WorkCover common law claims in Queensland: how damages against your employer differ from statutory benefits

In Queensland, a work injury can lead to two separate claims. A statutory WorkCover claim pays benefits such as weekly payments and medical costs, and you do not have to prove anyone was at fault. A common law claim is a claim for damages against your employer, and you must prove your employer was negligent. In most cases you need a WorkCover notice of assessment before you can claim damages, and time limits apply.

In this guide: What it is; Key differences; Suing your employer; Claiming WorkCover first; The lump sum choice; What damages cover; Steps and time limits; Practical steps; FAQs.

Queensland law as at 25 September 2026. Section numbers refer to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) unless another Act is named.

What is a WorkCover common law claim?

A WorkCover common law claim is a claim for damages against your employer when the employer’s negligence caused your work injury. The law calls this money “damages” to set it apart from WorkCover “compensation”. You claim against your employer, not against WorkCover. But WorkCover Queensland, or your employer if it is self-insured, handles the claim on the employer’s behalf.

Where the right comes from

Damages are for a liability your employer has “independently of this Act” (s 10(1)). In plain terms, that is the ordinary law of negligence. Compensation is the money paid under the Act itself (s 9).

Who the claim is against

Generally your employer, not WorkCover (s 300(1)). WorkCover may run the claim for the employer (s 300(5)), and a self-insured employer runs its own (s 87, s 300(6)). A claim can be brought against WorkCover itself only in narrow cases, such as when the employer company has been wound up (s 300(2)). The Queensland Law Handbook notes that damages are usually paid by WorkCover under the employer’s insurance, or by the self-insured employer.

Statutory benefits vs common law damages: the key differences

The main difference is fault. Statutory WorkCover benefits are paid without anyone having to prove fault, if your work was a significant contributing factor to the injury. Common law damages are only available if you prove your employer was negligent. Statutory benefits follow set formulas and stop at fixed points. Damages are assessed under rules a court applies, and can include pain and suffering and future loss of earnings.

	Statutory WorkCover claim	Common law damages claim
What it is	Compensation paid under the Act (s 9)	Damages from your employer for negligence (s 10)
Do you need to prove fault?	No. Your employment must be a significant contributing factor to the injury (s 32(1))	Yes. You must prove a breach of duty that caused the injury (ss 305B, 305D, 305E)
Who you deal with	An application to WorkCover Queensland or your employer’s self-insurer, with a medical certificate (s 132)	A notice of claim to the insurer. The claim is against your employer (ss 275, 300)
What it can cover	Weekly payments; medical treatment, hospital and related expenses; a lump sum for a permanent impairment (chapter 3, parts 9 and 10; chapter 4)	General damages (pain and suffering, loss of amenities of life), past and future loss of earnings, and future medical and other expenses (s 306)
How the amount is worked out	Formulas in the Act and regulations. The lump sum depends on your degree of permanent impairment (DPI) (s 180)	Rules a court applies. General damages use an injury scale from 0 to 100 (s 306O). Loss of earnings is capped at 3 times QOTE a week (s 306I)
When it ends	Weekly payments stop when the incapacity ends, after 5 years, or at the maximum amount (s 144A)	With a settlement or a court’s judgment (WorkCover Queensland)
Main time limit	Generally 6 months after the entitlement arises, with waivers in some cases (s 131)	Generally 3 years (Limitation of Actions Act s 11; ss 275(1), 302). See personal injury time limits
If you were partly at fault	Fault is not the test (s 32(1)). Narrow exclusions apply, such as serious and wilful misconduct (s 130)	Damages can be reduced, even by 100% (ss 305F to 305H)
How the two interact	If your DPI is under 20%, accepting the lump sum ends the right to damages, apart from a narrow exception for a later serious deterioration (ss 189, 237(3), (4), 239, 266)	WorkCover compensation already paid is deducted from damages (s 270(1))

Queensland law as at 25 September 2026. QOTE is Queensland full-time adult ordinary time earnings (s 10A).

Can I sue my employer for negligence in Queensland?

