A work injury damages claim allows eligible employees to seek compensation when their injury was caused by employer negligence. While this term is commonly used, it specifically refers to a common law claim, a separate legal process outside the standard workers’ compensation statutory scheme. Unlike the no-fault system, which provides treatment and wage support, a common law damages claim requires proof of negligence and can offer broader compensation.
But this process is not automatic. It involves specific legal steps, strict time limits, and detailed documentation. Many injured workers are unsure where to start or whether they even qualify. This guide breaks down the process into clear, practical steps, from checking your eligibility to finalising your claim, so you can move forward with confidence.
If your injury has left a lasting impact, understanding your options now could make all the difference later.
Step 1 – Confirm You Are Eligible
A Work Injury Common Law Damages Claim is not available to every injured worker. Before you begin the process, you need to meet five legal requirements. These ensure that damages claims are only pursued in serious cases where an employer may have been at fault.
First, your injury must be directly connected to your work. It should have occurred at work or while performing a work-related task. Second, your statutory workers’ compensation claim must already be accepted by WorkCover or a self-insurer. Without this step, you cannot move forward with damages claim.
Third, your injury must be medically assessed for permanent impairment. This happens once your condition stabilises. Fourth, you must receive a Notice of Assessment confirming the level of impairment. Finally, the claim must be based on negligence, meaning your employer failed to provide a safe workplace or breached their duty of care in some way.
The table below summarises these requirements:
| Requirement | What It Means |
| Injury linked to your work | Must have occurred during or because of work |
| Statutory claim accepted | WorkCover or a self-insurer has approved your initial claim |
| Permanent impairment assessed | A medical evaluation has confirmed ongoing impact |
| Notice of Assessment issued | Official document verifying the level of impairment |
| Employer negligence involved | There is evidence the employer breached their legal responsibility |
If your impairment rating is less than 20%, you must choose between accepting a lump sum under the statutory scheme or proceeding with a damages claim. You cannot do both. If your impairment is 20% or higher, you are allowed to accept the lump sum and still pursue a common law claim.
Meeting these criteria is the first step in determining if you have a viable case. Once confirmed, you can begin preparing your documents to support the claim.
Step 2 – Gather Your Documents Early
Before making a work injury damages claim, it is important to build a solid foundation of evidence. The strength of your documentation can influence how quickly your claim progresses and whether it is taken seriously by the insurer or the court.
Start by compiling all medical records related to your injury. These include treatment notes, diagnostic results, rehabilitation plans, and especially your permanent impairment assessment. You will also need your Notice of Assessment, which outlines the degree of impairment determined by a medical practitioner.
Employment documents are equally important. Payslips, superannuation contribution records, and correspondence with your employer can help establish your financial losses. If the incident was reported at work, secure a copy of the workplace or incident report.
You should also include:
- Photos from the scene of the incident (if available)
- Written accounts from any witnesses
- Receipts for out-of-pocket medical or care-related expenses
The more complete your documentation, the easier it is to show the link between your injury, the employer’s negligence, and the impact on your ability to work. While legal assistance is not yet required at this stage, getting organised early puts you in a stronger position as the process moves forward.
Step 3 – Understand the Time Limits
Strict deadlines apply to every stage of a work injury common law damages claim. Missing any of these can result in your claim being denied, regardless of how strong the evidence is or how serious the injury may be.
The first key deadline relates to your statutory claim. You generally have six months from the date of injury, or from when you first consulted a doctor about it, to lodge a workers’ compensation claim with WorkCover or a self-insurer. While some exceptions exist, acting within the timeframe helps avoid unnecessary complications.
If you decide to pursue a work injury damages claim through legal action, the three-year limitation period becomes critical. Legal proceedings must begin within three years of the date the injury occurred, or from when you reasonably became aware that your injury was work-related. This time limit is governed by the Limitation of Actions Act and is strictly applied.
If your claim advances to a compulsory settlement conference and fails to resolve, there is one final deadline to meet: 60 days to file formal court proceedings from the date final offers are exchanged. Missing this step will likely result in the claim lapsing altogether.
To help keep track, refer to the timetable below:
| Action | Time Limit | Timeframe Starts From |
| File court claim after failed settlement | 60 days | Date of final offer exchange |
| Lodge statutory workers’ compensation claim | 6 months | Date of injury or first medical consultation |
| Begin court action for damages | 3 years | Date of injury or date of discoverability |
Every stage is bound by law. Delays can permanently affect your ability to seek compensation.
