Employer Negligence Lawsuit Settlements: Understanding Common Law Negligence Claims
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Principal Lawyer and Director · Last updated 31 August 2026
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Key takeaway: A common law negligence claim gives an injured worker a lump sum for past and future loss of earnings when a work injury assessed at 15% whole person impairment or more was caused by employer negligence. Settling ends all workers compensation benefits, so get advice before accepting an offer.
Common Law Negligence Claims: Quick Answers
Employer negligence can lead to significant injuries and financial losses for workers. If you’ve suffered due to your employer’s failure to provide a safe work environment, you may be eligible for compensation under common law negligence. These claims often result in substantial lawsuit settlements, helping injured employees recover damages for medical expenses, lost wages, and pain and suffering.
Understanding how common law negligence applies to employer-related cases is essential for pursuing justice. In this guide, we’ll break down the process of filing a claim, settlement expectations, and what you need to prove to succeed in your case. Let’s explore your rights and options to secure the compensation you deserve.
What Compensation Can You Claim for Employer Negligence?
Injured employees may be entitled to claim a range of benefits under employer negligence settlements, including weekly wages, medical expenses, rehabilitation costs, and travel expenses. Additionally, a lump sum payment may be available. Lump sum is payable in two forms:
- A permanent impairment payout applies if you have at least 11% whole person impairment (WPI). For psychological injuries, the payout requires at least 15% impairment.
- A common law payout for your physical or psychological injuries if either is at least 15% WPI.
To be successful in claiming a common law payout, an injured worker should prove:
- employer’s negligence in causing their injury and;
- injuries are already assessed as being at least 15% WPI
What is a Common Law Negligence Claim?
A common law negligence claim lets you receive a lump sum payment. This payment considers your future earning ability. It is an alternative to staying on workers’ compensation benefits.
It is made when your work-related injury is assessed as having at least 15% whole person impairment. This injury must have happened due to your employer’s negligence.
The type of injury does not affect common law negligence claims. You can make a common law negligence claim for both psychological and physical injuries.
Common law negligence claim settlements are determined according to past and future loss of earnings, calculated until retirement age. Once your common law negligence claim is resolved, all benefits you receive will stop. This includes weekly payments and expenses for medical care, hospital visits, transportation, and rehabilitation.
If your injuries are less than 21% WPI, your weekly benefits will stop after 5 years. This is true no matter your ability to work. This situation makes a common law negligence claim appealing to many people.
It’s a good idea to talk to our workers’ compensation lawyers before settling a common law negligence claim. They can provide valuable advice. They can help you understand your chances of getting a higher settlement and the effects of your settlement. In some cases it may be better for you to stay on workers compensation benefits instead of claiming a payout.
That is, of course, dependant on your unique circumstances and your WPI. This may be your first time claiming a payout. However, it is not the insurance company’s first time. Because of this, we suggest you get legal advice. This advice will not cost you anything out of pocket.
Am I Eligible to Make a Common Law Negligence Claim?
If your case fits the requirements below, you are more likely to be eligible to make a common law claim.
- Your work-related injury is assessed as being at least 15% whole person impairment, and
- Your work injury occurred because of your employer’s negligence, and
- You have received all statutory lump sum entitlements for permanent impairment to which you are entitled.
How Do I Prove Employer Negligence in My Claim?
In order to prove the negligence of another person or entity, you must be able to show that your employer:
- owed you a duty of care
- breached their duty of care and caused an injury
If you are not familiar with this field, you can reach out to our experienced common law lawyers.
Our lawyers hire experts based on your injury and how it happened. They will give an expert opinion on how your injury could have been prevented. This helps support your claim.
This is important because each area of work has its own policies, procedures, and requirements. These must be followed. If they are not, it can lead to negligence.
Steps to Making a Common Law Negligence Claim
If you have been planning to make a common law claim in NSW, this is a how-to-make-a-claim guide:
As mentioned above, firstly, you must meet the 15% whole person impairment threshold and make sure it is accepted by your insurer. If not, your injuries can be referred to the Personal Injury Comission for a binding determination by an Approved Medical Specialist.
Then, you are required to provide the employer and their insurer with relevant details of the claim for them to assess your full entitlement to the claim.
The points that you need to cover in detail include:
- Date of the injury
- Your pre-existing medical condition and current impairment rate
- Your previous injury claims (if any)
- Your economic loss due to the injury
- Negligence of your employer with evidence from experts
- The amount you are claiming and
- Any supporting documentation and information regarding your claim.
What Happens After Filing a Common Law Negligence Claim?
