Guide to Common Law Lump Sum Payments for Personal Injury
If you were injured in an accident that was wholly or partly not your fault, you may have the right to make a common law claim (also known as a personal injury claim) and receive a lump sum payment.
The Queensland legal system provides remedies for people who have suffered harm or loss because of others’ negligence. This type of legal action interacts with the following legislation.
- Civil Liability Act 2003 (Qld)
- Limitation of Actions Act 1974 (Qld)
- Personal Injuries Proceedings Act 2002 (Qld)
- Law Reform Act 1995 (Qld)
The process of a successful common law claim is complex and challenging.
Our comprehensive guide to legal actions for damages explains:
- The definition of common law claims
- How they arise in everyday places
- The types of compensation available
- The strict time limits to make a claim
- What you must prove for a successful claim
- The claims process for an approved payout
Free Initial Consultation for Common Law Damages
Splatt Lawyers offers a free initial consultation for common law legal advice across Queensland. Our qualified solicitors and lawyers can explain your legal rights and eligibility to seek common law damages for a negligence-related loss, even if you contributed to the injury or illness.
All our legal services are funded on a 100% no-win, no-fee basis. Pay for a win and zero if you lose. It’s free to know where you stand. Call 1800 700 125
What is a Legal Action for Common Law Damages?
In Australia, a common law damages claim seeks compensation (money) for injuries sustained by another person or party’s full or partial negligence.
- An approved claim for damages seeks to restore the injured party’s financial state to where it was before the injury occurred.
- The nature and degree of the damage, as well as the circumstances of the incident, help determine the value of a lump sum payout.
- The amount of non-economic and economic loss damages is either agreed upon through mediation (compulsory conference) or decided by a court.
- A final settlement indicates that legal proceedings have ended with no further action.
What are common law damages?
Common law damages are further compensation beyond any statutory benefits you may receive for a personal injury. They can cover both past and future losses, both economic and non-economic.
Category | What it Covers |
|---|---|
Non-economic loss (general damages) | Pain and suffering, including emotional suffering and loss of enjoyment of life |
Economic loss damages | Measurable financial losses arising from the injury |
Past and future income and super | Lost earnings and superannuation, both past and expected in the future |
Medical and rehabilitation expenses | Costs of treatment, recovery, and rehabilitation services |
Care and assistance | Expenses for help provided because of the injury |
Out-of-pocket expenses | Other direct costs, such as treatment-related travel expenses |
How long does it take to settle a common law damages claim?
Common law claims can take 12 months to 3 years to resolve, depending on the case’s complexity and the evidence required to resolve it.
Typically, catastrophic and severe injuries take longer, as insurers are more likely to strenuously defend larger lump-sum payouts.
The factors that impact the length of time include:
- The type of injury or illness, e.g. physical, psychiatric, or both.
- How the injury happened – at work, on the road, or in a public space
- How long it takes for an injury or illness to stabilise (average is 6 to 12 months)
- The number of liable parties
- If the at-fault party disputes liability
- How strongly the insurer defends the claim (usually with more significant claims)
- If a case proceeds to court (which is rare)
Every common law claim is unique (particularly for a serious injury), and so is its settlement period.
Can I Make a Common Law Claim?
If you have been injured due to someone else’s negligence or wrongful act, you may be entitled to make a common law claim for damages. This type of legal action allows you to seek compensation for losses that go beyond statutory benefits because they consider both economic and non-economic damages.
Common law claims cover various situations, including workplace injuries, motor vehicle accidents, public liability incidents, and medical negligence.
Legal advice is strongly recommended early in the process to:
- Explain your eligibility
- Get an understanding of the claim process
- To ensure you lodge correctly and on time
Common Law Injury Application for Workers' Compensation
The Queensland workers’ compensation scheme allows workers injured in the course of their employment to sue their employer for negligence. Consequently, an injured worker could make a work-related common-law claim for compensatory damages and receive a lump-sum payment for permanent impairment.
To make a work injury damages claim, an injured worker must provide evidence of employer negligence.
- WorkCover Queensland is the default insurer for most Queensland employers. They are liable to pay workers’ compensation benefits for an approved statutory claim.
- The injured worker receives weekly payments (also known as statutory benefits) under the no-fault Queensland WorkCover scheme.