Yes, if your employer’s negligence caused your injury and you follow the steps in the Workers’ Compensation and Rehabilitation Act 2003. You must show the risk was foreseeable and not insignificant, that a reasonable employer would have taken precautions, and that the failure caused your injury. In most cases you first need a WorkCover notice of assessment. The claim goes through set pre-court steps before any court case starts.

What you must prove

Negligence is often described in four parts: a duty of care, a breach of that duty, the breach caused the injury, and loss. Under the Act, your employer breached its duty only if the risk was foreseeable and “not insignificant”, and a reasonable person in its position would have taken precautions (s 305B(1)). The court weighs the likelihood and seriousness of injury against the burden of precautions (s 305B(2)). You must prove, on the balance of probabilities, that the breach caused the injury (ss 305D, 305E).

Examples of employer negligence

WorkCover Queensland says employers must provide a safe place to work, safe ways of doing the job, suitable tasks, equipment that works properly, and proper training and instructions. A failure may be negligence if it meets the tests above. For example:

• an unsafe system of work
• missing guarding or safety equipment
• no training or supervision for a risky task
• a known hazard left unfixed.

Can I sue my employer for stress and anxiety?

A psychological injury can be a work injury in Queensland if your employment was a significant contributing factor (s 32(1)). It is not a work injury if it came from reasonable management action taken in a reasonable way, such as a transfer, demotion or disciplinary action handled reasonably (s 32(5)). To claim damages you must still prove negligence. A medical assessment tribunal, not a single doctor, assesses the DPI for a psychological injury (s 179(2)(b)).

What if I was partly at fault?

Your damages can be reduced for contributory negligence, which means you did not take reasonable care for your own safety. One example in the Act is not using safety equipment your employer provided and properly instructed you to use (s 305H(1)(b)). A court can reduce damages by 100%, which defeats the claim (s 305G). Intoxication brings a presumption of contributory negligence (s 305J).

What if someone other than my employer caused the injury?

A claim against someone else follows different rules. In an example in the Personal Injuries Proceedings Act 2002 (Qld), a worker is hurt by a design fault in a machine another company designed. The claim against the employer follows the WorkCover pre-court steps, and the claim against the designer follows that Act’s steps (PIPA s 6(2)(c)). See public liability claims. If a motor vehicle was involved, the Motor Accident Insurance Act 1994 (Qld) may apply instead (PIPA s 6(2)(a); see CTP claims in Queensland).

Do you have to make a WorkCover claim first?

Not always. But you generally need a notice of assessment from WorkCover or the self-insurer before you can seek damages (s 237(1)(a)). A worker who has lodged a WorkCover claim can ask the insurer to assess their permanent impairment, and the notice follows (ss 179(1), 185(1)). A worker who has not made a claim can instead apply to the insurer only to have the injury assessed (s 132A(2)). A worker with a terminal condition does not need a notice of assessment (s 237(1)(a)(iii)).

If you apply only for an assessment, the insurer must decide within 40 business days, and allowing the application does not entitle you to compensation (s 132A(6), (12)). WorkCover Queensland says that on this path you receive no weekly compensation, medical expenses or lump sum offer, and the claim is still investigated.

Applications are lodged with WorkCover Queensland or your employer’s self-insurer (ss 132(2), 132A(3)). You can lodge a WorkCover application with WorkCover Queensland. If your application was rejected, see the question on this below.

If you accept the WorkCover lump sum, can you still sue?

It depends on the degree of permanent impairment (DPI) in your notice of assessment. If it is under 20% and you are offered a lump sum, you must make a one-off choice: accept the lump sum, or seek damages. You cannot have both, and you cannot change your choice later. If your DPI is 20% or more, you can accept the lump sum and still seek damages, but WorkCover compensation already paid is taken off any damages.

If your DPI is under 20%, or there is no DPI

The insurer must give you copies of the relevant sections and tell you the election is irrevocable, meaning final (s 189(2)). You have 20 business days after the notice to accept, reject or defer the offer in writing (ss 186(2), 189(3)). Lodging a notice of claim for damages without answering counts as rejecting the lump sum (s 189(6), (7)). Accepting ends the right to seek damages for that injury (s 237(3); s 239(2)), and choosing damages cannot be undone (s 239(3)). A notice showing no DPI has no lump sum to accept, but still lets you seek damages (ss 189(1)(b), 237(1)(a)(i)).

