WorkCover
Common Law Claim WorkCover Queensland: What Workers Need to Know
Published by Alex Bassingthwaighte on 16.10.26
A common law compensation claim in Queensland is a fault-based claim an injured worker can lodge against their employer.
Unlike a statutory WorkCover claim, a worker must prove that their employer’s negligence caused their injury, which can be a challenging process. Personal injury lawyers in Queensland are experienced in navigating these matters.
Common law claims involve significantly more legal complexity than the no-fault statutory scheme, and often require extensive evidence and medical backing to establish negligence.
WorkCover lawyers on the Gold Coast offer support and expertise to workers who have been injured in the workplace due to negligence.
In this article, we’ll cover everything you need to know about common law claims, from the exact process involved through to common misconceptions.
Our team at Claimwise is here to support you.
What is a WorkCover Common Law Claim Qld?
In Queensland, common law claims for workplace injuries are governed by the Workers’ Compensation and Rehabilitation Act 2003.
Unlike statutory WorkCover claims, a common law claim is a fault-based legal action an injured worker can take against their employer.
A worker can only seek compensation through a common law claim if the employer breached their duty of care and that breach caused the workplace injury.
Unlike the no-fault statutory scheme, a common law claim requires proof of negligence.
Employer negligence does not have to be the sole cause of a worker’s injury, but it must have materially or substantially contributed to it.
If poor workplace practices existed but did not actually cause the physical or psychological injury, negligence is not legally established.
Common law claims are generally pursued after a statutory claim, such as a WorkCover claim, comes to an end and a Notice of Assessment has been issued.
Prior statutory payments, such as weekly benefits and lump sum payouts, are usually deducted from the final common law settlement to avoid the worker being compensated twice for the same loss.
Common Law Claim vs WorkCover: Key Differences
| Feature | Statutory (WorkCover) Claim | Common Law Claim |
| Legal basis | Workers’ Compensation and Rehabilitation Act 2003 (Qld) | Negligence, under the same Act’s damages provisions |
| Fault requirement | “no-fault” scheme: work must a significant contributing factor to the injury | Must prove employer or co-worker negligence caused the injury |
| Who it’s against | Claim made against the employer’s insurer (WorkCover Queensland or a self-insurer) | Claim against the employer, but paid via their WorkCover accident insurance policy |
| When you can claim | Available from the outset (application must generally be lodged within six months of the entitlement to compensation arising) | A separate, later phase (pursued after the negligence and evidence are established, following the statutory claim) |
| Weekly payments | Generally 85% of normal weekly earnings for the first 26 weeks, stepping down after that, capped at 5 years or the statutory maximum | Not applicable: common law is a lump sum damages claim, not ongoing payments |
| Key eligibility gate | Available to virtually all injured workers | Degree of permanent impairment matters: under 20%, you must elect between the statutory lump sum or a common law claim (not both)
20% or over, you can accept both |
| Complexity/representation | Relatively simple and can usually be self-managed | More complex and typically requires representation from a personal injury lawyer |
| Burden of proof | Low: work contribution | High: evidence that unsafe conditions or conduct caused the injury |
Common law claims tend to be significantly more complex than statutory WorkCover claims.
Seeking the support of a workers’ compensation lawyer in Queensland is recommended for tailored advice, and representation where required.
Can Workplace Injury Common Law Claims be Lodged With WorkCover Claims
Common law claims can be lodged alongside or following a WorkCover claim, however the two pathways are handled as separate legal actions.
Generally, a worker cannot commence a common law claim until they have made a statutory WorkCover claim and received a Notice of Assessment.
A formal notice of claim can then be lodged if the employer’s negligence caused the injury.
WorkCover is a no-fault scheme, meaning a worker can generally lodge a claim even if they were partially at fault for their injury, provided the employment was a significant contributing factor. However, compensation is not payable if the injury was intentionally self-inflicted or caused by the worker’s own serious and wilful misconduct.
Common law claims, by contrast, can only be made if there is sufficient proof that the employer’s negligence caused the workplace injury. They function as fault-based claims, so without negligence, a common law claim will not succeed.
What Happens to Weekly WorkCover Payments?
