Workers’ Compensation Claim Vs Common Law Claim… What is the Difference?

7 October, 2020


Work injuries sustained in the WA workplace, typically require recovering compensation from the workers’ compensation insurer for weekly payments, medical (including hospital etc) and vocational rehabilitation costs. However, in certain circumstances, injured parties can also lodge a common law claim.

In addition to Worker’s Compensation, if a claimant has sustained at least a 15% permanent whole of person impairment, they may be eligible to pursue a common law claim against their employer in negligence for failing to provide and safe and proper system of works through the court system.

Unlike the ‘no fault’ workers’ compensation system, to succeed in a common law claim, the claimant needs to prove in court their workplace injury was caused by negligence of their employer.


Workers’ Compensation Claims

Workers’ Compensation in Western Australia is a “no-fault” system of insurance payment to employees if they are injured at work or become sick due to their work. These compensation payments can cover:

  • Wages while not fit for work
  • Reasonable medical, hospital and travel expenses
  • Vocational rehabilitation costs
  • Lump sum payment

These entitlements exist regardless of whose fault the injury was, as long as the claimant was a worker at the time of the accident and suffered the injury during the course of employment.

See here for more information on Workers’ Compensation


Common Law Claim

A common law claim is commenced in the District Court of Western Australia and is a claim for damages (compensation) against your employer for negligence in causing your injury.

In order to pursue a common law compensation claim, the claimant must:

  • Be assessed at minimum 15% Whole Person Impairment (WPI)
  • Elect to retain the right to seek common law damages before the Termination Date
  • Prove fault or negligence on behalf of the employer

The termination day is the date at which you cease to be eligible to pursue common law damages. This generally falls one year from the date your claim for weekly payments of compensation was made on your employer.


Limits on Common Law Claims

For Workers with a permanent WPI of between 15% and 25%,

For Workers with a permanent WPI of between 15% and 25%, the amount of damages is capped and determined by the severity of the injury or injuries. The amount payable is set out as “Amount A” in the Variations to the Prescribed Amount and other Workers’ Compensation Payments. This total includes the amount you have been paid in Workers’ Compensation payments.

In addition, if a common law claim is pursued against the employer, from the date of Election, the claimant is subject to a step-down in weekly payments and the entitlements to other statutory benefits cease. Assuming there are sufficient funds remaining in the prescribed amount of the claim, weekly payments reduce as follows:

  • First three months: receive 70% of the amount of weekly payments to which would otherwise have been entitled
  • Second three months: receive 50% of the amount of weekly payments to which would otherwise have been entitled
  • Weekly payments cease after six months

For Workers with a permanent WPI of at least 25%

Workers with a permanent whole of person impairment of at least 25% will continue to receive the statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount of damages received.


Determining whether your employer was negligent in causing your injury is a technical and specialised legal skill and as such it is best to obtain legal advice before proceeding with a Common Law claim.

If you have any further questions, please contact our office on (08) 9581 4339. We provide an initial consultation at no cost to discuss your current claim and possible entitlements.  We also act on a no win no fee basis if we are able to assist with your claim.

This article should be considered as general legal information and should not be viewed as legal advice. The Workers Compensation legislation in Western Australia changes regularly, and while endeavours are made to ensure the information provided is correct, it may not be up to date. - PPIL workers compensation claim lawyers  in Perth & Mandurah