One narrow exception applies. If the same injury later gets materially worse, adding 10% or more to your DPI and taking it to 20% or more, you may be able to seek damages. This needs new medical evidence and must be raised within the time limit for starting a court case (s 266).

If your DPI is 20% or more

You may accept the lump sum or defer your decision (s 188(2)) and still seek damages (s 237(1)(a)(i)). Compensation paid, including the lump sum, is deducted from any damages (s 270(1)). The 20% cannot be reached by adding a psychological injury to a physical one (s 179(5); WorkCover Queensland).

If you disagree with your DPI

Tell the insurer within 20 business days after the notice (s 186(2)). You can ask for a new assessment by an entity you and the insurer agree on, or for a medical assessment tribunal to decide. This is not open if a tribunal has already decided your DPI, as it does for every psychological injury (ss 179(2)(b), 186(1)(a)).

What happens to weekly payments

After a notice of assessment, compensation generally stops once you tell the insurer your decision about the offer, or 20 business days after you received the offer, whichever comes first (s 190(2)). This does not affect some lump sums, including a lump sum you accept (s 190(3)).

Is there a minimum impairment level to sue in Queensland?

No minimum DPI is set in Queensland for seeking damages (s 237(1)). What matters is that you have a notice of assessment and, if your DPI is under 20%, that you chose damages rather than the lump sum. Some websites mention thresholds such as “15% whole person impairment”. That is not a test in the Queensland Act.

Costs rules for a damages claim differ for a DPI under 20% and a DPI of 20% or more (s 240). WorkCover Queensland notes that if a claim goes to trial and you are unsuccessful, you may need to pay costs.

What are common law damages, and what can they cover?

Common law damages are money for the loss your injury caused, paid by or on behalf of the employer whose negligence caused it. They can include general damages for pain and suffering and loss of enjoyment of life, past and future loss of earnings, and future medical and other expenses. The Act caps loss of earnings, sets a scale for general damages and deducts WorkCover compensation already paid. No article can predict an amount.

What the Act limits

• General damages (pain and suffering, loss of amenities of life, loss of expectation of life, disfigurement) get an injury scale value from 0 to 100, under rules in a regulation (ss 306, 306O, 306P).
• Loss of earnings is capped at the present value of 3 times QOTE per week of loss (s 306I).
• Future losses are worked out with a 5% discount rate (s 306L).
• Unpaid care from family or friends generally cannot be claimed (ss 306D to 306H).
• WorkCover compensation already paid is deducted (s 270(1)).

How are common law damages paid?

WorkCover Queensland says damages are paid once a settlement is reached or a court gives its verdict. If both sides apply, a court can approve a structured settlement, where all or part of the damages is paid in regular payments over time (ss 306Q, 306S). Some amounts, such as Medicare or Centrelink refunds, may be repaid from damages. A signed settlement agreement ends further claims for the injury (WorkCover Queensland).

The steps in a WorkCover common law claim, time limits and how long it takes

A WorkCover common law claim follows set pre-court steps. You give a notice of claim for damages to the insurer. The insurer checks it, investigates and must say whether it admits liability within 6 months. A compulsory conference follows, where both sides try to settle. If the claim does not settle, each side makes a written final offer. Only then can court proceedings start. The Act sets time limits for most steps.

1. Statutory application, decided by the insurer within 20 business days (s 134(2)). A worker who has not made one can apply for an impairment assessment only, decided within 40 business days (s 132A(6)).
2. Impairment assessment, usually once the injury has stabilised. The notice of assessment follows within 10 business days (s 185(1)).
3. Your response to the notice within 20 business days (ss 186(2), 189(3), 190(2)).
4. Notice of claim for damages in the approved form, to the insurer, with a copy to your employer unless it is self-insured (s 275(2)). It needs a statutory declaration, an offer of settlement or reasons, an authority to obtain records and copies of supporting documents. A lawyer acting for you adds a law practice certificate (s 275(5) to (8)).
5. Compliance check within 10 business days. If the insurer says nothing, the notice is taken to comply (s 278(2), (4)).
6. Liability decision within 6 months, or 3 months for a terminal condition (s 281(2), (3)).
7. Compulsory conference within 3 months after that decision, or later if both sides agree (s 289(3), (4)). Documents are exchanged at least 5 business days before (s 290A(1)).
8. Written final offers if the claim does not settle, each open for 10 business days (s 292(2), (9)).
9. Court proceedings, decided by a judge without a jury (s 301).

