Guide to Common Law Claims for Damages

The Queensland legal system provides remedies for those who have suffered harm or loss due to the negligence of others. If this is your situation, you could make a common law claim for damages and receive a lump sum compensation payout.
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.

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. Your best course of action is to work with the guidance of an experienced personal injury lawyer. View our comprehensive guide to common law claims to learn how it works and how to win your case.

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Workers Compensation Common Law Claim

The workers’ compensation scheme allows you to sue your employer when their negligence causes you harm. When your job causes an illness or injury, you could make a work-related common-law claim for compensatory damages and receive a lump-sum payment.

In addition, an injured worker can claim workers’ compensation, which is paid as weekly benefits (statutory benefits) under the no-fault Queensland WorkCover scheme. They may also be eligible for a lump sum impairment benefit for serious injuries.

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 could have 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 success, 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 should result in a successful 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 provides financial support to those who have been wrongfully harmed by another’s negligence, helping 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.

Who funds my lump sum payout?

In most cases, a personal injury lawyer (who provides legal representation ) will sue the liable party’s insurance company. The insurer pays the agreed-upon common law lump sum payout.

How long for a common law settlement?

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, and so is its settlement period. Splatt Lawyers has been winning compensation damages for nearly three decades. It’s free to know if you have a case, your claim value and the approximate time to achieve an outcome. 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, your best action is to seek qualified legal advice from a skilled common-law litigation lawyer as soon as possible.

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Four Elements of A Winning Common Law Claim

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 particularly egregious or malicious.

How to Make a Common Law Claim

You start a common law claim by seeking informed legal advice from an experienced compensation lawyer. Our friendly personal injury team provides a free case assessment. It costs nothing to know where you stand and your legal rights.

We will help you gather the evidence necessary to create a compelling case, including medical records, expert reports, witness statements, CCTV footage, and police reports.

Steps to Making A Successful Claim

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.

Seek legal advice

Seek legal advice from an expert personal injury compensation lawyer to understand your rights and the steps to successfully access your entitlements.

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).

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.

Respond to their defence

If they don’t defend your claim (unlikely), you will settle immediately. 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 doesn’t agree on a settlement. Splatt Lawyers has an out-of-court settlement rate of 99%.

Receive your damages payout

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 your injuries’ impact 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

Your level of injury helps determine your loss level. Severe injuries will result in higher compensation, for example, if physical and psychological damages are present. However, the impact 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. Your level of fault

The degree of fault also affects the amount of 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

Your life expectancy and age 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: Past and Future

When you take time away from your job because of your injuries, you can be entitled to lost wages, including future income.

5. Lost Superannuation: Past and Future

Being off work can also stop your superannuation payments. You might also be compensated for lost super.

6. Medical Expenses: Past and Future

When you have a successful common law claim, your future and past medical costs, including rehab, physiotherapy, and specialist medical care, can also be compensated.

7. Your Pain and Suffering

Queensland common law compensation payouts include pain and suffering (lost quality of life), including emotional and physical loss.

What is my claim worth?

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 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 when an unsafe or defective product has harmed you.
  • Transport accidents you could have a transport accident injury using a bus, train, cruise ship, ferry, aeroplane or others.
  • 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, your personal injury lawyer will lodge legal proceedings with the District Court of Queensland.

You do not need to worry about legal costs, as Splatt Lawyers are 100% No Win, No Fee lawyers, which means there is nothing to pay until we win your case.

What are the Common Types of Common Law Claims?

1. Compensation for Workplace Negligence

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

If successful, 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. Claiming 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.
  3. The breach caused them some injury or damage.

Thankfully, you can 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 when requesting compensation under common law 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.

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.

Splatt Lawyers settles 99% of common law claims without court proceedings, saving you unwanted stress and additional legal expenses. Court action can have unpredictable outcomes that

leave you with nothing or a legal bill larger than your payout value.

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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How An Experienced Personal Injury Lawyer Helps

You must have qualified legal representation when making personal injury claims for damages in Queensland. Rely on our experienced personal injury lawyers to guide you through the challenging legal process and source compelling evidence of negligence for any wrongful act that harmed you. They are experienced in dealing with payouts for common law claims and can offer helpful information about the court process.

Common law payouts are significant, and insurers will try to minimise their liability and your potential payout. Our Brisbane legal team has extensive knowledge of the process and has aided many Queenslanders in accessing appropriate compensation based on their situation.

You can relax knowing that Splatt Lawyers is a 100% No Win, No fee law firm, which means you have no financial risk when you claim compensation. Starting your case is free; you pay our fees when we win and nothing if you lose – Call Now 1800 700 125.

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