Permanent Impairment Payouts
If you are an injured worker who is close to the end of a workers’ compensation claim you may also be eligible for a lump sum whole person impairment benefit for serious injuries, including in some cases of psychological injury.
A medical practitioner must assess your injuries as stable (reaching maximum medical improvement) before assessing damages. Your lawyer will then receive this medical information.
The worker’s whole person impairment rating determines how much they are offered for a permanent impairment payout.
- Depending on your state’s workers’ compensation scheme, you may need to make a serious injury application.
- Some Australian states require an application through a County Court before you can seek work injury damages.
- This guide covers Queensland, and the rules differ in New South Wales and other parts of Australia.
Car Accident Common Law Claim for Damages
When you are the not-at-fault driver in a motor accident on Queensland roads and suffer an injury, you may be eligible for compensation by making a car accident common law claim. You must present evidence to prove your case to receive a common law damages payout, including:
- Someone was to blame for your loss.
- The other party failed their statutory duty.
- Alternatively, you may have a breach of another type of relationship (e.g., an employment contract).
About Common Law Claims
What is negligence in common law?
- Personal injury claims are based on the principle of negligence.
- Negligence is a legal concept that holds people responsible for failing to exercise reasonable care, resulting in injury to another person.
- A case may arise when someone fails to take reasonable steps to protect another person from foreseeable harm.
What is a common law duty of care?
A common law duty of care is based on the principle that people should take reasonable care not to cause injury or damage to others. This principle applies in a wide range of circumstances, such as:
- Driving on Queensland roads
- Working at your regular job
- Using a public venue or space
- Shopping in a supermarket or store
- Walking on council footpaths
- Playing on a sporting field
- And many other circumstances
What is a common law claim for a personal injury?
Claiming damages under common law for a personal injury is the legal process of seeking compensation from another person, typically triggered by a single accident or a series of events (e.g., mental illness claims, work stress claims, workplace bullying or repetitive strain injuries)
- The injured party has the burden of proof to demonstrate that the other party had a legal obligation to take reasonable precautions for their safety.
- To establish a claim, you must show negligence and a breach of duty.
- Next, you must prove the accident caused a new physical or mental illness or exacerbated an existing one.
- Once you meet these legal obligations, you can bring an approved common law negligence damages claim.
What is contributory negligence?
A damages claim settlement can be reduced when the claimant is assigned a level of contributory negligence.
- This legal defence argues that the claimant failed to take reasonable care for their own safety and therefore contributed to the injury sustained.
- When upheld in legal proceedings, the compensation amount is reduced in proportion to the level of contributory negligence.
- An experienced litigation lawyer knows the steps to reduce the level of contributory negligence to deliver a stronger outcome.
What is compensation under common law?
Common law compensation provides financial support to individuals who have suffered harm due to another’s negligence. These funds help restore the injured person’s life to what it would have been if the incident had not occurred.
- For these types of claims, case law (how much others have received in the past) often determines the extent of the settlement.
- Experienced personal injury lawyers can explain common law precedents and how they apply to a case.
Who funds common law payouts?
In most cases, a compensation lawyer will pursue common law damages from the liable party’s insurance company. Once the parties reach a mediated settlement, the liable insurer pays the agreed lump sum payout.
Strict Time Limits for a Common Law Claim
Be aware of strict time limits when making a common law claim, which is generally three years from the date of injury.
- The three-year limit starts from the date of injury or the date you became aware of the injury.
- Missing these deadlines can bar your right to claim.
- Extensions to the three-year limit are extremely limited.
The time limits that apply to a common law claim depend on the type of accident suffered. Queensland legislation outlining the time constraints includes:
- Personal Injuries Proceedings Act 2002
- Workers’ Compensation and Rehabilitation Act 2003
- Motor Accident Insurance Act 1994
- Limitation of Actions Act 1974 (Qld)
NOTE: You generally can’t seek compensation if you miss your lodgement deadline.
A Splatt compensation lawyer can explain your time limits during a free case review. Call 1800 700 125
Four Elements of A Successful Common Law Settlement
These four elements of negligence must exist for a successful common law claim:
- Duty of care: A claimant must demonstrate that the defendant owed them a duty of care to succeed in a negligence claim.