Time limits for a common law claim

Generally, a court case for personal injury damages must start within 3 years from the date the cause of action arose, which in most cases is the date of the injury (Limitation of Actions Act 1974 (Qld) s 11(1); s 236). For a WorkCover damages claim, the notice of claim must be given within that period (s 275(1)). If it is, the case can start after the 3 years, but must start within 60 days after the compulsory conference (s 302(1) to (3)).

Schedule 5 of the Act changes these dates in some cases, such as a notice of assessment given in the last 6 months of the 3 years, or an application under review. The statutory application limit is generally 6 months, and the insurer can waive it in some cases (s 131(1), (4) to (6)). For other deadlines, see personal injury time limits in Queensland.

How long does a WorkCover common law claim take?

There is no set total time. The Act fixes some steps, such as 6 months for the insurer to decide liability and 3 months after that for the compulsory conference. Before that, the injury usually needs to settle enough for your impairment to be assessed, and that depends on your recovery. WorkCover Queensland says “Most claims take up to a year to reach an agreement”, and that the court process “can take up to a year or longer”.

Practical steps that protect your rights after a work injury

Good records make any claim easier to assess, whether it is a statutory claim or a damages claim. The steps below are general information. They are not advice about your situation.

1. See a doctor soon and ask for a work capacity certificate, the medical certificate WorkCover uses. An application must include one (s 132(3)).
2. Tell your employer about the injury, and note when you did. WorkCover Queensland says this helps, because it asks employers for information when it assesses a claim.
3. Know the statutory time limit: generally 6 months, and lodging more than 20 business days after the entitlement arises can limit back payments (s 131(1), (2)). The insurer can waive these limits in some cases, such as a mistake or a reasonable cause (s 131(4) to (6)).
4. Keep a diary of appointments, symptoms, who you spoke to and what was said.
5. Keep copies of certificates, letters, claim numbers, pay slips, tax returns and receipts. A notice of claim must include supporting documents, such as medical reports, receipts and, if you claim lost earnings, tax records for the 3 years before the injury (s 275(8)).
6. Confirm meetings and phone calls by email, or write a note straight after.
7. Check that WorkCover or the self-insurer has received your application.
8. Take part in rehabilitation and any return to work program, as the Act requires of a worker seeking damages (s 267(2), (3)). Raise any concerns with your doctor.
9. Attend any medical examination the insurer arranges (see the questions below).
10. Talk about the incident with co-workers only when needed, such as for a safety investigation or to identify witnesses.
11. Read a notice of assessment carefully. If your DPI is under 20%, your choice is final (ss 189, 239). You can get independent advice before you decide.

Frequently asked questions

Do I need a lawyer for WorkCover?

You do not need a lawyer to lodge a statutory application with WorkCover Queensland or a self-insurer (s 132(2)). WorkCover Queensland says you do not have to use a lawyer for a common law claim either, and that Legal Aid usually does not cover these claims. A damages claim has the formal steps set out above (ss 275 to 302). If a law practice acts for you, it must include a law practice certificate with the notice of claim (s 275(7A)).

Can I claim damages if WorkCover rejected my application?

You can ask the Workers’ Compensation Regulator to review a decision to reject your application (s 540(1)). You generally have 3 months after you receive the decision and its reasons, and the Regulator can allow more time once, in special circumstances (s 542(1) to (3)). A special time rule applies to damages claims while an application is under review or appeal (schedule 5, section 2). Whether damages remain possible depends on your facts.

What happens at a compulsory conference?

