Common Law Claim in Queensland: A Comprehensive Guide

A common law claim in Australia is a legal avenue pursued by people who suffer personal injury due to another party’s negligence. This claim allows victims to seek compensation for both economic and non-economic losses, such as medical expenses, lost wages, and pain and suffering. Common law claims differ from statutory claims because they require proving fault or negligence.

Elements of a Common Law Claim

To successfully pursue a common law claim, the injured person must prove four essential elements:

1. Duty of Care: The defendant owed a legal obligation to take reasonable care to avoid causing harm.
2. Breach of Duty: The defendant failed to meet that standard of care.
3. Causation: The breach directly caused the claimant’s injury.
4. Damages: The injury resulted in measurable harm, such as physical pain, psychological damage, or financial loss.

Common law claims cover a wide range of incidents, including motor vehicle accidents, workplace injuries, public liability cases (such as slips and falls), and medical negligence.

Types of Damages in Common Law Claims

Successful claimants in common law claims may receive a variety of damages:

• General Damages: Compensation for pain and suffering, loss of enjoyment of life, and emotional distress.
• Past and Future Loss of Wages: These include lost wages, and superannuation in the past, and in the future – potentially up to normal retirement age.
• Past and Future Out-of-Pocket Expenses:  This includes medical expenses, pharmacy expenses, rehabilitation costs and other out of pocket expenses reasonably required as a result of the injuries.
• Past and Future Care and Assistance (in some instances): Claimants may also seek compensation for the cost of care provided to them (for free) by family members or friends.   If the care and assistance is provided on a paid basis, the cost can be claim.  This does not apply to all common law claims.
• Legal Costs (in some instances):  In some claims, the defendant or insurer is required to pay for a portion of your legal costs and disbursements.

Common Law Claims vs. Statutory Claims

Queensland has statutory compensation schemes, such as workers’ compensation, which provide no-fault benefits to injured workers. However, these schemes often limit the amount of compensation and the types of damages that can be claimed. A common law claim, on the other hand, allows injured people to seek broader compensation by proving that another party was at fault.

For example, in the context of workers’ compensation, injured workers can often receive limited compensation for medical expenses and lost wages without proving fault, in a statutory claim. However, if they believe their injury was caused by employer negligence, they can pursue a common law claim for additional compensation, including general damages for pain and suffering.  Common law claims can often be 10 times more in value than amounts awarded during statutory claims.

Making a Common Law Claim: The Process

The process of making a common law claim typically involves several stages:

1. Notice of Claim: The injured party sends a formal Notice of Claim to the at-fault party or their insurer, detailing the nature of the injuries and the basis for the claim.  In a WorkCover claim, this is generally WorkCover.
2. Gathering Evidence: The claimant must collect evidence to prove negligence, such as medical reports, witness statements, and expert opinions.
3. Negotiations: Many claims are settled through negotiation without proceeding to court. The at-fault party or their insurer may offer a settlement to avoid litigation.  Out of court settlement generally happens in more than 99% of claims.
4. Litigation: If a settlement cannot be reached, the claim proceeds to court, where a judge assesses the evidence and determines compensation.
   If you engage a lawyer, they will complete these steps for you to ensure you get the maximum compensation possible.

It is essential to seek legal advice early in the process to ensure that the claim is properly prepared and meets all necessary legal requirements.

Time Limits for Common Law Claims

In Queensland, there are strict time limits for lodging a common law claim, known as the “statute of limitations.” These time limits vary depending on the type of claim you have (for example: workers’ compensation vs motor vehicle accident) but are typically three years from the date of the injury. Failing to file within this timeframe can result in the claim being dismissed.  In some claims the time limits can be much shorter, as short as 3 months, so it is essential you seek advice as soon as possible to ensure your rights are protected.

Common Law Claims in Queensland

Queensland operates under a hybrid system, allowing for both statutory and common law claims. The state’s workers’ compensation system is governed by WorkCover Queensland, which provides no-fault benefits to injured workers. However, if a worker can prove that their injury resulted from employer negligence, they can pursue a common law claim for additional compensation.

Workers’ Compensation and Common Law Claims in Queensland

Under Queensland law, workers can initially make a statutory claim through WorkCover, which covers medical expenses and lost wages without the need to prove fault. However, if the worker believes their employer’s negligence caused their injury, they may pursue a common law claim after receiving statutory benefits.

For a successful common law claim, the worker must demonstrate that the employer breached their duty of care by failing to provide a safe work environment. If successful, the worker can receive damages for pain and suffering, economic loss, and other expenses that exceed the statutory benefits.

Motor Vehicle Accidents and Common Law Claims in Queensland

Queensland’s compulsory third-party (CTP) insurance scheme provides compensation to individuals injured in motor vehicle accidents, regardless of fault. However, if a person suffers serious injury and can prove another driver’s negligence, they may pursue a common law claim for further compensation. The claim may cover medical expenses, lost wages, and non-economic losses such as pain and suffering.

Public Liability and Common Law Claims in Queensland

Common law claims for public liability injuries—such as slips, trips, and falls in public spaces—are also common in Queensland. There is no statutory scheme for public liability claims, meaning the injured party must prove that the property owner or occupier failed to take reasonable steps to prevent foreseeable injuries. Successful claims can result in compensation for medical expenses, rehabilitation costs, and other damages.

Time Limits in Queensland

Queensland imposes strict time limits on filing common law claims, with a general three-year limit from the date of injury. In some cases, the time limit may be extended, but this is rare and usually requires special circumstances.  In some cases, the time limit is also much shorter, so getting advice early is essential.

Conclusion

Common law claims in Queensland provide a critical avenue for people seeking compensation for injuries caused by negligence. While statutory schemes offer basic benefits, common law claims allow injured parties to pursue broader (larger amounts) of compensation, including for pain and suffering and future economic loss. In Queensland, the hybrid system offers workers and accident victims additional legal options for seeking justice and fair compensation.

With the support of an experienced personal injury lawyer, claimants can navigate the complex legal landscape of common law claims and maximise their compensation. Whether dealing with workplace injuries, motor vehicle accidents, or public liability incidents, individuals have the right to seek compensation for their losses, ensuring that their financial burden is alleviated as they recover from their injuries.

Best Injury Lawyers’ Role in Making Your Claim

Best Injury Lawyers, a Queensland-based personal injury firm, specialises in assisting clients with common law claims by offering expert legal advice and representation. The firm only practices in personal injury claims, and has a particular specialty in workers compensation and motor vehicle accident claims.

Best Injury Lawyers will work to secure you maximum compensation so you can focus on getting better and providing for yourself and your loved ones. Let our team take on the burden of your claim and get you your best result.