- Breach of duty: To prove negligence, the injured party must show that the defendant breached their legal duty by failing to act reasonably under the circumstances.
- Causation: The plaintiff must prove that the breach of duty caused their injury or damage. This means they would not have suffered a loss except for the defendant’s negligence.
- Damage or loss: In a common law claim, the injured person must prove that they have suffered a loss due to the defendant’s duty failure. These losses may include physical injury, mental anguish, medical expenses, lost wages, or other economic losses.
7 Steps of the Common Law Claim Process
Making a common law claim for a public liability injury or another type of personal injury claim begins with a letter of demand to the negligent party. This communication allows the defendant to respond and notify their insurer of the legal action.
When the defendant can’t provide a valid defence, a personal injury lawyer can lodge legal proceedings with the District Court of Queensland. Here are the steps for a successful claim.
- Gather evidence: Collect evidence to prove negligence, including medical reports, witness statements, police reports, photographs and videos of the incident scene.
- Legal advice: You are entitled to seek legal advice from a personal injury compensation lawyer.
- Lodge a damages claim: To start the damages claim process, the claimant must submit a Notice of Claim for Damages form with the defendant’s insurance company. They can respond to your demand.
- Respond to their defence: The insurer will settle immediately if they don’t defend your claim (unlikely). Otherwise, there will be mediation proceedings.
- Negotiate with insurers: A compulsory settlement conference is part of the pre-court process before proceedings continue. That’s why most QLD compensation claims settle through mediation.
- Court action: A matter proceeds to court when a compulsory conference fails to reach a settlement (which is rare in Queensland)
- Receive a lump-sum payment: The final step is payment of a lump-sum amount.
How Much is a Common Law Settlement?
A claim for common law damages can include past and future economic losses, including lost earning capacity. Both negotiating parties consider the “head of damages” when calculating payout values, including:
- Pain and suffering compensation
- Lost enjoyment of life
- Past and future lost wages
- Medical and rehabilitation expenses
- Out-of-pocket and travel expenses
These components make up the total damages.
Component | How it Works |
|---|---|
The injury type and its impact on your life | In general, severe injuries result in higher payouts. However, the effect on your life will differ based on your occupation and injury type. |
The degree of fault | Who was to blame also influences the settlement value. Legal representation can help you understand your rights and manage the claim process, especially if contributory negligence may reduce your damages. |
Your age and life expectancy | The more working years you have left (the more significant the loss), the more time you have to experience the impacts of your injury. |
Lost income and super | You may be eligible for lost wages and superannuation, including future loss. |
Medical Expenses | Reasonable future and past medical costs, including rehab, physiotherapy, and specialist medical care. |
Pain and suffering damages | Compensation payouts include damages for pain and suffering (loss of quality of life), as well as emotional and physical losses. |
Gratuitous Services | Sometimes, damages can be awarded for gratuitous services, like in-home care provided by family and friends, but only in limited circumstances. |
Common Types of Common Law Accidents
- Work-related accidents where the injuries have a permanent impairment assessment rating of over 20%.
- Motor vehicle accidents where you are not at fault. Common law claims for car accidents arise from negligent driving, ignoring road rules, faulty vehicles and unsafe roads.
- Slip, trip and fall accidents in a wide range of personal accident circumstances
- Product accidents are when an unsafe or defective product has harmed you.
- Transport accidents: you could be injured in a transport accident while using a bus, train, cruise ship, ferry, aeroplane, or other means.
- Pedestrian accidents occur when someone or something causes you an injury while walking or jogging.
