehicle accidents during work
• Gradual-onset injuries from repetitive work or unsafe systems
• Aggravations of pre-existing conditions
• Psychological injuries

Proving Negligence: The Four Things You Need to Show

Every common law claim requires the injured worker to establish four elements. All four need to be present for the claim to succeed. Here’s what each one means in practice.

1. Duty of Care
Employers have a legal duty to take reasonable care to avoid exposing workers to unnecessary risk of injury. This is one of the most well-established duties in Australian law. It includes providing a safe place of work, safe equipment and tools, a safe system of work, proper training and supervision, and a psychologically safe environment. One important point: an employer’s duty of care is non-delegable. That means they can’t avoid liability by outsourcing safety responsibilities to a contractor, labour hire agency, or host business. The duty stays with the employer.

2. Breach of Duty
The second element is that the employer’s conduct fell below the standard a reasonable employer would have met in the same situation.
In Queensland, a breach of duty occurs where the risk of harm was foreseeable, the risk wasn’t insignificant, and a reasonable employer would have taken steps to address it. Common examples include:

• Failing to provide personal protective equipment, or not enforcing its use
• Requiring workers to lift loads that are too heavy, or without mechanical aids
• Failing to train workers properly, or not supervising inexperienced staff
• Ignoring known hazards, previous incidents, or complaints about unsafe conditions
• Providing defective or poorly maintained equipment
• Imposing excessive workloads or unsafe rosters
• Failing to act on reports of workplace bullying or harassment

3. Causation
The breach needs to have caused or materially contributed to the injury. You don’t need to show it was the only cause, just that it played a material part.

Causation is assessed using the “but for” test: but for the employer’s breach, would the injury have occurred? This can be straightforward in a machinery accident, and more complex in gradual-onset conditions, aggravations of pre-existing issues, and psychological injury claims. Strong medical evidence matters a lot in those cases.

4. Foreseeability
The type of harm you suffered needs to have been reasonably foreseeable. The question isn’t whether your employer actually foresaw your specific injury, but whether a reasonable employer would have foreseen that this general type of harm could result from the unsafe conditions. The specific injury doesn’t need to be foreseeable, just the general kind of harm.

The Notice of Assessment: A Decision Point You Can’t Afford to Get Wrong

One thing that catches a lot of people off guard is the sequence of events. The statutory WorkCover claim is generally finalised before the common law claim begins, and there’s a critical decision point sitting right between the two.

Once your injury is stable, you’ll undergo a permanent impairment assessment. The insurer then issues a Notice of Assessment, which records your degree of permanent impairment (DPI) and may include a statutory lump sum offer.

What happens next depends on your DPI level:

DPI under 20%: You generally have to choose between accepting the statutory lump sum and pursuing a common law claim. You can’t have both. Accepting the lump sum will, in most cases, permanently end your right to common law damages.

DPI of 20% or more: You may be able to accept the statutory lump sum and pursue a common law claim.

This election is one of the most consequential decisions in the whole process. Statutory lump sum offers are often a fraction of what a common law claim may be worth, yet accepting one without advice can permanently close the door on the more valuable right. Always get legal advice before responding to a Notice of Assessment or accepting any lump sum offer.

What Can You Claim? The Categories of Loss

If negligence is established, damages are assessed across several categories. Each one compensates a different type of loss.

General Damages (Pain and Suffering)

This compensates for pain and suffering, loss of enjoyment of life, and loss of expectation of life.

In Queensland workers’ compensation common law claims, general damages are assessed using the Injury Scale Value (ISV) framework under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). The ISV scale runs from 0 to 100. Medical evidence identifies the appropriate range for your injury type, and your specific circumstances determine where you land within that range. Multiple injuries may produce a combined ISV, and a psychological component arising from a physical injury can increase the assessment.

Past Economic Loss

This covers income and superannuation lost from the date of injury to the date of settlement. It’s calculated by comparing your pre-injury earnings, including overtime, bonuses, and allowances, with what you actually earned during your recovery.

