Common Law Disclosure Policy

This policy explains WorkCover’s expected and adopted approach to the disclosure obligations required of all parties to a common law claim detailed under section 279 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act).

As a model litigant, WorkCover has an obligation to ensure appropriate disclosure occurs in a timely manner by all parties throughout the management of a claim. Appropriate and timely disclosure facilitates the objective of the pre-proceedings process, that being, the just and expeditious resolution of the real issues of a claim, with the minimum of expense and duration for all parties. Appropriate and timely disclosure by all parties helps identify and resolve the real issues, so the parties can investigate and assess the prospects of the claim and prepare for early resolution.

When and what must be disclosed?

Disclosure must occur within 21 business days of the service of Notice of Claim for Damages or receipt of request. This disclosure obligation continues throughout the pre-proceedings and litigation process.

Section 279(1) of the Act requires that the parties must exchange all documents relating to:

• The circumstances of the event resulting in the injury
• The claimant's injury and
• The claimant's prospects of rehabilitation.

Examples of these documents include:

The Event

• Any statements made by the claimant, employer, contributor(s) or other witness(es) which have been documented and have regard to the circumstances of the accident and the claimant's injury including any written or formal statements, files notes, memoranda or other document, whether signed or unsigned, having the hallmark of a statement which has been adopted by the witness and any updates to those
• Any applications for compensation made by the claimant and the associated claim files relating to the event
• Letters of instruction and/or questions to factual investigators and liability experts
• Documents from the employer relevant to the event including incident reports, maintenance records, logbooks, investigative reports, training records, applicable policies and procedures.

The Injury including financial loss from injury

• Medical and hospital records, reports, and relevant information about the claimant's injury
• Previous claim files relating to personal injuries, illnesses and impairments of a medical, psychiatric or psychological nature sustained by the claimant from, before or after the event (whether related to the event or not) that may affect the assessment of permanent impairment and amount of damages
• Wage details of the claimant or a comparative employee
• Letters of instruction and/or questions to doctors and allied health providers (including treating and independent practitioners)
• Centrelink and Medicare Australia documents.

Rehabilitation

• Rehabilitation reports
• Common Law Return to Work communications.

What is not required to be disclosed?

Parties are not required to disclose documents that are protected by legal professional privilege. Such documents usually include communication between a client or the client's agent and their professional legal advisors for the dominant purpose of obtaining or providing legal advice or in anticipation of litigation.

However, section 284(2) of the Act outlines that even if legal professional privilege applies, investigative reports, medical reports and reports relevant to the claimant's rehabilitation and relevant documents under s 279, other than correspondence between a party and a party's lawyer, must be disclosed.

In the situation where WorkCover or a contributor has reasonable grounds to suspect a claimant of fraud, information or documents which would alert the claimant to the suspicion of fraud or could help further the fraud will not be disclosed. However, once there are no longer grounds for a suspicion of fraud, relevant documents must be disclosed (including any surveillance). The conclusion that there is clear evidence to reject a suspicion of fraud will be made on a case-by-case basis but should coincide with a clear determination not to prosecute a claimant for fraud.

Surveillance should be disclosed in the instance it confirms the extent of the claimant's claimed incapacity and there is no continuing suspicion of fraud. Surveillance which does not contain footage of the claimant will be considered irrelevant and hence does not need to be disclosed.