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.
What is a Common Law Damages Payout?
In Queensland, a common law claim payout is damages compensation for injuries sustained by another person or party’s full or partial negligence. Common law compensation aims to restore the injured party’s financial state to where it was before the injury.
Consequently, the nature and degree of the damage and the circumstances of the incident determine the settlement value, which is either agreed upon through mediation or adjudicated by a court. Settlement of such a claim means no further action can be taken.
However, the process of a successful common law claim is complex and challenging. You may choose to seek legal advice from an experienced personal injury lawyer to learn about legal proceedings and your rights. Our comprehensive guide to common law claims explains the legal process and steps to an approved claim.
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 settlement. Typically, catastrophic and severe injuries take longer, as insurers defend larger lump sum compensation payments more strongly.
Common Law Workers Compensation Claim
The workers’ compensation scheme allows you to sue your employer when their negligence causes workplace injuries. Consequently, when your job causes a severe illness or injury, you could make a work-related common-law claim for compensatory damages and receive a lump-sum payment for permanent impairment.
In addition, an injured worker can also claim workers’ compensation (a statutory claim) and receive weekly payments (statutory benefits) under the no-fault Queensland WorkCover scheme.
Once you have a successful workers’ compensation claim, you may also be eligible for a lump sum impairment benefit for serious injuries. (You may need to make a serious injury application, depending on your state’s workers compensation scheme)
How to make a workers’ compensation claim >
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 can seek compensation by making a car accident common law claim. You must present evidence to prove your claim for a successful common law damages payout.
- Someone was to blame for their 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 >
This article provides an overview of the process for claiming common law damages, the requirements for receiving financial compensation, and potential common law payouts.
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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. Common law claims are personal injury claims 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. These claims may arise when someone fails to take reasonable steps to protect another person from foreseeable harm.
What is a common law claim for 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 win 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?
Negligence under common law is when someone fails to take reasonable steps to protect another person from foreseeable harm.
What is compensation under common law?
Common law compensation offers financial support for those who have unjustly suffered harm due to another’s negligence. These funds help to restore the injured person’s life to what it would have been had the incident 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 explain common law precedents and barriers to a successful outcome.
Who funds common law payouts?
In most cases, a personal injury lawyer (who provides legal representation) 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?
We often hear a question at Splatt Lawyers: How long will it take to get a common law settlement? Typically, these matters settle between one year and three years. The factors that impact the length of time include:
- Your type of injury or illness, e.g. physical, psychiatric, or both.
- How your injury happened – at work, on the road, in a public space
- How long it takes for your damage 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 your claim (usually with more significant claims)
- If your 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 provides legal advice regarding claims for common law damages. It’s free to know if you have a valid case, the legal costs, your payout value and the approximate time to achieve appropriate compensation. Call: 1800 700 125
What is the Time Limit for a QLD Common Law Claim?
The time limit for a QLD common law claim depends on the type of accident suffered. In general, the injured person must lodge a common law claim within three 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 can’t seek compensation if you miss your claim lodgement deadline. A Splatt compensation lawyer can advise you on your legal rights and time limits for free. Call 1800 700 125
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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.
- Seek legal advice: Seeking advice from a personal injury compensation lawyer helps you understand your rights and barriers to a successful outcome.
- Lodge a damages claim: The liable party will receive a letter from your lawyer and notify 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: Your lawyer will negotiate with the insurance companies or other parties involved in the incident to reach a compensation agreement.
- Court action: Court proceedings may occur when the insurer disagrees with a settlement.
- Receive a lump-sum payment: Finally, you receive a lump-sum compensation payment.
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How Much is a QLD Common Law Compensation Payout?
“Heads of damages” are considered when calculating the value of common law claim payouts. These components of a compensation claim comprise total damages.
- Your 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 can differ based on your occupation and injury type.
- The degree of fault also impacts settlement value. If you contributed to the incident, 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 income.
- Medical Expenses: Reasonable future and past medical costs, including rehab, physiotherapy, and specialist medical care.
- Pain and Suffering: Queensland common law compensation payouts include pain and suffering damages (lost quality of life), including emotional and physical loss.
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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 would be entitled to workers’ compensation benefits and a common law damages claim, which would award you 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 have a successful product liability claim, you must prove that the manufacturer or supplier of the product was negligent in its design, manufacture or marketing process.
4. Psychological Injury Claim
If someone else has caused you psychological distress due to their negligence, you may be entitled to claim common law damages.
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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. Damage claims are compensation claims that seek to provide restitution for a financial loss caused by another person’s negligent action or failure to act.
How are common law damages awarded?
If your claim proceeds to court and there is a trial, the court decides if you have a winning case and awards common law damages. The court considers 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 a loss. Your injury litigation lawyer would prepare particulars of damage, outlining the amount you claim and its basis. This would not be the amount you are awarded but your best-case scenario.
What evidence is relevant to proving employer negligence?
Proving employer negligence involves evidence. This vital proof might be your evidence, workplace injury reports, and witness statements. Your documentary evidence will include investigation & incident reports and workplace information before your injury.
Statutory Claims versus Common Law Damages Claims
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 a financial loss.
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. 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 deliver a more comprehensive settlement package covering both future and past economic losses and non-economic losses. Consequently, a lump sum compensation payment considers more factors than a statutory claim.
Legal Advice From An Experienced Personal Injury Lawyer
If you decide to pursue common law damages, you have the right to seek independent legal advice. Experienced personal injury lawyers in Queensland regularly mediate common law payouts with large insurers, and they know the legal process and court system.
Australian insurers will typically try to minimise their liability and the value of common law claim payouts. Our Brisbane legal team assists clients in understanding their legal rights when impacted by others’ negligence.
Furthermore, Splatt Lawyers is a 100% no-win, no-fee law firm, which means you pay when you win and nothing if you lose. And it’s free to learn your right to claim compensation. Call 1800 700 125.