Kara Sears
Common law damages refer to a monetary award paid to a claimant as compensation for loss or injury. In most cases, a personal injury lawyer will pursue common law damages from the liable party's insurance company. The liable insurer then pays the agreed lump sum payout. In the case of a workplace injury, the workers' compensation scheme allows an employee to sue their employer when their negligence causes workplace injuries. In Queensland, an injured worker can claim workers' compensation and receive weekly payments under the no-fault WorkCover scheme. In the case of a motor vehicle accident, if the injured party is not at fault, they may be eligible for lump-sum compensation under common law damages.
| Characteristics | Values |
|---|---|
| Who pays common law damages? | The liable party's insurance company |
| Who receives common law damages? | Claimant |
| What are common law damages? | Monetary award/compensation for loss, injury, or harm suffered by the claimant |
| What is the process of claiming common law damages? | Lodge a claim with the defendant's insurance company, respond to their defence, negotiate with insurers, and if necessary, take court action |
| What is the payout for common law damages? | Lump-sum payment/compensation, including past and future loss of earnings, reduced ability to earn, pain and suffering, loss of amenities of life, reduced life expectancy, disfigurement, and emotional distress |
| What is the time frame for common law damages claims? | Claim must be made within three years of the incident, claims typically settle between one and three years |
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What You'll Learn
Personal injury claims
Personal injury is a legal term for an injury to the body, mind, or emotions, as opposed to an injury to property. In common law jurisdictions, the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit has suffered harm to their body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and sometimes on the basis of strict liability.
The process of a successful common law claim is complex and challenging, and they can take between 12 months and 3 years to resolve, depending on the complexity of the case and the evidence required for settlement. Once the parties reach a mediated settlement, the liable insurer pays the agreed common law lump sum payout. The factors that impact the length of time include the type of injury or illness, how the injury happened, and how long it takes for an injury or illness to stabilize.
In the case of a motor accident, you may be eligible to make a common law damages claim and receive lump-sum compensation if you were not at fault and were seriously injured. A claim must be made within three years of the accident date. If you are making a claim after this period, you will need to provide a full and satisfactory explanation for the delay.
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Workers' compensation
However, in addition to a statutory claim, workers can also pursue a common law claim if they can prove that their employer was negligent. This means that the employer failed to fulfil their "duty of care", such as by not providing adequate training or creating an unsafe working environment. To succeed in a common law claim, the worker must provide substantial evidence, including medical records, witness statements, and expert testimony. The settlement value of a common law claim is determined by the nature and degree of the damage and the circumstances of the incident, and it can be resolved through mediation or adjudicated by a court.
In Queensland, for example, the WorkCover scheme provides no-fault benefits to injured workers, and they can also pursue a common law claim for damages if they can prove employer negligence. Similarly, in New South Wales, workers can make a work injury damages claim and receive a lump-sum payout if their injury was caused by employer negligence. This payout is a full and final settlement of all the worker's rights and entitlements under the Workers Compensation Act.
It is important to note that workers' compensation laws and schemes have evolved over time, and there are specific legislative provisions that need to be met to pursue a common law claim. For example, in some states, there are time limits for making a claim, and the degree of permanent impairment must be at least 15% to be eligible for a common law claim.
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Motor vehicle accidents
In most cases, the driver who is at fault for the accident is legally and financially responsible for any resulting damages. This typically involves filing a claim with their insurance company, which will then negotiate and settle the claim based on the determined fault percentage and the total amount of damages. However, if the at-fault driver does not have sufficient insurance coverage, the affected individual can turn to their own insurance policy, specifically their collision coverage or uninsured motorist property damage coverage, to cover the costs.
The involvement of legal representation can significantly impact the outcome of damage recovery. Hiring a personal injury attorney or an experienced motor vehicle accident lawyer can help individuals navigate the complex process of determining fault, calculating damages, and pursuing compensation. They can also assist in challenging the insurer's decision in court if needed.
It is important to note that the specific laws and regulations regarding motor vehicle accidents and damage recovery can vary depending on the state or country. For example, some states operate under a no-fault system, where determining fault may not be the primary factor in deciding who pays for the damages. Additionally, there may be caps on general or non-economic damages in certain states.
When it comes to the amount of compensation, it depends on the extent of the loss and the impact of the injuries on the individual's life. This includes factors such as the severity of the injuries, age, life expectancy, and the level of fault. Lump sum compensation under common law damages may be available in certain circumstances, such as when the injured person has a permanent impairment exceeding a certain threshold.
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Contract law
In contract law, if one party fails to fulfil their contractual obligations, they may be liable to pay damages to the other party. The aim of damages is to place the non-breaching party in the same position they would have been in had the contract been fulfilled. This can take the form of compensatory damages, which compensate the non-breaching party for the actual financial losses suffered as a direct result of the breach. Incidental damages, which are immediate costs incurred by the non-breaching party due to the breach, such as transportation or inspection costs for defective goods, are also recoverable.
There are also consequential damages, which refer to more significant, situation-specific losses, like lost profits or damaged reputation. These are only recoverable if the breaching party was aware of the potential for such losses when the contract was formed. Punitive damages, also known as exemplary damages, are generally not awarded in contract law cases as the law recognises that parties should be allowed to breach a contract if it is more economically efficient to do so. However, in rare instances, punitive damages may be awarded in cases involving an independent tort, such as fraud, and where the conduct was particularly egregious.
Nominal damages are also possible, where a court awards a small amount of damages to indicate disapproval of the court action. This may be relevant in defamation cases, for example, where the false statement is unlikely to damage the claimant's reputation further. Special damages are another type of damages that are awarded for losses reasonably supposed to have been contemplated by both parties at the time of contracting as the probable result of a breach.
In some cases, monetary damages may not adequately compensate the injured party, and a court may order specific performance, requiring the defendant to fulfil their contractual obligations. This is particularly common in contracts for the sale of real estate, as each piece of property is considered unique.
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Common law claims process
The common law claims process can be complex and challenging, and it's recommended that individuals seek legal advice from experienced personal injury lawyers. The first step in the process is to provide a letter of demand to the proposed defendant, allowing them to raise any valid defences and inform their insurer about the claim. If the defendant cannot present any valid defences, the next step is to initiate legal proceedings in the District Court.
To pursue damages under common law, the claimant must demonstrate fault, breach of statutory duty, or breach of another relationship, such as an employment contract. In personal injury cases, this involves showing that the defendant owed them a duty of care, and that their negligence caused the injury with a related financial loss. This can be complex and time-consuming, requiring substantial evidence such as medical records, witness statements, and expert testimony.
Once the claim has been established, the next step is to lodge a claim with the defendant's insurance company. The insurer will then have the opportunity to respond, and if they do not defend the claim, they may settle immediately. Otherwise, the claim is mediated, and most compensation claims are settled through this process. If mediation is unsuccessful, the case may go to court, where a judge will determine the outcome.
The duration of the common law claims process can vary, typically taking anywhere from 12 months to 3 years to settle, depending on factors such as the medical stabilisation of the injured person, the complexity of the case, the number of parties involved, and the amount of evidence required.
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