Weekly WorkCover payments for lost wages and funded medical expenses generally continue while a worker’s statutory claim is active.
However, once WorkCover issues a Notice of Assessment for permanent impairment, weekly payments stop, typically within 20 business days.
| Phase | Weekly WorkCover Payments | Impact of Common Law Claim |
| After Lodging Claim | Continue as normal | No immediate change: workers still receive regular weekly wage benefits while the case is prepared |
| At Settlement / Judgment | Stops completely | Weekly payments cease permanently on the day your common law claim is legally finalised |
| The Settlement Payout | N/A | Past weekly payments are usually deducted from your final lump sum (future economic loss is paid as a single lump sum) |
Proving Employer Negligence: WorkCover Common Law Claims
To successfully pursue a common law claim for a workplace injury in Queensland, a worker must establish that their employer breached its duty of care by failing to provide a safe work environment, and that this breach caused the injury.
Common law claims rely on a four-part negligence test: duty of care, breach of duty, causation, and damage.
While negligence is a common law principle, key aspects of how it applies to workplace claims, such as causation and the calculation of damages, are set out in the Workers’ Compensation and Rehabilitation Act 2003 and the Civil Liability Act 2003.
Factor 1: Duty of Care
Workers must establish that their employer owed them a legal obligation to ensure their health and safety at work.
In Queensland law, this is automatically established as it recognises the employer’s duty to safety as non-delegable and absolute.
Case study: Czatyrko v Edith Cowan University [2005] HCA 14
The High Court held that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.
An employer can’t simply hand off responsibility for workplace safety to a manager, contractor, or system, they remain legally accountable.
Factor 2: Breach of Duty
Workers must prove that their employer failed to provide a safe work environment, or failed to take steps to mitigate a foreseeable risk of injury.
Under Section 305B of the Act, a court considers whether the risk was foreseeable, whether it was not insignificant, and if a reasonable person in the employer’s position would have taken precautions.
Factor 3: Causation
Workers must prove a direct link between their injury and the employer’s breach of care.
Under Section 305D of the Act, workers must prove that “but for” the employer’s negligence, an injury would not have occurred.
Factor 4: Damage
Workers must prove that the injury resulted in quantifiable and actual loss.
This is where physical or psychological injury has resulted in present and future loss of earnings, ongoing medical expenses, and ongoing loss of capacity to work.
Time Limits for Common Law Injury Claims in Queensland
In Queensland, the general time limit to file a common law claim is three years from the date of the injury under the Limitation of Actions Act 1974, or, in cases such as latent injuries where symptoms are not immediately apparent, from when the worker first became aware of the injury and its cause.
Workers must also complete mandatory pre-court steps, including obtaining a Notice of Assessment (NOA) and serving a Notice of Claim for Damages, well before this final deadline expires, as these steps take time to complete.
Key timeframes for workplace injury claims:
- Statutory claim (WorkCover): must generally be lodged within 6 months of the entitlement to compensation arising (extensions may apply on reasonable grounds)
- Backdated payments: lodging your statutory claim within 20 business days of the injury ensures your weekly payments and medical expenses are backdated to cover the full period since the injury; lodging later limits backdating to only the 20 days before you lodge
- Common law claim: within 3 years of the date of injury (or date of knowledge, in limited circumstances)
Notice of Claim & Notice of Assessment
The Notice of Assessment (NOA) and the Notice of Claim for Damages (NOC) are the two most critical documents in taking a WorkCover claim into a common law negligence claim. The NOA is issued by WorkCover following your permanent impairment assessment, and it’s what opens the door to a common law claim.
The NOC is the document that formally launches the negligence claim itself, and is generally served by the worker’s lawyer on the employer and WorkCover once the decision to pursue common law has been made.
Notice of Assessment
This document is issued by WorkCover Queensland (or a licensed self-insurer) once an injured worker has reached Maximum Medical Improvement (MMI), meaning their condition is considered stable and unlikely to significantly improve or worsen.
It provides a value called the Degree of Permanent Impairment (DPI), a percentage calculated by qualified medical assessors using strict evaluation guidelines.
The DPI is critical to the statutory side of the claim: it determines the size of the lump sum offer and, importantly, whether a worker can pursue common law damages at all.
