How Your Common Law Compensation is Evaluated

17 December, 2019

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While workers’ compensation claims are subject to a no-fault statutory insurance scheme, on the other hand, common law compensation claims require that the work-related injury was caused or materially contributed to by the fault or negligence of the employer. In Western Australia, a common law claim is commenced in the District Court and with reference to work accidents, can only be properly made if your Whole Person Impairment is assessed at least 15% and you make an Election to pursue a Common Law Claim by the Termination Date.

It is very important that you seek legal advice well and truly prior to your termination date so that you do not miss the opportunity to pursue a common law claim. We at Peninsula Personal Injury Lawyers are here to provide you with that advice and clarify all aspects of the process with you.

If you do Elect to make a common law claim, various head of damages are claim and I will discuss them briefly below:


General Damages or Non-Pecuniary Loss

This head of damage compensates you for your pain and suffering and loss of enjoyment of life. If you are eligible for a common law claim, it is assessed with reference to all the medical and other evidence. This head is subject to a statutory threshold, currently at $22,000.


Economic or Pecuniary Loss

This includes past and future loss of earnings or loss of earning capacity. Evidence is obtained in support of this loss including letters from your employer, pay slips, taxation returns and medical evidence in support. Any time that you have off work as a result of work related injury is compensable. We also consider what your future loss of income or loss of earning capacity is based on the medical evidence and expert opinion commenting on whether you have sustained a reduction in your perimeter of employment.


Voluntary or Gratuitous Services

A common law compensation claim also covers the care and assistance provided by your family and friends who have assisted you with self care and/or domestic duties that you have not been able to do for yourself as a result of your injuries. This is calculated at an hourly rate applicable at the time.  This head is subject to a statutory threshold of $6,500.


Past and Future Medical Treatment Expenses

Past and future medical treatment costs are also able to be claimed in the common law claim. This includes any invoices you have incurred by way of out-of-pocket expenses, as well as future medical treatment costs it is anticipated that you will incur in the future based on the medical evidence obtained. We assess this based on the medical evidence provided by treating doctors and specialists, as well as any evidence arising out of independent medical review.


Past and Future Travelling Expenses

You are also entitled to claim travel expenses relating to the travel you were required to do in relation to receiving medical treatment and management. The travelling expenses claim is currently claimed at the rate of 48 cents per kilometre, or on a global basis.


FREE, No Obligation Consultation from Peninsula Personal Injury Lawyers

Depending on your Whole Person Impairment, your common law damages claim may be capped and it is important that you seek legal advice from an expert in personal injury damages claims. Peninsula Personal Injury Lawyers will help you understand and protect your common law rights.


Contact Peninsula Personal Injury Lawyers today to discuss with us your claim and to identify your entitlements. We will assist you in every step of the way to ensure your rights and entitlements are protected.