Legal Advice for Compensation Insurance Claims & TPD Payouts

Guide to Common Law Claims QLD: How to Claim Damages Compensation

In Queensland, you can make a common law claim for damages and receive a lump sum compensation payout when you have suffered harm or loss due to the negligence of others. In this situation, a personal injury lawyer can explain your rights.
Making a common law claim
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Guide to Making a Common Law Damages Claim for Compensation

If you have been injured in an accident that was either wholly or partly not your fault, you could make a common law claim for compensation. If this is your circumstance, the 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?

A common law claim payout is damages compensation awarded to someone who has suffered a personal injury due to another person or party’s full or partial negligence. The nature and degree of the damage and the incident’s circumstances determine the compensation level, which is either agreed upon through mediation or adjudicated by a court.

The process of winning a common law claim is complex and challenging. Many people in this situation seek legal advice from an experienced personal injury lawyer to understand their rights.

You can also view our comprehensive guide to common law claims to learn how it works and how to have an approved claim.

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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.

  1. Someone was to blame for their loss.
  2. The other party failed their statutory duty.
  3. Alternatively, there may have been a breach of another form of relationship (e.g. an employment contract).

This article provides an overview of the process for claiming common law damages, the requirements for receiving financial compensation, and potential common law payouts.

More about road accident claims >

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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:

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 understand how to use common law precedents to deliver the outcome you are seeking.

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Who funds my lump sum payment?

In most cases, a personal injury lawyer (who provides legal representation) will sue 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:

  1. Your type of injury or illness, e.g. physical, psychiatric, or both.
  2. How your injury happened – at work, on the road, in a public space
  3. How long it takes for your damage to stabilise (average is 6 to 12 months)
  4. The number of liable parties
  5. If the at-fault party disputes liability
  6. How strongly the insurer defends your claim (usually with more significant claims)
  7. 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 Now: 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. Generally, you must lodge your claim within three years from the date of the incident. Personal injuries can take a long time to become apparent and develop over time.

Queensland legislation outlining claim time constraints includes:

It would help if you met your deadline to make a claim. To protect your rights, please seek qualified legal advice from a common-law litigation lawyer as soon as possible.

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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

The at-fault party must owe the injured party a duty of care, which means they must act reasonably to prevent harm.

Breach of duty

The defendant must have breached their legal duty by failing to act reasonably under the circumstances. This can be shown through an action or failure to perform.

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. The plaintiff may also be entitled to punitive damages if the defendant’s actions were egregious or malicious. (In Australia, it is very rare to receive punitive damages)

How to Make a Common Law Claim

You start a common law claim by seeking informed legal advice from an experienced compensation lawyer. Splatt Lawyer’s personal injury team provides a free case assessment. Knowing where you stand and your legal right to justice costs nothing.

We provide advice regarding the legal process, such as gathering the evidence necessary to create a compelling case. Including medical records, expert reports, witness statements, CCTV footage, and police reports.

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8 Steps of the Common Law Claim Process

  1. Gather evidence: The first step is to gather evidence to establish liability and prove your injury, including medical reports, witness statements, police reports, photographs or videos of the incident, and other material related to the accident.
  2. Seek legal advice: Get advice from a personal injury compensation lawyer to understand your rights and the steps to access your entitlements successfully.
  3. Calculate damages: Your lawyer will calculate the amount of money you seek in damages for your loss, including economic losses such as medical expenses, lost income, pain and suffering (lost enjoyment of life).
  4. Lodge your 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.
  5. Respond to their defence: The insurer will settle immediately if they don’t defend your claim (unlikely). Otherwise, the claim is mediated.
  6. Negotiate with insurers: Your lawyer will negotiate with the insurance companies or other parties involved in the incident to reach a compensation agreement.
  7. Court action: Court proceedings may occur when the insurer disagrees with a settlement.
  8. Receive a lump-sum payment: You will receive a lump-sum compensation payment when the above steps are completed.

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How Much is a QLD Common Law Damages Payout?

The compensation you receive in a common law payout depends on the impact of your injuries on your life and the extent of your loss. “Heads of damages” are considered when determining the value of your claim. These components of a compensation claim comprise your total damages.

  1. 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. For example, a broken leg will likely impact your ability to work more if you are a builder’s labourer than an office worker.
  2. The degree of fault also affects the compensation you receive. If you contributed to the incident, your damages will be reduced accordingly. Of course, your lawyer will seek to reduce your level of contributory negligence if this applies to your case.
  3. Your age and life expectancy will be considered when determining legal damages in Queensland. The younger you are, the more working years you have left (more significant loss) and, hence, more time to experience the impacts of your injury.
  4. Lost Income and super: If your injuries cause you to miss work, you may be eligible for lost wages and superannuation, including future income.
  5. Medical Expenses: Compensation is also available for future and past medical costs, including rehab, physiotherapy, and specialist medical care.
  6. Your 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.
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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.

Splatt Lawyers is a 100% No Win, No Fee law firm, meaning there is nothing to pay until you win.

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 make a workers’ compensation claim 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:

  1. The defendant had a duty of care towards them.
  2. The defendant breached this duty by causing a motor vehicle accident
  3. The breach caused them some injury or damage.

Thankfully, you could still receive a common law payout even if you were to blame for your accident (had contributory negligence).

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 win a claim for product liability, you must prove that the manufacturer or supplier of the product was negligent in its design, manufacture or marketing process.

4. Psychological Injury Claim

Psychological injuries can be just as devastating as physical injuries. If someone else has caused you psychological distress, you may be entitled to claim common law damages. Your mental illness compensation payout would rely on the following:

  1. Your type of psychological condition
  2. Its severity
  3. How likely are you to recover

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More About Damage Claim Payouts

What is the definition of a damage claim?

Common law claims and damage claims are different names for the same legal action. You must have legal representation for compensation claims because this type of case involves court proceedings.

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 and 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.

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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. Fortunately, experienced personal injury lawyers in Queensland know common law and can advise on the claims process. They regularly mediate common law payouts with large insurers and know the court system.

Common law payouts can be significant, and insurers will typically try to minimise their liability and your potential payout. Our Brisbane legal team understands the common law claim process and assists clients in knowing their legal rights when impacted by the negligence of others.

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 Now 1800 700 125.

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