Step 4: Decide Whether to Pursue Damages
Once your injury has stabilised and you receive your Notice of Assessment, you will need to make a critical decision. This document confirms the degree of permanent impairment and determines your legal options moving forward.
If your impairment is assessed at less than 20%, you must choose between accepting the lump sum compensation offered under the workers’ compensation statutory scheme or pursuing a work injury common law damages claim. You cannot do both. Accepting the lump sum effectively closes off the path to a separate negligence claim.
If your impairment is 20% or more, you are allowed to accept the lump sum and still bring a common law claim. This threshold is a key turning point in the process.
The decision to proceed with a damages claim should be based on several factors:
- The long-term impact of your injury on your ability to work
- The adequacy of the lump sum offer compared to your actual financial loss
- Whether there is clear evidence of employer negligence
Seeking legal advice at this point can help you weigh the risks and benefits. Once you move forward with a damages claim, the process becomes more formal and requires a higher standard of proof.
Step 5: Serve a Formal Notice of Claim
If you decide to pursue a work injury damages claim, the next step is to formally notify your employer or their insurer. This is done by serving a Notice of Claim under Queensland’s personal injury laws.
This notice sets the legal process in motion. It must include specific details, such as the nature of the injury, the alleged negligence, and the compensation being sought. You will also need to attach supporting documents, including your Notice of Assessment and any relevant medical or employment records.
Once the notice is received, your employer or insurer is required to respond. From there, both parties enter a pre-court phase where information is exchanged, and the groundwork for negotiation is laid. This phase includes:
- Disclosure of relevant medical and employment records
- Clarification of the basis for the claim
- Preparation for a compulsory settlement conference
Serving this notice is a formal legal step and must comply with strict procedural rules. Mistakes or omissions can lead to delays or even rejection of the claim, so it is essential to ensure accuracy and completeness. Many claimants seek legal assistance at this stage to avoid technical errors and keep the process on track.
Step 6: Participate in Negotiation or Mediation
After serving the Notice of Claim, both parties move into the negotiation phase. This stage provides an opportunity to resolve the work injury common law damages claim without going to court. A compulsory settlement conference is typically arranged, where both sides meet to discuss the evidence, liability, and potential compensation.
In preparation for the conference, the employer’s insurer may request further documents, such as updated medical reports, treatment summaries, or wage details. These are used to evaluate the strength of the claim and determine an appropriate settlement offer.
During the conference, the goal is to reach a mutually acceptable agreement. If both parties agree, the claim is finalised through a lump sum payment, and court proceedings are avoided. Settlement at this stage is common and often preferred for its speed and reduced cost.
However, if no agreement is reached, the claimant must decide whether to escalate the matter further. The outcome of the negotiation shapes the next step in the legal process.
Step 7: Go to Court (If Needed)
If settlement negotiations fail, the next step is to commence formal legal proceedings. You have 60 days from the date of final offer exchange at the settlement conference to file a court claim. Missing this deadline can result in your claim lapsing, so timing is critical.
Court proceedings are more complex and time-consuming than pre-court negotiations. They may involve gathering sworn statements, obtaining expert opinions, and presenting evidence before a judge. Cross-examination of witnesses and expert testimony may also be required to establish fault and assess damages.
While most claims are resolved before reaching trial, court remains an essential path when liability is disputed or settlement terms cannot be agreed upon. With proper preparation and legal guidance, the court process offers a structured way to resolve unresolved issues and obtain a decision.
Step 8: Understand What You Can Claim
A successful work injury common law damages claim provides compensation for long-term financial loss and, in some cases, personal impact. Unlike standard workers’ compensation, which covers weekly payments and immediate medical needs, damages claims focus on broader economic harm.
Common categories of compensation include:
- Past economic loss – Covers wages lost during your recovery period.
- Future economic loss – Reflects your reduced capacity to earn over time due to permanent impairment.
- Superannuation – Accounts for missed employer contributions while you were unable to work.
- Medical expenses – May include long-term treatment, specialist care, or rehabilitation not covered under the statutory scheme.
- Pain and suffering – In certain cases, lump sum compensation may be awarded, though it is subject to statutory limits and must meet legal thresholds.
The value of a claim depends on the severity of the injury, your age, employment history, medical evidence, and how the injury affects your future. Accurate documentation and clear evidence strengthen your position when negotiating a settlement or presenting your case in court.