Guide to Common Law Damages Claims for Personal Injury
If you have been injured in an accident that was either wholly or partly not your fault, you could have the legal right to make a common law claim for compensation. The Queensland legal system provides remedies for those who have suffered harm or loss due to the negligence of others or a wrongful act.
Free Initial Consultation for Common Law Legal Advice
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 are 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.
• Approved compensation aims 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 payment.
• This amount of non-economic and economic loss damages is either agreed upon through mediation or decided by a court.
• A settlement indicates that legal proceedings have concluded with no further action.
However, the process of successfully making a claim is complex and challenging. Our comprehensive guide to common law damages explains the legal process and steps to an approved payout.
How long does it take to settle a common law damages claim?
Common law claims can take between 12 months and 3 years to resolve, depending on the complexity of the case and the evidence required for a resolution. Typically, catastrophic and severe injuries take longer, as insurers are more likely to strenuously defend larger lump-sum compensation payments.
Common Law Workers’ Compensation Claim
The workers’ compensation scheme allows you to sue your employer when their negligence causes workplace injuries. Consequently, an injured worker could make a work-related common-law claim for compensatory damages and receive a lump-sum payment for permanent impairment.
In addition, a worker can also claim workers’ compensation (a statutory claim) and receive weekly payments (statutory benefits) under the no-fault Queensland WorkCover scheme.
More about workers’ compensation claims
Permanent Impairment
Nearing the end of a workers’ compensation claim, you may also be eligible for a lump sum whole person impairment benefit for serious injuries. A medical practitioner must assess your injuries as stable before assessing damages. This medical information would then be shared with your lawyer.
• You may need to make a serious injury application, depending on your state’s workers’ compensation scheme.
• Some states of Australia require an application through a County Court
Motor Car Accident Common Law Claim
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 a claim to receive a common law damages payout, including:
- Someone was to blame for your loss.
- The other party failed their statutory duty.
- Alternatively, there may have been a breach of another form of relationship (e.g. an employment contract).
More about road accident claims
Free Online Claim Assessment
Defining Common Law Claims
What is the common law duty of care?
A common law duty of care relies on the basic 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 personal injury 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. Negligence and a breach of duty must be shown to establish their claim. Once this has been established, you must prove the accident caused a new physical or mental illness or exacerbated an existing one. Fulfilling these legal obligations can result in an approved common law negligence damages claim.
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 and 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 contributory negligence?
The payout of a claim for damages can be reduced when the claimant is assigned a level of contributory negligence.
• This legal defence argues that they failed to take reasonable care for their own safety and hence 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 reducing the level of contribution, 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.
Case law—how much other people have received in the past—often determines the extent of their compensation entitlement. 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 personal injury 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 common law lump sum payout.
How long does a common law claim take?
So, how long will it take to receive a common law settlement? Typically, these matters settle between one year and three years. 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.
Splatt Lawyers can provide free initial legal advice regarding claims for common law damages. Our free review covers claim eligibility, legal costs, the estimated settlement value, and the approximate time to achieve appropriate compensation. Call 1800 700 125
Strict Time Limits for a Common Law Claim
The strict time limits that apply to a common law claim depend on the type of accident suffered. In general, the injured person must lodge a common law claim within 3 years from the date of the incident to preserve their rights. Queensland legislation outlining claim time constraints includes:
- Personal Injuries Proceedings Act 2002
- Workers’ Compensation and Rehabilitation Act 2003
- Motor Accident Insurance Act 1994
You generally can’t seek compensation if you miss your claim 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
- Gather evidence: Collect evidence to prove negligence, including medical reports, witness statements, police reports, photographs and videos of the incident scene.
- Legal advice: You have the right to seek legal advice from a personal injury compensation lawyer.
- Lodge a damages claim: Next, lodge a claim with the defendant’s insurance company. They have an opportunity to respond to your demand.
- Respond to their defence: The insurer will settle immediately if they don’t defend your claim (unlikely). Otherwise, the claim is mediated.
- Negotiate with insurers: Most compensation claims are settled by mediation with the liable insurance company.
- Court action: Court proceedings may occur when the insurer disagrees with a settlement.
- Receive a lump-sum payment: The final step is payment of a lump-sum compensation amount.
More about the personal injury claim process
How Much is a Common Law Settlement?
A claim for common law damages can include both future and past economic losses, including lost earning capacity. Both negotiating parties consider “head of damages” when calculating payout values, including:
• Pain and suffering compensation
• Lost enjoyment of life
• Past and future lost wages
• Medical expenses and rehab costs
• Out-of-pocket and travel expenses
These components make up the total damages.
- The injury type and its impact on your life: In general, severe injuries result in higher compensation, for example, if physical and psychological damages are present. However, the effect on your life will differ based on your occupation and injury type.
- The degree of fault also influences the settlement value. If you have contributory negligence, your damages will be reduced accordingly.
- 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: Compensation payouts include damages for pain and suffering (loss of quality of life), including emotional and physical losses.
- Gratuitous Services: Sometimes, damages can be awarded for gratuitous services, like in-home care provided by family and friends.
Free Compensation Assessment
Common Types of Common Law Accidents
- Work-related accidents where the injuries have a permanent impairment assessment rating of over 20%.
- Motor vehicle accident where you are not the at-fault driver. 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.
Common Law Compensation for a Personal Injury
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 lets the defendant respond and notify their insurance company 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.
Examples of Common Law Claims
1. Compensation for Workplace Negligence
In addition to a statutory claim, an injured worker can make a common law damages claim for their employer’s negligence. You must prove that your employer failed to fulfil their duty of care to succeed. Claims for employer negligence include:
• Failing to provide adequate employee training.
• Failure to create a safe working environment
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 expenses 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 a negligence claim, the plaintiff must show the following:
- The defendant had a duty of care towards them.
- The defendant breached this duty by causing a motor vehicle accident
- The breach caused them some injury or damage.
3. Product Liability Claim
Product liability claims involve being injured by a defective or faulty product, and your compensation amount could 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.
It's Free to Start
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.
In fact, common law claims are legal proceedings to recover damages for a financial loss caused by another person’s negligent action or failure to act.
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.
In this situation, the injured person must prove the defendant’s negligence and that they suffered an economic loss. A litigation lawyer can prepare particulars of damage, outlining the claimable amount and its basis.
Statutory Claims versus a Common Law Claim for Damages
In Queensland, a statutory claim sometimes occurs before a common law claim, depending on the type of legal case. The laws surrounding statutory claims and common law claims are complex and differ by jurisdiction. However, both types of claims help injured people seek compensation for financial loss.
Common law requires proving fault and negligence, whereas statutory claims provide a pre-defined system for compensation without needing to assign blame.
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: 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 common law 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. Consequently, 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