What is a common law claim in Australia?
Contents
What Is a Common Law Claim in Australia?
In Australia, a common law claim is a legal action that arises from principles developed through judicial decisions over time, rather than from statutes or legislation. It allows individuals who have suffered injury or loss due to another party’s negligence or wrongful conduct to seek compensation. Common law claims are an essential part of the Australian legal system, particularly in areas such as personal injury, workplace accidents, and motor vehicle collisions.
Understanding Common Law vs Statutory Claims
Australia’s legal system integrates both statutory law and common law. Statutory law consists of laws enacted by Parliament, such as workers’ compensation legislation or motor accident injury schemes. These laws often provide no-fault benefits, meaning compensation can be paid without needing to prove fault.
In contrast, a common law claim requires proof of fault—that is, you must demonstrate that another person or entity was negligent or breached a duty of care, causing your injury or loss. For example, if you are injured in a car accident caused by another driver’s careless driving, you may pursue a common law claim against that driver or their insurer.
What Does a Common Law Claim Involve?
At its core, a common law claim is based on the legal principle of negligence. To succeed, you must prove:
- Duty of Care: The other party owed you a duty to act reasonably and avoid causing harm.
- Breach of Duty: They failed to meet that duty through careless or wrongful actions.
- Causation: Their breach directly caused your injury or loss.
- Damages: You suffered actual harm, such as physical injury, financial loss, or pain and suffering.
Common law claims can cover a wide range of legal grievances, including personal injury from workplace accidents, motor vehicle crashes, medical negligence, and more.
Common Law Claims in Different Contexts
- Workplace Injuries:
While workers’ compensation schemes provide statutory no-fault benefits, injured workers may also pursue a common law claim against their employer or a third party if negligence caused their injury. To do so, they usually must meet certain thresholds, such as a minimum degree of permanent impairment (often 15% whole person impairment). - Motor Vehicle Accidents:
If you are injured in a car accident caused by another driver, you can file a common law claim for damages beyond statutory benefits. This claim can include compensation for pain and suffering, loss of income, medical expenses, and future care needs. - Other Personal Injury Claims:
Common law claims also apply to injuries from public liability incidents, medical malpractice, and product liability.
How Is Compensation Calculated in a Common Law Claim?
Compensation awarded through a common law claim aims to cover both economic and non-economic losses:
- Economic Losses:
These include past and future medical expenses, loss of income, loss of superannuation, and costs of care or rehabilitation. - Non-Economic Losses:
Often called “general damages,” these compensate for pain, suffering, emotional distress, and loss of enjoyment of life.
The amount depends on the severity of your injury, its impact on your life, your age, occupation, and other personal circumstances.
Time Limits and Legal Process
In Australia, you generally have three years from the date of injury to commence a common law claim, although this can vary by state and circumstance. It is crucial to act promptly because missing this limitation period can bar you from pursuing compensation.
The process typically involves:
- Obtaining medical assessments to establish the extent of injury and permanent impairment.
- Filing a formal notice of claim, often with the assistance of a lawyer.
- Negotiating with the at-fault party or their insurer.
- If necessary, proceeding to court to have damages assessed.
Differences Between Common Law and Statutory Claims
- Fault Requirement:
Common law claims require proving negligence; statutory claims often do not. - Scope of Compensation:
Statutory claims usually provide limited benefits (e.g., medical expenses, income support), while common law claims can provide broader damages, including pain and suffering. - Thresholds:
Common law claims often require meeting injury severity thresholds. - Legal Complexity:
Common law claims are more complex and usually require legal representation.
Protecting Your Common Law Rights
To preserve your right to make a common law claim, it is important to:
- Seek early medical treatment and obtain thorough medical reports.
- Consult a specialist personal injury lawyer promptly.
- Undergo any required impairment assessments.
- Keep detailed records of all losses and impacts related to your injury.
Conclusion
A common law claim in Australia is a legal avenue to seek compensation when you have been injured or suffered loss due to someone else’s negligence or wrongful conduct. Unlike statutory claims, common law claims require proof of fault and can provide more comprehensive compensation, including damages for pain and suffering and economic loss. Given the legal complexities and strict time limits, it is crucial to seek expert legal advice early to understand your rights and maximize your compensation.
