Common Law and Statutory Claims – What’s the Difference?

Workers’ Compensation claims fall under two distinct categories; common law and statutory claims. Understanding these two systems can save a lot of confusion in the long run so we’re taking the time to explain these types of claims and the processes they involve.

Statutory Claims for Workers’ Compensation

The statutory claim system is a ‘no fault’ system. At face value, this means that injured employees are free to make a claim for benefits regardless of who was at fault for the accident. The benefits of statutory claims include payment for income loss, medical treatments, travel expenses and permanent impairment.

Common Law Claims for Workers’ Compensation

A common law claim always starts as a statutory claim that has been lodged and accepted by WorkCover. To be eligible for a common law claim, the injured worker must have proof of their employer’s negligence – most workplace injuries are avoidable and often stem from defective equipment or a lack of cautionary procedures.

If a worker can successfully prove their employer’s negligence, a significantly higher sum of compensation will be offered at the close of the claim. Common law covers pain and suffering, economic loss, and all future medical treatments.

Legal Process for Claims

Common law is determined via a combination of research analysis, previous relevant cases and the extraction of passed sentences. Decisions of higher courts rule over lower courts and previous cases. In terms of statutory laws, these have already been written and are simply applied to the case in question.

WorkCover acts as the insurer for most businesses and employers in Queensland. WorkCover will defend the claim on behalf of the employer and attempt to resolve the dispute with the injured party as part of a pre-court process – this is considered to be the process with the least hassle involved.

If this informal process is unsuccessful, WorkCover will undertake a compulsory settlement conference with both parties. If the formal process is also unsuccessful, the case proceeds to litigation and will potentially lead to a trial. Average common law cases take 12 months to resolve but legal involvement can lengthen the process.

Seeking Legal Advice for Workers’ Compensation

There are two ways of settling a workers’ compensation claim and these processes require a compensation lawyer’s support:

  • Settlement by negotiation: When negotiating with opposing lawyers, you may be at a significant disadvantage without appropriate legal advice. Consult an attorney before considering any settlement.
  • Court action: To pursue a compensation claim in court, it is mandatory to have legitimate legal services in your favour. The considerable legal processes, documentation and witness matters make court actions extremely confusing without a lawyer.


To receive your maximum entitlements, request the assistance of one of the compensation law experts at Brisbane Lawyers. Contact our team online or by calling 07 3188 5800.