Keith Mack
Common law damages refer to the payment made after a common law claim has been settled, either through negotiation or in court. A common law claim is a personal injury claim based on the principle of negligence, where the injured party must prove that they have suffered a loss due to the defendant's failure to exercise reasonable care. This can include physical injury, mental anguish, medical expenses, lost wages, or other economic losses. Common law damages can be sought in a variety of circumstances, such as workplace injuries, motor vehicle accidents, product accidents, and transport accidents. The amount of damages awarded is determined by the type and severity of the injury and may include compensation for pain and suffering, lost income, and medical expenses.
| Characteristics | Values |
|---|---|
| Basis | Common law duty of care relies on the principle that people should take reasonable care not to cause injury or damage to others. |
| Type of claims | Personal injury claims based on negligence. |
| Negligence | Refers to the failure to exercise reasonable care, resulting in injury to another person. |
| Loss | Physical injury, mental anguish, medical expenses, lost wages, or other economic losses. |
| Lump sum | Common law damages could be paid as a lump sum compensation. |
| Pain and suffering | Includes pain and suffering damages (lost quality of life), emotional and physical loss. |
| Work-related accidents | Injuries have a permanent impairment assessment rating of over 20%. |
| Motor vehicle accident | The injured party was not at fault. |
| Transport accident | The TAC will assess a claim for common law damages using the legislation that applies to the place where the accident occurred. |
| Serious injury | A serious long-term impairment or loss of a body function, long-term serious disfigurement, or severe long-term mental illness. |
| Statutory claim | A claim for financial compensation. |
| Common law claim | A claim for damages where someone was at fault for the injury. |
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What You'll Learn
Compensatory damages
In the context of personal injury claims, compensatory damages can cover medical expenses, lost wages, and other economic losses. They may also include future medical costs and loss of income if the injury results in long-term impairment or affects the plaintiff's ability to work. Calculating compensatory damages can be challenging, especially when considering factors like the plaintiff's socioeconomic status, the severity of the injury, and the potential for future losses.
The process of claiming compensatory damages typically involves gathering evidence, such as medical reports, witness statements, and other documentation to prove negligence or unlawful conduct. The plaintiff may seek legal advice and lodge a claim with the defendant's insurance company, which may be settled through mediation or by going to court.
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Nominal damages
Common law damages are monetary awards paid to claimants as compensation for loss or injury. The injured party must prove that they have suffered a loss due to the defendant's failure to uphold their duty of care. These losses may include physical injury, mental anguish, medical expenses, lost wages, or other economic losses.
One famous example of nominal damages awarded in modern times is the $1 verdict against the National Football League (NFL) in a 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled to $3 due to antitrust law, it was still regarded as a victory for the NFL.
In summary, nominal damages are small sums of money awarded by courts to acknowledge that a legal violation occurred, even if no significant or measurable harm was suffered by the plaintiff.
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Punitive damages
Common law damages are payments made after a common law claim, which is a personal injury claim based on the principle of negligence. In other words, common law claims assert that an individual or entity failed to take reasonable care, resulting in injury or damage to another person.
Now, punitive damages are a type of monetary compensation awarded in addition to compensatory damages. Compensatory damages are payments made to the injured party to cover their expenses, such as medical bills, lost wages, and property damage. On the other hand, punitive damages are designed to punish the defendant and deter similar misconduct in the future.
Before awarding punitive damages, the court must consider several factors, including whether the defendant's actions were malicious, intentional, or grossly negligent. Punitive damages are typically given in conjunction with other damages and are subject to a cap, often not exceeding four times the amount of compensatory damages.
In summary, punitive damages are additional monetary damages awarded to punish defendants for their grossly negligent or intentional conduct and to deter similar misconduct.
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Personal injury claims
In the context of personal injury, common law claims are usually related to work-related injuries, motor vehicle accidents, or injuries sustained in a public place. These claims are based on the principle of negligence, which holds people responsible for failing to exercise reasonable care, resulting in injury to another person. For example, in Queensland, common law compensation payouts include pain and suffering damages, lost income, and future medical costs.
To make a common law damages claim for personal injury, it must be proven that someone was at fault for the injury. This can be difficult to establish, and it is recommended to seek legal advice from a personal injury lawyer. Evidence such as medical reports, witness statements, police reports, and photographs or videos of the incident scene can be used to prove negligence.
In some jurisdictions, such as New Zealand, there are unique considerations for personal injury claims. New Zealand's accident compensation legislation bars most forms of personal injury litigation, providing a system of state compensation for people who suffer personal injuries by accident, regardless of fault.
Personal injury laws and requirements for compensation claims and damages can be complex and differ between states and territories. It is important to be aware of time limits and other requirements for statutory claims and common law claims to ensure access to the compensation and damages one is entitled to.
Recipients of large personal injury damage awards may opt for a structured settlement, which disburses the award on a monthly or annual basis. This can provide benefits such as reduced taxes and an increased likelihood of recovery from the defendant.
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Contract and tort law
Common law damages refer to the payment made after a common law claim. This can be reached through negotiation or by going to court. These claims are personal injury claims based on negligence, where the injured party must prove they have suffered a loss due to the defendant's duty failure. This could include physical injury, mental anguish, medical expenses, lost wages, or other economic losses.
Contract law and tort law are two distinct branches of civil law. Contract law deals with the drafting and enforcement of agreements between parties, while tort law addresses how individuals who haven't entered into an agreement must treat each other. Contract law is concerned with the formation and performance of valid, enforceable contracts, and the remedies available when these contracts are breached. On the other hand, tort law deals with the duty of care imposed by law and the consequences of breaching that duty, which can result in personal injury or property damage.
A key difference between the two is that contract law protects only the parties to the contract, whereas tort law protects the general public. Another distinction is that contract law focuses on economic loss, whereas tort law can include personal injury. Damages in contract law are typically compensatory, aiming to place the injured party in the position they were in before the breach. In contrast, tort law can also serve to punish the party responsible for the injury.
Tort claims often involve unknown parties, whereas contracts involve known individuals. Tort claims are highly circumstantial and can be based on either an act or a failure to act. For example, a business owner owes a duty of care to their customers, and if a customer slips and falls due to their negligence, they can file a tort claim. In some cases, both a tort claim and a breach of contract claim may be made in the same lawsuit, such as in cases of strict product liability.
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Frequently asked questions
Common law damages are payments made after a common law claim has been settled, either through negotiation or in court.
Common law claims are personal injury claims based on the principle of negligence. The injured party must prove that the defendant failed to uphold their duty of care, resulting in their injury.
Common law damages can cover lost income, medical expenses, pain and suffering, and other economic losses.
To make a claim for common law damages, you must first gather evidence to prove negligence, such as medical reports, witness statements, and police reports. You then lodge a claim with the defendant's insurance company and negotiate a settlement or take the case to court.
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