People who are injured in the course of doing their job can make both a statutory and a common law claim for compensation in Queensland.

So what’s the difference between these types of claims? In this post, we’ll explain how statutory and common law claims for work injuries differ.

Statutory workers’ compensation claims

Workers in Queensland are covered by the state’s workers’ compensation scheme under the Workers’ Compensation and Rehabilitation Act 2003.

This legislation establishes the scheme under which all workers in Queensland are insured. The scheme is ‘no fault’, meaning negligence on the part of an employer or a work colleague does not need to be established in order for the injured worker to be able to claim benefits. Nevertheless, the worker must demonstrate that the injury arose out of, or in the course of, their employment and that the employment was a significant contributing factor to the injury.

The benefits that can be paid to an injured worker under the statutory scheme include money to cover income lost as a result of the injury, the costs of medical treatment and rehabilitation, and transport and other expenses related to the injury. Death benefits and funeral expenses may also be paid to the dependants of a person killed in a work accident

Once the injury stabilizes and neither improves nor worsens, a further medical assessment to work out whether a person has suffered a degree of permanent impairment can result in the offer of a lump sum compensation from WorkCover. At this point, if an injured person accepts the offer of the lump sum amount they give up the right to make a common law claim. Likewise, if the injured worker decides to pursue a common law claim alleging negligence on behalf of the employer, then statutory benefits will end.

If a person suffers no permanent impairment, workers’ compensation payments will cease once the injury is ‘stationary and stable’.

Common law claims for damages

A common law claim is sometimes also referred to as a work injury damages claim. An injured worker must first file a statutory claim for workers’ compensation (as outlined above) and have it accepted by WorkCover before being able to consider a work injury damages claim.

The key difference between the claims is that while the statutory scheme does not require anyone to be at fault for causing the injury, a common law claim requires the injured person to prove that negligence by the employer or a work colleague was the reason for the injury.

This type of claim, therefore, requires a higher bar of evidence and proof to show that an unsafe work practice or faulty equipment, for example, caused the injury. But a successful damages claim can also result in a much larger payout than a workers’ compensation lump sum if negligence can be shown.

A common law claim can be made for the injured workers:

• pain and suffering;
• lost wages and future loss of wages;
• past and future loss of superannuation;
• treatment expenses not paid for by WorkCover;
• the cost of any future treatment for your injuries.

A common law claim begins with filing a notice of claim to WorkCover, which will conduct its own investigation into the injury by contacting the injured party’s employer, and previous employers, and treating medical specialists.

WorkCover will then advise whether it accepts liability for the injury or not. If accepted, mediation will usually begin to work towards a negotiated settlement acceptable to all parties. While most cases result in a settlement, where an agreement can’t be reached, a court trial may be necessary to resolve the claim.

Time limits

Another key difference between statutory and common law workers’ compensation claims is the time in which an injured person has to file the claims.

A claim under the statutory workers’ compensation scheme must be made within 20 business days of the injury or, at the latest, within six months of the incident.



A common law claim, by contrast, must be commenced within three years of the injury occurring.

The need for good legal advice

Making a compensation claim – whether a statutory claim for benefits or common law for damages – is a time-consuming, detailed process. Choosing whether to accept a lump sum amount under the statutory workers’ compensation scheme, or pursue a common law claim based on proving the liability of an employer or co-worker, can be a stressful experience that requires the guidance of compensation law professionals.

Lifestyle Injury Compensation Lawyers specializes in these types of claims. We advocate strongly for clients in dealing with WorkCover and insurance companies to make sure a person injured at work is appropriately compensated for the pain and inconvenience of the injury.