Common law damages themselves are assessed separately, taking into account factors like economic loss, future care needs, and pain and suffering (calculated using a related but distinct scale called the Injury Scale Value, or ISV).
A worker’s DPI doesn’t directly set the dollar value of a common law payout, but it does gate access to the claim.
The NOA generally includes an offer of a statutory lump sum based on the DPI. I
f a worker’s DPI is assessed at less than 20%, they must decide whether to accept this lump sum offer or reject it and pursue a common law claim instead. If the lump sum is accepted, the worker generally forfeits their right to sue the employer for negligence.
However, where the DPI is 20% or higher, a worker can accept the statutory lump sum and still proceed with a common law claim.
Notice of Claim
If the NOA is rejected, or accepted where the DPI was 20% or higher, the NOC is the formal legal document a lawyer will draft to pursue a negligence claim against an employer. It’s served on WorkCover Queensland (or the self-insurer) and a copy is given to the employer.
Under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), WorkCover typically steps in to manage the claim and, if needed, defend the employer.
Serving the NOC generally protects the worker’s position under the standard three-year limitation period and requires WorkCover to formally investigate the allegations. WorkCover has six months from receiving the notice to investigate and then either admit or deny that the employer is liable for the injury.
A Notice of Claim is an extremely detailed document that requires significant supporting information. Reach out to us at Claimwise to discuss what this involves and what to expect after lodgement.
WorkCover Qld: Common Law Claims Process
| Stage | What Happens |
| 1. Statutory claim & Notice of Assessment | Before starting a common law claim, the injury is assessed for degree of permanent impairment (DPI) and WorkCover issues a Notice of Assessment (NOA) with a lump sum offer. |
| 2. Election/decision on the NOA | The NOA triggers a decision window: accept, reject, or defer the statutory lump sum. If the DPI is under 20%, this is effectively a choice between the statutory offer or pursuing common law (20% or over, workers can do both). |
| 3. Engage a lawyer & gather evidence | The claimant collects evidence to prove negligence (medical reports, witness statements, and expert opinions). |
| 4. Notice of Claim for Damages (NOCD) | Prepared by the injured worker’s lawyer, this is a comprehensive statement of who the worker is, how they were injured, why the employer allegedly breached its duty of care, and the damages sought. |
| 5. WorkCover’s response & investigation | WorkCover appoints a panel lawyer/law firm to respond, indicating whether liability is admitted or disputed. WorkCover’s lawyers typically arrange independent medical examinations (and surveillance in some cases) to assess the extent of the alleged injuries. |
| 6. Compulsory Settlement Conference | A compulsory conference is held under s289 of the Act. if no resolution is reached, both sides must exchange written final offers at its conclusion. |
| 7. Costs consequences of offers | Cost consequences flow from the final offers exchanged at the conference, which can pressure both sides toward a realistic settlement. |
| 8. Settlement or court proceedings | Most claims settle at or after the conference. Only once the pre-court process is complete can the worker file a claim in court (court is the exception rather than the rule). |
| 9. Damages assessed/paid | If liability is established (by settlement or judgment), damages (pain and suffering, past/future economic loss, and future care) are paid to the worker by WorkCover as the employer’s insurer. |
It’s important to note that, in some cases, the compensation from a common law claim can be significantly larger than what’s offered in the NOA.
Speak to a lawyer about your specific circumstances, including whether pursuing a common law claim is right for you and whether accepting the NOA would forfeit your ability to do so.
Evidence to Support Common Law Claim Workers’ Compensation
For common law claims in Queensland, the initial burden of proof rests with the worker.
They must provide sufficient evidence to prove, on the balance of probabilities, that the employer breached its duty of care, that this breach caused the injury, and that the worker suffered financial and other losses as a result.
This test is grounded in the common law of negligence, with key elements such as causation and damages further shaped by the Civil Liability Act 2003 (Qld) and the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
The evidence you need generally falls into four distinct categories:
Evidence of employer negligence
- Internal Hazard Reports: Emails, texts, or formal logs proving management was notified of the risk before the worker was hurt.
