A common law claim for damages was based on an employer's duty to take reasonable care for the safety of employees in all the circumstances of their employment, and to comply with Work Health and Safety laws. In the past an employee injured at work was sometimes able to recover damages from her or his employer. The damages were usually larger than the amount paid as Workers Compensation, but they could only be recovered when there was proof of negligence, i.e. fault on the part of the employer, or breach of safety laws. Common law claims for damages against a worker’s employer were effectively abolished in 1994.

From 1 July 2015 common law claims for damages against a direct employer have been reintroduced in limited circumstances. Only a ‘seriously injured‘ worker may apply for common law [Return to Work Act 2015 (SA) s 72]. If damages are recovered no further compensation is generally payable and compensation already paid is repayable [s 75]. As the interaction of common law claims with workers compensation rights is complex, detailed legal advice should be sought [Return to Work Act 2014 (SA) Part 5].

If the worker's injury is caused by the negligence of someone other than the employer such as a contractor, treatment provider or employees of a different employer, there is no limit to the damages that may be claimed unless it is caused by a motor vehicle accident, see Motor vehicle accidents. The situation in this area is likely to be very complex and detailed legal advice should be sought.