WorkCover vs. common law — what's the difference?
Most people don't realise there are two separate pathways for workplace injury compensation in Queensland. They're quite different in what they offer:
WorkCover (statutory claim) is the no-fault scheme. You get weekly payments, medical expenses, and rehabilitation support regardless of who caused the injury. It's designed to get you through the immediate impact.
Common law damages is a separate claim against your employer (or another party) for negligence. It requires proving someone was at fault, but the compensation can be dramatically higher — covering pain and suffering, future loss of earnings, future medical costs, and other losses that WorkCover doesn't cover. This is paid as a tax-free lump sum.
You can pursue both at the same time. In fact, having an active WorkCover claim is usually a prerequisite for a common law claim in Queensland.
When can you make a common law claim?
A common law damages claim is available when someone else's negligence contributed to your injury. In workplace terms, this typically means:
- Unsafe work systems — your employer failed to provide a safe method of doing the work
- Inadequate training — you weren't properly trained for the task that caused the injury
- Defective equipment — machinery, vehicles, or tools that were faulty or poorly maintained
- Missing safety measures — no guardrails, no PPE provided, no risk assessments conducted
- Inadequate staffing — being forced to do work that required more people or different skills
- Failure to act on known risks — your employer knew about a danger and didn't fix it
What compensation is available?
Common law damages in Queensland can cover:
General damages — compensation for pain, suffering, and loss of enjoyment of life. The amount depends on the severity and permanence of your injury.
Past economic loss — income you've already lost because of the injury, minus any WorkCover weekly payments you've received.
Future economic loss — projected lost earnings if your injury affects your ability to work in the future. This can be the largest component for serious injuries to younger workers.
Past and future care — the cost of care and assistance you've needed or will need, including from family members.
Special damages — out-of-pocket expenses not covered by WorkCover, including future medical treatment.
The process
Common law claims follow a structured process under Queensland legislation:
First, a Notice of Claim is served on the employer's insurer, outlining the injury, the negligence alleged, and the damages sought. The insurer then has time to investigate and respond. Most claims are resolved through negotiation or a compulsory conference — relatively few go to a full court hearing.
The timeline is typically longer than a statutory WorkCover claim, but the potential compensation is substantially greater for serious injuries.
Important considerations
Contributory negligence: If you were partly at fault, your compensation is reduced by your percentage of responsibility — but you can still receive a significant amount.
Time limits: Strict limitation periods apply. You should get legal advice about common law options as early as possible in your WorkCover claim to ensure you don't miss critical deadlines.
Threshold requirements: Queensland law sets certain thresholds that must be met before a common law claim can proceed. We assess this early so you know where you stand.