Right to pursue common law damages
The following information only applies to workers insured for workers' compensation under the SRC Act.
If you are employed by the Commonwealth, a licensed corporation or any other employer insured for workers' compensation under the SRC Act, your ability to pursue a common law claim for damages against your employer is limited.
Workers insured for workers' compensation under the SRC act are unable to pursue a common law claim for damages against their employer unless their injuries have resulted in a permanent impairment of 10 per cent or more. The injured worker must also elect between accepting lump sum compensation for permanent impairment or pursuing a common law clam for personal injury damages.
Further, if you do commence a common law claim against your employer, the Court will only be able to award you damages for non-economic loss (such as damages for pain and suffering, and unpaid domestic care), and not for past or future loss of income, or past or future medical expenses. Additionally, the amount of damages that the Court can award is capped.
it is important to seek advice before deciding to whether to accept lump sum compensation for permanent impairment or pursue a common law claim for damages.
The SRC Act does not restrict your ability to pursue a common law claim for damages against someone other than your employer (although your rights to pursue that action may be restricted under other legislation).
Strict time limits apply to commencing common law claims for damages. It is important that you seek legal advice as quickly as possible so that you can protect your interests.