Statutory vs Common Law Workers’ Comp: Key Differences

Workers’ comp in Australia. On the surface, it sounds simple: get hurt at work, there’s a system to support you. But then you hear people throwing around terms like “statutory claim” and “common law claim,” and suddenly the whole thing feels like alphabet soup.

So… what’s the actual difference? And more importantly, what does it mean for someone who’s been injured on the job?

Let’s break it down in plain English.

Two Paths, Same Starting Point

Here’s the thing: if you’re injured at work, you don’t really get to choose at the very beginning whether you’re going statutory or common law. Everyone starts with the statutory scheme.

That’s the no-fault safety net. You don’t need to prove your boss did anything wrong. If you’ve been hurt, you can usually get help with medical treatment, weekly payments while you’re off work, and sometimes lump sums for permanent impairment.

It’s kind of like Medicare for workplace injuries – basic cover, kicks in quickly, and it’s there regardless of blame.

But then there’s the second path…

Common Law – When Fault Actually Matters

Now, if your injury is more serious, and – this is key – it was caused by negligence (like unsafe systems, dodgy equipment, or poor training), you might have the option of a common law claim.

This one’s not automatic. You have to prove the employer (or someone connected with your work) stuffed up and that mistake caused your injury.

The payoff? Potentially bigger compensation. We’re talking loss of future earnings, pain and suffering damages in some cases, and broader recognition of the impact on your life.

Downside? It takes longer, it’s harder fought, and not everyone qualifies.

So, Which One’s Better?

Trick question. They serve different purposes.

Statutory claims – quick, straightforward, less stressful, but capped. Think of it as the safety net that keeps you afloat.
Common law claims – more complex, higher stakes, potentially life-changing payouts, but you need solid evidence and a decent injury threshold.

A lot of injured workers actually end up with both. Statutory benefits help in the short term, and if the case stacks up, a common law claim runs alongside it.

Real-World Example

Picture this: a warehouse worker slips on a wet floor, busts their knee, and needs surgery.

Statutory path: weekly wages while they recover, physio covered, and maybe a lump sum if the knee’s permanently weakened.
Common law path: if it turns out management knew the floor was always wet and ignored complaints, the worker might sue for lost future earnings because they can’t go back to heavy lifting long-term.

See the difference? Same injury, two different tracks depending on blame and severity.

Why This Gets Confusing

Honestly, part of the problem is language. “Statutory” sounds like legal mumbo-jumbo. It just means “set out in legislation.” Parliament wrote the rules, and insurers follow them.

“Common law” sounds old-fashioned (and it is). It’s judge-made law, centuries of case decisions stacked on top of each other. In workers’ comp, it’s still alive and well, but only for certain situations.

The Frustrating Bit – Time Limits and Thresholds

Here’s the kicker most people don’t know: you don’t have forever to decide. Strict time limits apply for common law claims, and you often need to show a minimum level of permanent impairment. Miss the deadline or fall short on the medical percentage? Game over.

That’s why sitting on your hands isn’t a good option.

Misconceptions People Always Have

“If I make a statutory claim, I can’t do common law.” Not true. One doesn’t cancel out the other.
“Common law is just a bonus, everyone gets it.” Nope. Only if negligence is proven.
“The insurer will tell me what I can claim.” Maybe… but don’t bank on it. Their interests don’t always line up with yours.

So What Does This Mean for You?

If you’ve had a work injury, the real question is: how serious is it, and was someone at fault? Because that’s what decides whether you stick with statutory or explore common law.

And here’s the other thing – these claims can change your life. We’re not just talking money for physio; we’re talking whether you can pay your mortgage if you can’t go back to your old job.

That’s why it’s worth getting proper advice before making decisions.

FAQs People Actually Ask

Do I have to choose straight away between statutory and common law? No. You start with statutory. Common law is something that might come later if the circumstances fit.

What happens if my injury isn’t “serious enough”? You’ll still likely get statutory benefits. But common law won’t be on the table.

Can I change my mind once I’ve started a claim? You can pursue both at different stages, but once a common law settlement is finalised, that usually closes the door on further statutory entitlements.

Is common law worth the stress? Depends. For some, it’s the only way to get fair compensation. For others, statutory benefits do the job.

What if my boss says the injury’s my fault? That’s common. Fault arguments matter more in common law claims. In statutory, it’s mostly irrelevant.

Wrapping It Up

Statutory and common law claims aren’t competing rivals – they’re just different tools in the workers’ comp kit. One’s about support without blame, the other’s about accountability and bigger damages where negligence caused serious harm.

Getting your head around the difference can save you stress, money, and missed opportunities.

Need help working out which path applies to your situation? A good personal injury lawyer can walk you through it. Lifestyle Injury Lawyers are experienced in this area and can explain your options without the jargon.

Disclaimer: This article is general information only and not legal advice. Always seek professional advice about your own circumstances.

Statutory vs Common Law Workers’ Comp Claims: What’s the Real Difference?