Skip to content
withstand lawyers logo
  • Show content for:
New South Wales
  • 1800 952 898
Menu
  • Types of claim
    • TPD / Superannuation Claims
      • TPD Lawyers – Total and Permanent Disability
      • TPD Claim for Depression and Mental Illness
      • TPD Claim Guide
      • Superannuation Lawyers
    • Motor Accidents
      • Motor Vehicle Accident Lawyers
      • Car Accident Lawyers
      • Truck Accident Injury
      • Forklift Accident Injury
      • Motorcycle Accident Injury
      • Pedestrian Accident Injury
      • Public Transportation Accident
    • Workers Compensation
      • Workers Compensation Lawyers
      • Work Injury Damages Claim
      • Claims for Stress
      • Compensation for PTSD
      • Psychological Injury
      • Workplace Bullying
      • Construction Accident Injury
      • Health Workers Compensation
      • Industrial Deafness
    • Medical Negligence
      • Medical Negligence Lawyers
      • Cosmetic Surgery Compensation Claims
      • Operation Gone Wrong Claims
    • Public Liability
      • Public Liability Lawyers
  • About Us
    • Our Team
  • Testimonials
  • Contact Us
    • Sydney
    • Parramatta
  • Blog
  • How We Are Different
    • Our No Win No Fee Agreement
    • Personal Injury Claim Lawyers Guide
    • When Should I Settle My Personal Injury Claim?
    • Do I Have a Personal Injury Case?
    • Best Compensation Lawyers
  • Types of claim
    • TPD / Superannuation Claims
    • Motor Accidents
    • Workers Compensation
    • Medical Negligence
    • Public Liability
    • TPD Lawyers – Total and Permanent Disability
    • TPD Claim for Depression and Mental Illness
    • TPD Claim Guide
    • Superannuation Lawyers

    TPD Superannuation Claims.

    Unable to work due to injury or illness? You may be entitled to a lump sum payout regardless of the cause of the injury or illness. Withstand Lawyers can help you claim on a No Win No Fee basis.

    Read more

    • Motor Vehicle Accident Lawyers
    • Car Accident Lawyers
    • Truck Accident Injury
    • Forklift Accident Injury
    • Motorcycle Accident Injury
    • Cyclist Accident Injury
    • Pedestrian Accident Injury
    • Public Transportation Accident

    Motor Accident Injuries.

    If you have been injured in a motor accident (such as car, motorcycle, truck), you may be entitled to claim compensation. Withstand Lawyers can help you claim on a No Win No Fee basis.

    Read more

    • Workers Compensation Lawyers
    • Work Injury Damages Claim
    • Claims for Stress
    • Psychological Injury
    • Construction Accident Injury
    • Industrial Deafness

    Workers Compensation.

    If you have been injured during or on the way to or from work, you may be entitled to workers compensation for your injuries regardless of fault. Withstand Lawyers can help you claim on a No Win No Fee basis.

    Read more

    • Medical Negligence Lawyers
    • Cosmetic Surgery Compensation Claims

    Medical Negligence.

    If you have suffered injury as a result of medical advice or treatment, you may be entitled to making a compensation claim for medical negligence. Withstand Lawyers can help you claim on a No Win No Fee basis.

    Read more

    • Public Liability Lawyers

    Public Liability.

    If you have become injured in a public place you may be entitled to making a compensation claim for your injuries. Withstand Lawyers can help you claim on a No Win No Fee basis.

    Read more

  • About Us
    • Our Team
  • Testimonials
  • Contact Us
    • Sydney
    • Parramatta
  • Blog
  • How We Are Different
    • Our No Win No Fee Agreement
    • Personal Injury Claim Lawyers Guide
    • When Should I Settle My Personal Injury Claim?
    • Do I Have a Personal Injury Case?
    • Best Compensation Lawyers
Home Common Law Negligence Claim

Common Law Negligence Claim

Posted In NSW,Workers Compensation
Posted On October 28, 2022
Online Inquiry

IN THIS POST

  • What is a common law negligence claim?
  • Am I entitled to make a common law negligence claim?
  • How can I prove that my employer was negligent?
  • How can I make a common law negligence claim?
  • What is the next step after making the claim?
  • What if I don’t get an answer?
  • Do I need to go to court for my claim?
  • What are some examples of common law claims?
  • Reach our common law lawyers for a free claim check!

