A WorkCover common law claim is a claim for damages against an employer for a work injury caused by negligence or breach of duty. It is separate from the statutory WorkCover claim that pays weekly benefits and medical expenses, and it runs on its own set of rules. In Queensland those rules sit in Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and most of them must be followed before a court proceeding can start.
This article sets out that process in order, from the notice of claim to the point where court proceedings can begin. It explains how the process works, not what claims are worth.
Who can seek damages: the notice of assessment comes first
Section 237(1) of the Act lists the only people entitled to seek damages for a worker’s injury. For a living worker, the usual gateway is a notice of assessment from the insurer, which records the worker’s degree of permanent impairment (DPI). A worker with a terminal condition, and in some circumstances a dependant of a deceased worker (s 237(1)(b)), are also entitled.
Where the notice of assessment records a DPI of less than 20%, s 239 applies. The worker cannot have both the lump sum and damages (s 239(2)). Accepting the lump sum ends the entitlement to seek damages, apart from the limited exception preserved by s 237(4) (s 237(3)). An election to seek damages, once given to the insurer, cannot be changed (s 239(3)). Our article on WorkCover and common law and the 20% impairment decision covers this choice in detail.
The process at a glance
The table sets out the main pre-court steps and the time limits the Act attaches to them.
| Step | Time limit | Source |
|---|---|---|
| Claimant gives notice of claim for damages | Within the limitation period referred to in s 302(1), generally 3 years from the date the cause of action arose | ss 275(1) and 302(1); Limitation of Actions Act 1974 (Qld) s 11(1) |
| Insurer says whether the notice complies | Within 10 business days, or the notice is taken to comply | s 278(2) and s 278(4) |
| Claimant and insurer exchange relevant documents | Within 21 business days after the notice of claim | s 279(3) |
| Insurer states its position on liability | Within 6 months after a complying notice (3 months for a terminal condition) | s 281(2) and s 281(3) |
| Compulsory conference | Within 3 months after the insurer’s liability notice, unless the parties agree to a later date | s 289(3) and s 289(4) |
| Written final offers | Made at the conference if the claim does not settle; open for 10 business days | s 292(2) and s 292(9) |
| Court proceeding where the limitation period has passed | Within 60 days after the compulsory conference | s 302(2) and s 302(3) |
Step 1: the notice of claim for damages
Under s 275(1), before starting a court proceeding for damages, a claimant must give a notice of claim within the period mentioned in s 302(1). Section 302(1) ties that period to the general limitation period for personal injury under the Limitation of Actions Act 1974 (Qld), which s 11(1) of that Act sets at 3 years from the date the cause of action arose, unless schedule 5 of the WorkCover legislation provides a different period.
The notice is a substantial document. Section 275 requires it to:
- be in the approved form, given to the insurer at its registered office, with a copy to a non-self-insured employer (s 275(2));
- state to what extent, as a percentage, the claimant admits liability, or why they cannot (s 275(4));
- verify statements within the claimant’s personal knowledge by statutory declaration (s 275(5));
- include a genuine offer of settlement, or reasons why one cannot yet be made (s 275(6));
- attach an authority for the insurer to obtain information from hospitals, doctors, employers and others (s 275(7)); and
- attach supporting documents, including medical reports, income records for the 3 years before the injury, expense records and the notice of assessment (s 275(8)).
Where a law practice acts for the claimant, s 275(7A) also requires a law practice certificate. Where a claimant alleges an urgent need to start a proceeding despite not having complied with s 275, s 276 requires the notice to state the reasons for the urgency and ask the insurer to waive compliance. The insurer must answer within 3 business days (s 276(5)) and may impose conditions (s 276(6)).
Step 2: the insurer’s response
The insurer has two separate response obligations.
The first is about the notice itself. Under s 278(2), within 10 business days the insurer must say whether it is satisfied the notice complies. If not, it must identify the noncompliance, say whether it waives it, and allow at least 10 business days to fix it. It must also say whether, without admitting liability, it will meet the cost of reasonable rehabilitation. If it does not respond in time, the notice is taken to comply (s 278(4)).
The second is about liability. Under s 281(2), the insurer must give a written notice within 6 months after receiving a complying notice of claim, or 3 months for a worker with a terminal condition (s 281(3)). Under s 281(4), it must state whether liability is admitted or denied and to what extent, whether contributory liability is claimed from the worker or another party, and whether the claimant’s offer is accepted, with a counter-offer or reasons if it is not. It must also include medical reports and similar material not already provided. Time while a relevant insurer decision is under review or appeal is not counted (s 281(9)). An admission of liability is not, unless it says otherwise, an admission about the extent of the claimant’s loss (s 281(8)(c)).