It is a meeting between you, the insurer and anyone else involved, held before any court case (s 289(1)). You must attend and take part unless you have a reasonable excuse (s 289(8)). If meeting in one place would be unreasonable, for example because of distance or illness, it can be held by phone or video (s 289(9)). If the claim does not settle there, each side makes a written final offer (s 292(2)).

Does it matter if my employer is self-insured?

The steps are the same. The self-insurer, not WorkCover Queensland, decides your application, receives your notice of claim and runs the claim for the employer (ss 87, 275(2), 300(6); schedule 6, definition of insurer).

Can the insurer make me see its own doctor?

The insurer can require you to attend a medical examination by a registered person at a place reasonably convenient for you. If you do not attend without a reasonable excuse, your compensation is suspended until you do (s 135(1) to (3)).

How we can help

To talk to Catton Roderick Lawyers about a personal injury matter, call 1300 673 792 or email info@cattonroderick.com.au. We have offices in Caboolture and Redcliffe, and see clients in Birtinya (Sunshine Coast) and Brisbane by appointment.

• Personal injury enquiries in Caboolture
• Personal injury enquiries in Redcliffe
• Sunshine Coast personal injury enquiries (Birtinya, by appointment)
• Brisbane personal injury enquiries (by appointment)

You can also send an enquiry through our contact page.

This page is general information about Queensland law as at September 2026. It is not legal advice about your situation. Time limits apply, so please get advice about your own circumstances.

Sources

Law checked on 25 September 2026 against the versions in force on that date.

1. Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 9, 10, 10A, 32, 87, 130, 131, 132, 132A, 134, 135, 144A, 179, 180, 185, 186, 188, 189, 190, 236, 237, 239, 240, 266, 267, 270, 275, 278, 281, 289, 290A, 292, 300, 301, 302, 305B, 305D, 305E, 305F, 305G, 305H, 305J, 306, 306D to 306I, 306L, 306O, 306P, 306Q, 306S, 540, 542, schedule 5 and schedule 6. Version in force from 1 January 2025. https://www.legislation.qld.gov.au/view/html/inforce/current/act-2003-027 (accessed 25 September 2026)
2. Limitation of Actions Act 1974 (Qld), s 11. Version in force from 28 April 2026. https://www.legislation.qld.gov.au/view/html/inforce/current/act-1974-075 (accessed 25 September 2026)
3. Personal Injuries Proceedings Act 2002 (Qld), s 6. Version in force from 1 July 2024. https://www.legislation.qld.gov.au/view/html/inforce/current/act-2002-024 (accessed 25 September 2026)
4. WorkCover Queensland, “How to make a claim” (last updated 13 May 2026). https://www.workcoverqld.com.au/claims-and-payments/claims/how-to-make-a-claim (accessed 25 September 2026)
5. WorkCover Queensland, “Making a common law claim” (last updated 4 June 2026). https://www.workcoverqld.com.au/claims-and-payments/common-law-claims-and-damages/making-a-common-law-claim (accessed 25 September 2026)
6. WorkCover Queensland, “Getting legal help” (last updated 29 June 2026). https://www.workcoverqld.com.au/claims-and-payments/common-law-claims-and-damages/getting-legal-help (accessed 25 September 2026)
7. WorkCover Queensland, “Negotiating outside of court” (last updated 5 June 2026). https://www.workcoverqld.com.au/claims-and-payments/common-law-claims-and-damages/negotiating-outside-of-court (accessed 25 September 2026)
8. WorkCover Queensland, “How damages are calculated and paid” (last updated 4 June 2026). https://www.workcoverqld.com.au/claims-and-payments/common-law-claims-and-damages/how-damages-are-calculated-and-paid (accessed 25 September 2026)
9. Queensland Law Handbook, “Common Law Claim for Damages against an Employer” (community legal centre guide, last updated 28 June 2025; secondary source). https://queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-wellbeing/accidents-and-injury/common-law-claim-for-damages-against-an-employer/ (accessed 25 September 2026)

This article is general information about Queensland law as at September 2026. It is not legal advice. Get advice about your own situation.

Reviewed by: Dr Darren Catton, Principal, Catton Roderick Lawyers

Last reviewed: 27 September 2026