If the insurer accepts liability, they will make an offer of common law negligence settlement. Then, it will be your decision whether you want to accept or decline the offer.
If the insurer does not accept liability, the Defendant (the insurer/employer) will have 2 months from the date you provided particulars to make a determination.
Upon making determination you would then prepare and serve a Pre-Filing Statement setting out all the particulars of your evidence along with the evidence itself and a intended statement of claim which also sets out all the particularce including negligence claim.
The insurer/employer will then have 28 days to serve a Pre-Filing Defence setting out their defence as to liability, and their response and evidence that they will rely upon in defending their position.
You will then go to a Mediation. At this meeting, you, the insurer, and their lawyers can discuss a settlement. The settlement will depend on the strength of your claim. It will also rely on the evidence you provide about negligence. Additionally, your inability to work will be considered.
Should you and the insurer fail to resolve the matter by negotiation and you want to continue with your common law negligence claim then you should obtain legal advice about your reasonable prospects of success in commencing court proceedings.
What if I Don’t Get an Answer?
The Defendant (the insurer/employer) will have 2 months from the date you provided particulars to make a determination.
Upon making determination you would then prepare and serve a Pre-Filing Statement setting out all the particulars of your evidence along with the evidence itself and a intended statement of claim which also sets out all the particularce including negligence claim.
The insurer/employer will then have 28 days to serve a Pre-Filing Defence setting out their defence as to liability, and their response and evidence that they will rely upon in defending their position.
Will I Need to Go to Court for an Employer Negligence Lawsuit?
The short answer is, no – but it depends!
At mediation, the mediator helps the parties talk and reach a settlement. However, the mediator cannot make decisions or influence the outcome.
If you don’t accept the insurer’s settlement offer after mediation, you might have to go to court for your claim. You will have chances to resolve the issue before going to court.
However, you need to think about the strengths and weaknesses of your claim. Consider what options you have besides starting court proceedings. Also, weigh the benefits and risks of going to court.
If you are negotiating common law settlements with an insurer, it is important to get legal advice. Our experienced personal injury lawyer can help you understand your rights and receive your full entitlements.
Our lawyers will help you understand the strengths and weaknesses of your claim. They will also explain the insurer’s defense. This way, you can make a decision with peace of mind.
What Are Some Examples of Common Law Claims?
Workers from all industries can be entitled to make a common law claim as there is no limitation on a role, age or income amount.
According to SafeWork Australia, body stressing, falls, trips and slips, being hit by moving objects, mental stress, hitting objects with a part of the body, vehicle collisions and chemical substances account for the highest number of work-related serious claims.
Reach Our Common Law Lawyers For A Free Claim Check!
Our experienced personal injury lawyers have helped thousands of people in NSW on a No Win No Fee basis. We can help you get the best common law negligence settlement possible. Reach us for a free claim check!
Common Law Negligence Claim FAQs
What is a common law negligence claim in NSW?
How much compensation can you claim for employer negligence?
Am I eligible to make a common law negligence claim?
How do I prove employer negligence in a common law claim?
What happens after filing a common law negligence claim?
Will I need to go to court for an employer negligence lawsuit?
Do workers compensation benefits stop after a common law settlement?
How much does a common law negligence lawyer cost?
About the author
Issa Rabaya · Principal Lawyer and Director
✓ Admitted to the Supreme Court of NSW and High Court of Australia ✓ LLB ✓ IRO-approved ✓ Law Society of NSW
Acts for injured people in CTP, workers compensation, TPD and public liability claims.
Why Choose Withstand Lawyers for Your Common Law Negligence Claim?
Withstand Lawyers help people whose lives have been turned upside down by serious workplace injuries, and we know how much a common law settlement matters to your family’s future. Withstand Lawyers bring decades of experience to employer negligence claims, with more than $60M recovered for injured clients and a 99% success rate across all claims. Every claim runs on a no win no fee basis, so you pay nothing out of pocket and nothing is taken from your settlement. From your first free claim check, Withstand Lawyers stay by your side at every step, explaining your options in plain language and fighting for the maximum lump sum.
Call 1800 952 898 for a free claim check. No win, no fee, no upfront costs.