Future Economic Loss

Future economic loss is often the largest part of a common law claim. It compensates for your reduced earning capacity from settlement through to your anticipated retirement age.

The calculation takes into account your age, occupation, pre-injury earnings, what you can still earn despite the injury, and your remaining working life. Courts may use a precise mathematical approach or award a lump sum reflecting the overall loss of earning capacity. Loss of future superannuation contributions is claimed on top.

Past and Future Medical Expenses

This covers the reasonable cost of treatment caused by the injury: surgery, specialists, hospital stays, GP visits, physiotherapy, psychology, medication, and assistive equipment. Both costs already incurred and future costs reasonably required can be claimed. Keep records of every medical expense from the date of injury.

Past and Future Care and Assistance

If family members or friends have provided unpaid care or domestic help because of your injury, you may be able to claim compensation for that support, known as gratuitous care, provided minimum thresholds are met. Generally that means at least six hours per week over a sustained period. Where paid care is required, its actual cost can be claimed.

Out-of-Pocket Expenses and Interest

Costs like travel to medical appointments, prescriptions, aids and equipment, and home modifications are claimable. Interest may also be awarded on past losses. Keep receipts from day one.

A note on refunds: Any weekly payments and medical expenses already paid under your WorkCover claim are refunded to the insurer out of your common law settlement. Your lawyer will factor this into any settlement advice so you understand your net position.

How the Common Law Claim Process Works, Step by Step

Step 1: Initial Consultation
A lawyer practising in personal injury law can advise on whether the circumstances of your injury are likely to support a common law claim and identify the relevant time limits. Best Injury Lawyers practises exclusively in this area and can be contacted to arrange an appointment.

Step 2: Investigation and Evidence Gathering
Your legal team gathers the evidence needed to support the claim: medical records, incident reports, workplace records, witness statements, employment and wage records, and independent expert reports on your injuries, restrictions, and prognosis.

Step 3: Notice of Claim for Damages
Your lawyer lodges a Notice of Claim for Damages under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). This document sets out the circumstances of the injury, the allegations of negligence, and the damages being claimed. It formally starts the mandatory pre-court process.

Step 4: Insurer Response and Assessment
The insurer investigates the claim, reviews the evidence, and may arrange independent medical examinations (IMEs). Your lawyer manages this process and responds to any challenges to liability or the value of the claim.

Step 5: Compulsory Settlement Conference
Before any court proceedings can be filed, the parties must attend a compulsory settlement conference. Your lawyer prepares detailed submissions, attends the conference with you, and negotiates on your behalf. The vast majority of workers’ compensation common law claims, well over 99%, resolve at or around this stage without ever going to court.

Step 6: Court Proceedings (If Needed)
If a resolution can’t be reached, the claim may proceed to court. This is uncommon, and your lawyer will advise you on the merits and risks before any decision is made.  In our experience, less than one in 500 WorkCover claims ever goes to court.

Step 7: Settlement and Finalisation
Once a settlement is reached or a court award is made, your lawyer will explain how the settlement is structured, what deductions apply, and what your net amount will be.

Time Limits: Don’t Leave This Too Late

Strict time limits apply, and missing one can permanently end your right to claim.

General limitation period: Three years from the date of the workplace injury, under section 302 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Late Notices of Assessment: If the insurer issues a Notice of Assessment less than six months before the three-year deadline, the time to bring proceedings may be extended to six months after you receive the final Notice of Assessment.

Statutory claim deadline: The underlying WorkCover claim must generally be lodged within six months of the injury. That statutory claim is the gateway to the common law pathway.  If you run out of time to bring a statutory claim, you may still be able to bring a common law claim, so long as you can prove you were injured during the course of your employer (and still within the general 3 year limitation period).

Because the statutory process, permanent impairment assessment, and pre-court procedure all take time, the practical window for getting advice is much shorter than three years. The safest approach is to seek advice as early as possible after the injury.

What If You Were Partly at Fault?

This comes up a lot. Many workers assume that if they made a mistake, they have no claim. That’s not how it works.