Examples of Common Law Claims
1. Compensation for workplace negligence
In addition to a statutory claim, an injured worker may be eligible to make a common law claim for damages against their employer. To succeed, they must prove that the worker’s employer failed to fulfil their duty of care. Claims for employer negligence include:
- Failing to provide a safe system of work
- Inadequate training or supervision, unsafe plant or equipment
- Failure to maintain a safe workplace
- Failure to provide proper warnings or protective equipment
- Requiring or allowing work practices that expose the worker to foreseeable risk
In this case, you could be entitled to workers’ compensation benefits and a common law damages claim, which would award compensation for:
- Economic loss like medical costs and lost income, including future economic loss
- Non-economic loss, such as pain and suffering
- Whole-person impairment
2. Common law damages for negligent driving
A motorist who causes an accident through negligent driving can be held liable under the common law tort of negligence. To prove negligence, the plaintiff must show the following:
- The defendant owed a duty of care to the plaintiff
- The defendant breached this duty by causing a motor vehicle accident
- The breach caused the plaintiff some injury or damage
3. Product claim liability
- Product liability claims arise when a defective or faulty product injures you
- Approved compensation amounts can include medical expenses, lost wages, pain and suffering
- To prove a product liability claim, you must show that the manufacturer or supplier of the product was negligent in its design, manufacture or marketing process
4. Psychiatric injury claim
- If someone else has caused you psychological distress due to their negligence, you may be entitled to claim common law damages.
- You must be diagnosed with a recognised mental illness caused by someone else to have the basis of a claim.
More About Common Law Payouts
What is the definition of a damage claim?
Common law claims and damage claims are different names for the same legal action.
How are common law damages awarded?
If a case proceeds to trial, the court decides if you have a valid case and awards common law damages. They consider witness testimony, expert assessments, and reports when assessing personal injury claims.
- The injured person must prove the defendant’s negligence and that they suffered an economic loss.
- A litigation lawyer would prepare a statement of damages, outlining the claimable amount and its basis.
What evidence do I need to prove employer negligence?
Evidence that can help prove employer negligence includes work injury reports, witness and medical evidence, including the following:
- Accident reports that show what happened, when, where, and who was involved.
- Photos or video of the hazard, equipment, location, injuries, or conditions.
- Witness statements
- Medical records that link the injury or condition to the workplace incident.
- Workplace complaints or emails showing the employer knew – or should have known – about the hazard.
- Training records showing missing, inadequate, or outdated training.
- Maintenance, inspection, and repair records showing faulty equipment or ignored defects.
- Policies and procedures showing either no safety system existed or the employer failed to follow its own rules.
- Risk assessments / safety audits showing known hazards.
- Rosters, timesheets, workload records if fatigue, understaffing, or overwork contributed.
- Pay records and employment records if you’re claiming lost income or pressure to work unsafely.
- Workers’ compensation documents if an injury claim was lodged.
- Expert reports in more serious cases, such as medical specialists, engineers, or workplace safety experts.
Statutory Claims versus a Common Law Claim for Damages
Common law requires proving fault and negligence, whereas statutory claims provide a pre-defined system for compensation without needing to assign blame.
In Queensland, a statutory claim may occur before a common law claim, depending on the type of case. The laws surrounding these legal actions are complex and differ by jurisdiction. However, both types of claims help injured people seek compensation for financial loss.
Some people qualify for both statutory and common law claims, and it is strongly recommended that you seek legal advice to understand your options.
What is Statutory Law?
Statutory law refers to any law detailed in legislation passed by parliament. Hence, specific legislation, such as the Queensland WorkCover scheme, determines statutory claims, which provide no-fault benefits to injured workers.
The process for statutory claims is designed to be more streamlined than common law claims, providing quicker access to financial support.
Under statutory law:
- You don’t need to prove who was at fault
- Approved claims receive benefits outlined in the legislation, including a lump sum payment
- Statutory claims generally deliver faster outcomes
- Compensation amounts are capped by legislation and, as a result, may not fully cover the total value of a financial loss.
Common Law Compensation
In contrast, judges determine common law within the court system, developing it over time on a case-by-case basis. To receive damages, the injured party must prove that another party’s negligence caused their injury with a related financial loss. This legal process:
- Can be complex and time-consuming
- Requires gathering substantial evidence, such as medical records, witness statements, and expert testimony, to prove negligence
However, common law compensation claims usually deliver a more comprehensive settlement package that covers both past and future economic and non-economic losses.
That’s because, a lump sum compensation payment considers more factors than a statutory claim.
Legal Advice from A Personal Injury Lawyer
You have the right to seek independent legal advice regarding common law damages and the court system. Our Brisbane legal team assists clients in understanding their legal rights when they are affected by others’ negligence.
Splatt Lawyers is a 100% no-win, no-fee law firm, which means you pay when you win and zero if you lose. It’s free to learn your options. Call 1800 700 125