We recently provided an overview of the pre-court process in Queensland for WorkCover claims. This claims process is highly effective for early resolution of claims, particularly if represented by a high-quality personal injury law expert.
However, if a WorkCover matter does not resolve at a pre-court settlement conference, we are often asked whether this means the case will end up inside a Court room. The brief answer to this question is – possibly, but unlikely.
If a matter does not resolve at a pre-court settlement conference, the parties must exchange their best offer of settlement, known as a Written Final Offer. The Written Final Offers must remain open for acceptance by either party for 14 days.
After the expiration of these offers, an injured worker has the option to commence Court proceedings which must occur within 60 days of the failed settlement conference otherwise the injured worker’s rights will be extinguished.
The commencement of Court proceedings does not guarantee a matter is destined for trial. However, it is an important step for an injured worker to consider if their matter has not resolved at a pre-court settlement conference to keep their entitlement alive and allow further negotiations to take place prior to any trial.
The first step in commencing Court proceedings is to file a Claim and Statement of Claim with the relevant Court. The following Courts have jurisdiction to determine claims for personal injury: –
- Magistrate Court (damages up to $150,000.00);
- District Court (damages between $150,000.00 and $750,000.00); and
- Supreme Court (damages over $750,000.00).
Filing and serving the Claim and Statement of Claim will set in motion a requirement for the parties to exchange various Court documents including a Notice of Intention to Defend and Defence, Reply, Statement of Loss and Damage, List of Documents and Statement of Expert and Economic Evidence.
The above steps are known as the “interlocutory steps” and take approximately four (4) months for the parties to complete.
After the interlocutory steps have been completed, the parties will usually attend another settlement conference in a genuine attempt to resolve the claim. It is common for a mediator to be involved at this stage of the negotiation process and many matters resolve at this stage of the litigation.
However, if the matter is not capable of a resolution, it will be necessary for the parties to sign a Request for Trial Date, which essentially asks the Court to set the matter down for trial.
In our experience, 99% of matters resolve without the need for the injured worker to run a trial or step inside a Court room.
It is also important that an injured worker is provided honest and pragmatic advice about whether a better outcome can be achieved by commencing Court proceedings and they are aware of all potential risks as there can be cost consequences associated with a failed or abandoned Court claim.
Accordingly, it is imperative that an injured worker has an experienced and highly regarded legal team in their corner when pursuing a common law claim and to assist when making these important decisions. A common law claim for work related injury is once and final and it is important the compensation is maximised, whether or not that requires the commencement of Court proceedings.
vbr Lawyers are very experienced in all forms of personal injury litigation and have assisted many clients navigate the complex litigation process and have successfully pursued matters to trial when necessary.