Contributory negligence arises where a worker’s own conduct contributed to the injury, for example, failing to wear provided protective equipment or ignoring a known safety procedure. If established, damages are reduced by the percentage of responsibility attributed to the worker. If you were assessed as 20% responsible and your damages would otherwise be $250,000, the award is reduced to $200,000.

Contributory negligence does not prevent a claim. It reduces the compensation, but your right to claim remains. The employer also bears the burden of proving it. Workplace injuries often involve both an unsafe system and human error, and the law apportions responsibility accordingly. In most WorkCover claims, there is no reduction for contributory negligence.

Psychological Injury Claims

Psychological injuries are an increasingly common basis for workers’ compensation common law claims in Queensland. Claims can arise from traumatic incidents, sustained workplace bullying or harassment, excessive workload, or exposure to distressing material.

Common conditions include PTSD, major depressive disorder, generalised anxiety disorder, and adjustment disorder.

These claims can be complex. The worker needs to show that workplace conditions, rather than personal or pre-existing factors, caused or contributed to the condition. The Workers’ Compensation and Rehabilitation Act 2003 (Qld) contains specific provisions relating to psychological injuries. Strong evidence is essential: reports from treating psychologists or psychiatrists, workplace records including HR documentation, independent psychiatric assessments, and evidence about the impact on daily life.

Claims Beyond Your Direct Employer

Not every work injury claim is just against the direct employer.

Vicarious liability: An employer is liable for the negligence of an employee acting in the course of their employment. If a co-worker’s carelessness injured you while they were doing their job, you may have a claim against the employer on that basis.

Labour hire arrangements: Labour hire workers may have claims against the labour hire company, the host employer, or both, depending on who was responsible for the safe system of work.

Third parties: If a contractor, subcontractor, equipment manufacturer, or site occupier caused or contributed to your injury, a separate claim may lie against that party.

Principal contractors: In construction and mining, principal contractors may have their own safety obligations and may be liable in addition to, or instead of, the direct employer.

Where more than one party is responsible, liability is apportioned based on their respective contributions to the harm. Identifying every potentially liable party early is an important part of the claims process.

If another party is also responsible, you are generally entitled to a larger sum of damages due to different laws that apply to the non-employer party.  In most cases involving multiple defendants, you will also be entitled to claim a large portion of your own legal costs back from the other side.  Therefore, it is actually a good position to be in to be able to claim against multiple defendants and this is something that should be thoroughly investigated.

Common Mistakes That Can Hurt Your Claim

1. Accepting a statutory lump sum without legal advice. In most cases, this permanently ends the right to pursue common law damages. Get advice before responding to a Notice of Assessment.
2. Missing time limits. Limitation periods are strict. Seek advice early.
3. Not keeping records. Detailed records of treatment, expenses, lost income, and the impact on daily life are essential to properly evidence a claim.
4. Returning to work too early under pressure. Medical clearance should guide return-to-work decisions, not pressure from an employer or insurer.
5. Giving statements to the insurer without advice. Anything you say can be used in assessing your claim.
6. Not disclosing pre-existing conditions. Honesty strengthens your position. A claim can still succeed where negligence aggravated a pre-existing condition.
7. Delaying medical treatment. Gaps in treatment can be used to argue the injury isn’t as serious as claimed.

About Best Injury Lawyers

Best Injury Lawyers practises exclusively in Queensland personal injury law, with a focus on workers’ compensation common law claims across all industries and injury types.

Our conditions of engagement include:

• No win, no fee: Professional fees are only payable if the claim succeeds.
• 30% + GST fee cap: Professional fees are capped at 30% + GST of the total settlement amount, with no uplift fees.
• Disbursements funded: Disbursements are funded on your behalf and are only payable if the claim is successful.
• Dedicated contact: You’re assigned a dedicated lawyer and paralegal who will advise you directly throughout the matter.

The principal of the firm is Ryan Stehlik, recognised as Principal Solicitor at the Supreme Court of Queensland, Solicitor at High Court of Australia, member of Queensland Law Society and a member of Australian Lawyers Alliance.