Injured employees are entitled to claim weekly wages, medical & rehabilitation expenses, travelling expenses, lump sum payment and a lump sum compensation payout. Lump sum is payable in two forms:

  1.  Permanent impairment payout for your physical injuries are at least 11% whole person impairment (WPI) or at least 15% for psychological injuries
  2. 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
woman claimant pose

What is a common law negligence claim?

workplace injury compensation benefits

A common law negligence claim allows you to claim a lump sum payout to take into account your future earning capacity instead of staying on workers compensation benefits. Its made when your work-related injury is assessed as being at least 15% whole person impairment occurred due to your employer’s negligence.

The type of injury is not a condition of the common law negligence claims; so, you can make a common law negligence claim whether your injuries are psychological or physical.

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 resolves, all benefits that you are receiving cease; this includes weekly payments, and medical, hospital, transportation & rehabilitation expenses. If your injuries are not at least 21%WPI then your weekly benefits would cease at 5 years regardless of your capacity to work, making a common law negligence claim appealable to most people.

If you are about to settle a common law negligence claim, we highly recommend you speak to our workers compensation lawyers first to know your prospects of getting a higher settlement and/or the implications 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. It may be your first time claiming a payout but it is definitely not the insurance companies first time and as such we recommend you obtain legal advice at no out of pocket cost to you.

Am I entitled 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.

  1. Your work-related injury is assessed as being at least 15% whole person impairment, and
  2. Your work injury occurred because of your employer’s negligence, and
  3. You have received all statutory lump sum entitlements for permanent impairment to which you are entitled.

How can I prove that my employer was negligent?

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 experienced in this area, you can reach our experienced common law lawyers and we will give you free legal advice in respect of your potential claim. Our common lawyers brief and hire experts depending on your injury and how it occurred who will provide an expert opinion as to how your injury could have been prevented to support your claim. That is important because each area of work has specific policies, procedures and requirements that must be adhered which if not amounts to negligence.

Calculate your compensation claim

How can I make 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 it’s 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.
female construction worker

What is the next step after making the 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, as usual, 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 attend a Mediation at which point both you and the insurer and their lawyers can negotiate a settlement, which will depend on the strength of your claim and evidence provided as to negligence and your incapacity to work. 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.

Do I need to go to court for my claim?

The short answer is, no but it depends!

At mediation, the mediator will assist the parties to reach a settlement through discussions however a mediator has no legal authority to make a decision or influence in either way. However, if you don’t agree with an insurer’s offer of settlement even after the mediation phase, then you will need to consider commencing court proceedings for your common law claim. You will haveopportunities to resolve the matter before court proceedings start however you need to first consider the strengths and weaknesses of your claim, what options you have other than commencing court proceedings and the benefits and risks associated with commencing court proceedings.

If you’re negotiating common law settlements with an insurer or considering doing so, it’s strongly recommended to get independent legal advice from our experienced personal injury lawyer to receive your full entitlements. Our lawyers will advise you on the strengths and weaknesses of your claim and the insurers defence to allow you to 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!

successful claim icon

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!