“Working with Esther has been an absolute blessing during an incredibly difficult time. Anyone who has ever had to navigate an insurance claim knows just how difficult, overwhelming, and anxiety-inducing the entire process can be. Before reaching out to Withstand Lawyers, I was constantly stressed and deeply overwhelmed by the system. The firm made the initial intake process incredibly smooth, and they placed me in the hands of my lawyer, Esther. From that moment on, from the first conversation, I finally found my solid ground. Esther has completely transformed how I navigate this unfortunate situation. Because she handles my matter directly, I have a direct line of contact with her and never have to jump through hoops to get support. Esther’s presence alone has given me immense confidence in my claim. What sets her apart is her perfect balance of professional mastery and genuine empathy. As a client, having a lawyer who truly listens and supports you when your mind is filled with doubt is a massive relief. She doesn’t just manage a file — she consistently protects her client’s peace of mind. Her recommendations are always highly logical, realistic, and clear-cut. She cuts through the legal confusion and tells you exactly where you stand, which is exactly what you need during the hardest times of your life. I feel incredibly lucky to have Esther and her team at Withstand Lawyers by my side. For anyone out there facing a difficult time with an insurer and looking for a legal advocate who offers absolute clarity, strength, and compassion — I cannot recommend Esther highly enough. She is a truly admirable professional who genuinely cares about the people she protects. Truly grateful!” “I have searched top lawyers (personal injury) in Sydney. I found Withstand Lawyers so I rang them up and asked I need lawyers that are nicer and more understanding despite what I am going through. They exceeded my expectations especially Issa, he always remind everyone to be more cautious when speaking to me and I really appreciate that. I am satisfied that my case (MVA) turned out to be successful. Withstand lawyers is more than 5 stars. Can’t recommend highly enough.” “I would like to express my deepest appreciation for the incredible support I’ve received over the past 4.5 years. My case has been long, complicated, and filled with challenges, but Issa and his team stood by me through every step with genuine care, professionalism, and dedication. Their compassion has meant just as much to me as their legal expertise. They didn’t just handle my case, they helped me through some of the most difficult years of my life. I wholeheartedly recommend them to anyone who needs genuine support, honesty, and a team that truly cares about your wellbeing.” “Thank you Withstand Lawyer for your exceptional work, professionalism and easy process for successfully assisting me with my TPD claim. I am thankful for your support. I highly recommend Withstand Lawyers and the services they provide.” “Had a very positive experience with Withstand Lawyers. The team was professional, knowledgeable, and supportive throughout the entire process. They took the time to explain everything clearly, kept me informed at every stage, and responded promptly to my questions. Their attention to detail and commitment to achieving the best possible outcome gave me confidence from start to finish. I truly appreciate their dedication and excellent service, and I would highly recommend Withstand Lawyers to anyone looking for reliable and trustworthy service.” Issa Rabaya Director, Lawyer Founder and Director with 12 years' experience since his 2014 admission, previously at the largest litigation law firm in Australia. A personal injury lawyer for serious injuries, leading Withstand Lawyers' work across every claim type, with settlements reaching into the millions, including a $6.3 million motor vehicle accident result. Esther Ihn Senior Associate Senior Associate with over a decade of experience exclusively in personal injury claims since 2014, handling hundreds of matters across motor vehicle accidents, workers compensation, work injury damages and public liability. The team's go-to for serious-injury claims. Minaa Mohmand Special Counsel Special Counsel with over a decade of experience since 2016, handling complex, higher-value claims: serious injuries, disputed liability and matters heading to litigation, across motor vehicle accidents, work injury damages, public liability and TPD. Mihana Wen Associate Associate with 6 years' experience since 2020 and a recent $1.95 million motor vehicle accident settlement, known for not taking no for an answer and lodging appeal submissions for injuries insurers try to deem below the 11% whole person impairment threshold for pain and suffering. The go-to for car accident claims, guiding clients from the first CTP submission through to settlement with a compassionate, hands-on approach. Isabel Sarcia Senior Lawyer Lawyer with 6 years' experience since 2020, working exclusively in TPD and superannuation claims, necessary because these claims turn on strict super fund definitions and procedure that few generalist lawyers see day to day. Specialises in lodging TPD claims efficiently, cutting through fund delays so claims are accepted faster and in full. Maria Drosos Associate Lawyer with 6 years' experience since 2020, working exclusively in TPD and superannuation claims, necessary because these claims turn on precise policy wording and medical evidence that few generalist lawyers handle daily. Specialises in lodging TPD claims efficiently, managing the insurer requests and medical reports that decide the outcome. Chenoa Brimble Lawyer · 4+ yrs experience Lawyer with 4+ years' hands-on experience in personal injury claims, built inside the firm before her 2026 admission, known for being organised and efficient in progressing clients' workers compensation, work injury damages, public liability and TPD claims.4.9 ★ — 265+ Reviews
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