Step 3: documents, information and medical examinations
Section 279 requires the parties to cooperate. The claimant and the insurer must exchange relevant documents about the event, the injury and rehabilitation within 21 business days after the notice of claim (s 279(3)), answer information requests within 21 business days (s 279(4)), and pass on later documents within 21 business days of receipt (s 279(3C)).
Under s 282(1), the insurer may ask the worker to attend a medical examination, at the insurer’s expense, by a doctor the worker selects from a panel of at least 3 nominated in the request, or an assessment of cognitive, functional or vocational capacity by a registered person the worker selects from a similar panel of appropriately qualified people. A panel may be reduced to 2 if 3 are not available (s 282(3)). The worker must comply unless the request is unreasonable or unnecessarily repetitious (s 282(2)). Our article on independent medical examinations explains what to expect at these appointments.
Step 4: the compulsory conference
Section 289(1) requires a conference of the parties before a court proceeding for damages can start. Any party may call it (s 289(2)). It must be held within 3 months after the insurer gives its liability notice under s 281, although the parties may agree to a later date (s 289(3) and s 289(4)). On application, the court may fix the time and place, or dispense with the conference for good reason (s 289(6)).
The conference is not a hearing. The claimant in person and a person authorised to settle for the insurer must attend and actively participate in an attempt to settle, unless they have a reasonable excuse (s 289(8)). It can be held by telephone or video where attending one place would be unreasonable (s 289(9)), and with a mediator if all parties agree (s 290(1)).
Getting ready for the conference
Under s 290A(1), at least 5 business days before the conference each party must exchange any outstanding documents, a statement verifying that all relevant documents have been given, and details of legal representation. A represented party’s lawyer signs a certificate of readiness, which confirms under s 290A(2) that the party is completely ready, that the needed reports have been obtained, and that the party has received a financial statement. Under s 290A(3), that statement sets out legal costs to date, estimates of costs and net damages at trial and on settlement, and the costs consequences of different trial outcomes measured against the written final offers. Our article on what happens on the day of a compulsory conference covers the conference itself in more detail.
Step 5: written final offers
If the claim does not settle at the compulsory conference, s 292(2) requires each party with legal capacity to settle to make a written final offer at the conference that would dispose of the claim if accepted. Under s 292(9), each written final offer must remain open for 10 business days, and court proceedings must not be started while it is open.
The offers matter later. Each party files its written final offer at court in a sealed envelope (s 292(10) and s 292(11)), which the court reads only after deciding the claim (s 292(12)), and then considers on costs (s 292(13)). A claim settled before proceedings ends with a signed discharge (s 293).
Step 6: when court proceedings can start
Under s 295, a claimant may start a court proceeding only after completing the pre-court and settlement steps, including the compulsory conference and written final offers, and satisfying s 296. Section 296 requires that 6 months (3 months in some cases) have passed since a complying notice of claim, waiver or court order, or that the insurer has admitted liability and either contributory liability is disputed in writing or damages cannot be agreed. Where compliance with the notice is disputed, the court can make a declaration under s 297 or give leave under s 298, on conditions.
The 60-day rule after the conference
The pre-court steps often outlast the 3-year limitation period. Under s 302(2), a proceeding can be brought after that period ends only if, before it ended, a complying notice of claim was given (or compliance was waived, or a court declaration or leave obtained) and the claimant has complied with s 295. Section 302(3) then adds a further limit: the proceeding must be brought within 60 days after the compulsory conference is held.
Published 2 November 2026.
Where this leaves an injured worker
A WorkCover common law claim runs through fixed steps with short, firm deadlines inside a longer limitation period. The threshold decision may arise when the notice of assessment arrives, and an election, once given, cannot be changed. The 60-day rule after the conference can matter as much as the 3-year limitation period. The current text of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) is published on the Queensland legislation website, and WorkCover’s process is summarised in our guide to WorkCover claims in Queensland.
Related reading
- WorkCover vs common law in Queensland: the 20% impairment decision
- Should you accept your WorkCover lump sum offer?
- The compulsory conference in Queensland injury claims: what happens on the day
- How Fraser Lawyers helps with WorkCover claims
- Contact Fraser Lawyers
Need advice? Time limits and key decisions in injury claims can be strict and easy to miss. If this is your situation, contact Fraser Lawyers to understand your rights and where you stand, with no obligation. |
This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
