What is a common law claim for damages?

Injuries shouldn’t have to cause you financial pain too. . .

Taking time off work and dealing with out-of-pocket expenses due to an injury doesn’t seem fair, does it? And especially for a serious injury that can see you out of action for months. Well, there is something you can do about it – file a common law claim.

A common law claim for damages is where you take legal action against a party for a negligent or wrongful act or omission which has caused you injury. With a common law claim, you can receive financial compensation for any losses you have suffered because of those injuries.

For example, if you suffer a workplace injury and sue your employer for your work injury to recover damages. These claims may also be covered by WorkCover Queensland.

Can I get accident injury compensation?

What are common law damages in personal injury claims?

When we talk about “damages” in common law claims, we are talking about the lump sum payment you could be awarded for your injuries. The total amount of damages you will receive depends on the extent of your injuries and how much they have impacted your life.

As a rule, those who suffer permanent impairment are generally awarded a larger amount of damages, to compensate for the recovery as well as helping them adjust to a completely new lifestyle.

Common law compensation takes into account any economic loss you have suffered as a result of your injuries, including damages for:

  • loss of earnings (all past and future losses)
  • loss of superannuation entitlements
  • medical expenses and ongoing care costs
  • interest on these losses, sustained as a consequence of your injuries
  • pain and suffering and loss of amenities

For your claim to succeed under common law in QLD, you have to prove that the party who you are suing has acted wrongfully or negligently and this has in some way resulted in your injury occurring. This is also called a breach of duty of care.

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A common law claim is not based on a "no-fault" scheme

Unlike a workers’ compensation claim, a Common Law Claim is not based on a “no-fault” scheme. In fact it is just the opposite.

According to QLD legislation, you can make a statutory claim for workplace injuries regardless of whether or not the injury was caused by the employer’s negligence, wrongful act or omission. This claim will cover medical costs and wages while you are unable to work.

You can only claim common law damages in workers’ compensation cases if you can prove your injury has been caused or contributed to in some way by the negligence or wrongful act or omission of another party (e.g. your employer or a co-worker, the driver of another vehicle, management at a shopping centre etc).

The test is one of “reasonable care” and “reasonable foresee-ability” of the injury occurring as a result of the negligent or wrongful act or omission. Has the employer taken all reasonable steps available to avoid a reasonably foreseeable risk of injury to the injured worker in the performance of their work duties?

Proving that an employer hasn’t taken reasonable care can be complicated, which is why it’s essential to have an experienced personal injury lawyer help you prepare your common law claim.  

What is the process for making a common law claim in QLD?

In all personal injury claims, the claim is commenced with a Notice of Claim (NOC) on the at-fault party or parties. This provides details of the injuries being claimed for, how they occurred, the negligence of the at-fault party which caused the injuries, and the loss and damage sustained as a result of the injuries.

Depending on the status of your injuries at the time of commencing your common law claim in QLD, it can take as little as 6 months to resolve. However the average duration is around 12 to 18 months.

Common law claim durations are usually dependent on the complexity of the matter, as it is the more complex matters that proceed to trial. If a matter does go to trial, then it can take 2 to 3 years or even more to obtain a final determination from a Court, however, the majority of claims in Queensland settle during the claims process and do not proceed to a trial.

Call, chat or email us at The Personal Injury Lawyers for trusted legal advice about all common law claims in QLD. We can guide you through every step of the process.

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