Statutory or common law claim in WorkCover Queensland (2026)

Statutory claim vs common law claim at a glance

Queensland’s Workers’ Compensation and Rehabilitation Act 2003 (WCRA) sets up both paths. Our WorkCover claims guide gives the full overview. This table compares a statutory claim and a common law claim side by side.

How a statutory claim works compared with a common law claim

A statutory claim is the standard WorkCover claim. Under s 108, compensation is payable for an injury a worker sustains. You don’t have to show that anyone was at fault. However, you must lodge within 6 months under s 131, and the insurer must decide within 20 business days under s 134. Our guide on how to lodge a WorkCover claim sets out the steps.

Statutory benefits have limits. For example, s 144A stops weekly payments when the incapacity ends, after 5 years of payments, or when payments reach the maximum. That maximum is 216.15 times QOTE under s 140. If the injury leaves a permanent impairment, you may receive a lump sum, explained in our WorkCover lump sum guide.

How a common law claim works

A common law claim is a claim for damages against your employer. WorkCover Queensland says that “it’s up to you to prove this caused your injury and the losses caused by your injury, including income”. So evidence about how the injury happened matters a great deal.

There is a gateway. Under s 237, a worker can generally seek damages only after receiving a notice of assessment for the injury. There are exceptions, such as for a worker with a terminal condition. Also, you don’t need a statutory claim before a common law claim. Under s 132A, a worker who hasn’t claimed compensation can apply for a permanent impairment assessment instead.

The common law process before court

Before you can go to court, the Act requires several steps. First, under s 275, you give the insurer a notice of claim for damages. It must include prescribed details, a genuine offer of settlement (or reasons why you can’t make one yet) and supporting documents.

Next, the parties must hold a compulsory conference under s 289. It generally happens within 3 months after the insurer gives written notice under s 281, unless the parties agree to a later date. If the claim doesn’t settle there, each party must make a written final offer under s 292. Each offer stays open for 10 business days.

Finally, the time limit is strict. Under s 302 and the Limitation of Actions Act 1974 s 11, the general period is 3 years. If you gave a complying notice of claim within that time, you can start court proceedings later. However, you must do so within 60 days after the compulsory conference.

How a statutory claim and a common law claim interact

The two paths overlap in three main ways. First, the 20% DPI threshold controls whether you can have both a statutory lump sum and damages. Under s 239, if your DPI is under 20%, you can’t receive both. If it is 20% or more, s 188 lets you accept the lump sum and still seek damages.

Second, statutory benefits end. Under s 190, once you get a notice of assessment, further compensation stops after you respond to the offer or 20 business days pass. Likewise, s 119 ends any remaining entitlement when you settle or get judgment for damages. WorkCover says that if you lodge a common law claim, your statutory claim “will stop”.

Third, money already paid comes back out. Under s 207B, compensation the insurer paid is a first charge on damages you recover for the same injury. As a result, the insurer gets that amount back from the damages before you receive the balance.

Costs in a common law claim

Costs rules differ by DPI. Under s 240, a worker with a DPI under 20% falls under the rules in s 316. If the court awards damages equal to or more than your written final offer, the insurer pays your costs from that offer. However, if it awards no more than the insurer’s final offer, or dismisses the claim, you pay the insurer’s costs from its offer. Otherwise, each side pays its own costs.

Your own legal costs are separate. If a lawyer acts on a speculative basis, the 50/50 rule in Legal Profession Act s 347 caps their costs. Our fees guide explains it.

Which path applies to a statutory claim vs common law claim

This page compares a statutory or common law claim. It doesn’t say which one suits you. A statutory claim doesn’t depend on fault, whereas a common law claim depends on proving negligence and meeting the pre-court steps.

Several questions shape the choice. What is your DPI, can you prove negligence, and how close are the deadlines? If you are weighing a lump sum offer, our guide to the WorkCover lump sum vs common law covers that decision. A Queensland lawyer can advise on your own facts, and our comparison pages explain how we compare firms.

Frequently asked questions