- Standard Operating Procedures (SOPs): Documents showing the employer lacked safety procedures, or that the procedures in place were unsafe or regularly ignored.
- Training Registers: Proof that workers were never properly trained or inducted.
- Equipment Maintenance Records: Logs proving machinery or vehicles were faulty, unserviced, or lacked necessary safety guards.
- Witness Statements: Written accounts from colleagues confirming unsafe practices, lack of staff, or the specific details of the incident.
Evidence of causation
- Incident Reports: The official workplace incident report submitted immediately following the accident.
- CCTV or Dashcam Footage: Visual evidence capturing the exact moment and mechanism of the injury.
- Ambulance & Emergency Room Records: Hospital admission notes taken on the day of the injury, linking a worker’s physical state directly to the workplace event.
- Timesheets & Rosters: Documents proving a worker was on shift and working under the conditions described when the injury occurred.
Medical evidence
- The Notice of Assessment (NOA): Official document from WorkCover stating the DPI.
- Medico-Legal Reports: Independent assessments from medical specialists (e.g. orthopaedic surgeons or psychiatrists) detailing permanent restrictions.
- Diagnostic Scans: MRI, X-ray, or CT scan results tracking the structural damage over time.
- Clinical Treatment Notes: Ongoing records from a GP, physiotherapist, or psychologist proving consistent treatment and symptoms.
Economic loss evidence
- Tax Returns & NOA: Past 3 to 5 years of tax records from the ATO to establish a baseline “pre-injury” earning capacity.
- Pay Slips: Recent pay slips showing missed overtime, allowances, or a drop in ordinary hours.
- Superannuation Statements: Statements showing the worker’s exact loss of super contributions while unable to work.
- Out-of-Pocket Receipts: Receipts for medications, surgeries, travel to appointments, and modifications to the home or car.
- Occupational Physician Reports: Expert assessments stating a worker can no longer work in their qualified trade or will have to retire early.
Case study: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
The High Court found the employer wasn’t liable for a worker’s psychiatric injury from overwork, since the risk wasn’t reasonably foreseeable to the employer at the time, even though the plaintiff developed the condition.
This case illustrates how foreseeability, not just harm occurring, is central to the evidence for establishing negligence.
How Social Media & Surveillance Affects Common Law Claims
Insurance investigators and WorkCover’s lawyers may monitor a claimant’s social media, and in some cases engage private investigators to conduct physical surveillance.
Common law damages rely heavily on a worker’s credibility and the extent of their ongoing physical or psychological restrictions, so any evidence that contradicts what’s been reported can seriously affect a payout or undermine the case.
Surveillance doesn’t happen in every claim. It’s typically reserved for cases where there’s suspicion of fraud or exaggerated symptoms, and both social media checks and physical observation must be conducted lawfully, generally limited to what’s publicly visible or occurs in public spaces.
With social media, posting something as simple as a photo of yourself holding a child can be used against a claim depending on the nature of the injury.
For example, if a worker’s claim states they cannot lift more than 5kg, but a social media post shows them holding a child, an insurer may point to this as evidence the claim is exaggerated or inconsistent.
Physical surveillance works on a similar principle. Investigators may observe or record a worker’s activities in public, for example, filming them going about daily activities, to check for inconsistencies with what’s been reported in the claim.
Any footage gathered this way can potentially be used against a worker’s common law claim.
If WorkCover uncovers social media posts or surveillance footage that contradicts a worker’s claim, the impact is severe:
- Credibility Destruction: If a judge catches a worker exaggerating an injury on film or online, they may dismiss the entire testimony
- Payout Reduction: Compensation for future economic loss and general damages could be slashed by tens or hundreds of thousands of dollars.
- Fraud Charges: Under Section 533 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), deliberately defrauding or misleading an insurer is a criminal offence that carries heavy fines or imprisonment.
Due to the complexities involved in common law claims, we recommend seeking legal representation to ensure your rights and expectations are clearly understood before lodging a claim.
Common Myths: Common Law Compensation Claim in Qld
“An Accepted WorkCover Claim Means Your Employer Admitted Negligence.”
This is incorrect. WorkCover statutory claims work on a no-fault scheme, meaning negligence isn’t considered at all.