Calculate your compensation claim
Issa Rabaya

Issa Rabaya

• Bachelor of Laws
• Graduate Diploma in Legal Practice
• Approved Legal Service Provider to the Work Cover Independent Review Office
• Member of the Law Society

Call Now 1800 952 898
Search

Free Initial Consultation

Complete for eligibility advice

Categories

  • Blog
  • Medical Negligence
  • Motor Accident Compensation
  • Public Liability
  • TPD Claims
  • Workers Compensation

Related blogs

mature man happy

TPD Lawyers Melbourne & Victoria

June 12, 2023

You know that you are not alone, around 5000 people from Melbourne make TPD claims each year due to being unable to work because of

Read More »
car driver

Motor Vehicle Accident Compensation Payouts NSW

June 7, 2023

According to the State Insurance Regulatory Authority (SIRA), ≅10,000 motor vehicle accident compensation claims are made in NSW per year. Compensation payouts for motor vehicle

Read More »
driving car in sydney

Traffic Accident Claims Explained!

June 6, 2023

According to the Australian Institute of Health and Welfare (AIHW), an alarming number of approximately 70,000 Australians are injured and hospitalised each year due to

Read More »
Zilla W

Read More
The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
Marseli

Read More
Thank you Nayven, Issa and team you have all gone above and beyond in helping me with my Workers Compensation case. You are all very professional, thorough and compassionate, thank you all once again!
David L

Read More
A big thank you and commendation to the team at Withstand Lawyers. Caring and compassionate, the team achieved a fantastic result for G and guided him every step of the way with their honest and assuring advice. G and his family couldn't be more pleased with the result, even when others said he didn't have a chance. Withstand Lawyers understood the merits of the case and worked tirelessly to get a fair and just outcome. Can't thank them enough for their hard work and diligence through G's case. Highly recommended.
Emad M

Read More
I just want to thank you as you have done well in my case as I have been to many lawyers before I came to you and they were never able to work on my case thank you so much issa rabaya you were always on spots with your appointment as you always on time with all the paperwork it needed You the best one in Sydney I have worked with Kind regards Emad
Kristy W

Read More
The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
Francis A

Read More
The team really know their staff. To Nayven, Issa, Sam and Danielle a heartfelt thank you for all your hard work, courtesy, superb efforts and a big thumbs up from me.
Hazel A

Read More
Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
Hamish F

Read More
I was very happy with the professionalism with the team at Withstand Lawyers. They supported me through the whole process and were very prompt and helpful with all my enquiries. They were very competent with with the whole process which enabled me to confidentially trust them and and have a positive outcome stress free. I highly recommend this company for all insurance and superannuation matters.
Previous
Next
FREE 1st CONSULTATION
Call us now and put your mind at ease!
  • 1800 952 898
info@withstandlawyers.com
law-society-logo-orange
  • Our Team
  • Latest News
  • Privacy Policy
  • Testimonials
  • Careers
  • Contact Us
Menu
  • Our Team
  • Latest News
  • Privacy Policy
  • Testimonials
  • Careers
  • Contact Us
*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.
Kristy W

Read More
The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
Francis A

Read More
The team really know their staff. To Nayven, Issa, Sam and Danielle a heartfelt thank you for all your hard work, courtesy, superb efforts and a big thumbs up from me.
Zilla W

Read More
The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
Hazel A

Read More
Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
Previous
Next

*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.

Company

  • Our Team
  • Latest News
  • Privacy Policy
  • Testimonials
  • Careers
  • Contact Us
  • Our Team
  • Latest News
  • Privacy Policy
  • Testimonials
  • Careers
  • Contact Us

Locations

  • Perth
  • Bunbury
  • Kalgoorlie-Boulder
  • Albany
  • Sydney CBD
  • Parramatta
  • Penrith
  • Central Coast
  • Wollongong
  • Coffs Harbour
  • Port Macquarie
  • Blacktown
  • Bankstown
  • Brisbane
  • Melbourne
FREE 1st CONSULTATION
Call us now and put your mind at ease!
  • 1800 952 898
Facebook-f Instagram
© 2023 Withstand Lawyers | Privacy Policy

Liability limited by a scheme approved under Professional Standards Legislation

Select Your State

Please choose your state below so we can show you the most relevant information.
NSW
WA