A worker only needs to show that work was a significant contributing factor to their injury, not that anyone was at fault.
Even in a common law claim, the employer doesn’t have to admit negligence, and in many cases, liability is disputed rather than conceded.
The responsibility falls on the injured worker to prove there was a breach of the employer’s duty of care that caused, or materially contributed to, their injury.
“WorkCover and Common Law are the Same Thing”
WorkCover is a statutory no-fault scheme that any injured worker can claim, as long as work was a significant contributing factor to their injury. It generally covers medical expenses and lost earnings through weekly payments, and may also offer a lump sum payout for permanent impairment.
Common law claims, by contrast, are fault-based and rely on proving employer negligence. They provide a single lump sum payout, often significantly larger than the statutory lump sum, rather than ongoing weekly payments.
“You Need a 20% Impairment Before You Can Consider Common Law”
This is incorrect. Regardless of DPI, a worker can still make a common law claim against a negligent employer.
However, the degree of impairment does affect how the process plays out. A DPI of less than 20% means the worker must choose: either pursue a common law claim (forfeiting the statutory lump sum offer), or accept the lump sum offered in the NOA (forfeiting the right to pursue a common law claim).
With a DPI of 20% or higher, a worker can generally pursue both.
Can Returning to Work Reduce Your Common Law Entitlement?
Returning to work may reduce your common law entitlement, but it rarely wipes it out completely.
In Queensland, the largest portion of a common law payout is usually future economic loss, compensation for a worker’s reduced earning capacity over the rest of their working life, resulting from the injury.
Returning to work gives WorkCover concrete evidence of what a worker is still capable of earning, which naturally factors into how this loss is calculated.
However, getting back to work safely can actually protect your legal credibility and open up other avenues of compensation.
Speak to a lawyer at Claimwise to discuss these alternate pathways further, and whether or not they apply to you.
What if Your Injury Worsens After Your WorkCover Claim is Accepted?
If a workplace injury worsens after WorkCover Queensland accepts a statutory claim, the law provides some mechanisms to protect workers.
However, timing is extremely important. How a worsened injury is handled depends on which stage the claim has reached: whether it’s still in the standard statutory phase, in the common law investigation phase, or already finalised.
- WorkCover statutory claim: if WorkCover is still assessing the degree of permanent impairment (a Notice of Assessment hasn’t yet been issued), a worker can generally request a further medical assessment before the DPI is finalised.
- Common law process: if a worker has lodged a common law claim against their employer, but the matter hasn’t been resolved (still in the investigation or negotiation phase), a lawyer can update the claim to reflect the worsened condition and revised losses.
- Common law settlement or judgment: if the common law claim has already been settled, or a court has awarded damages, the worker generally cannot reopen the claim if the injury later worsens, even if their condition deteriorates significantly. This is one of the reasons legal advice before settling is so important.
There is one narrow exception, but it applies only on the statutory side, not after a common law settlement.
If a worker accepted a statutory lump sum with a DPI under 20%, and their injury later deteriorates in a way that wasn’t expected at the time, they may still be able to pursue common law damages. This only applies if fresh medical evidence shows both an additional 10% or more of DPI and a total DPI of 20% or more.
This is a limited, narrow review, not a general right to reconsider, so it shouldn’t be relied on as a backup plan.
When Should You Speak With a Queensland WorkCover and Common Law Lawyers?
Workers who have lodged a WorkCover claim should consider seeking legal support as soon as the statutory claim is accepted, or once a Notice of Assessment has been received.
Strict legal time limits apply to workplace injury claims, and missing these windows is a genuine risk that can cost a worker their entitlements, so acting early helps protect your position.
Lawyers can properly structure complex actuarial calculations relating to future loss of earnings, assess whether a common law claim is viable based on DPI, and prepare a compliant Notice of Claim for Damages.
Our team of personal injury lawyers at Claimwise are well versed in managing common law claims and guiding injured workers through the complicated legal pathways available. Book a consultation with us today.
*This article provides general information about WorkCover disputes in Queensland for educational purposes, and does not constitute legal advice. For personalised support, speak with a qualified personal injury or workers compensation practitioner.