No Win No Fee Personal Injury Lawyers are experts in personal injury claims, including Common Law Claims. A Common Law Claim is what most of us know as a lawsuit. It is where you sue a party who has wrongfully or negligently caused you to suffer injury, to obtain compensation for your injury and any resulting loss and damage. Examples of this are where you sue an at-fault driver for injuries you suffer in a car accident, or suing a Shopping Centre for injuries sustained because of unsafe premises.
The Difference Between a Common Law Claim and a Statutory Claim
Common Law claims are claims you have at Common Law. “Common Law” is law that has developed over many years of judicial decisions (Court decisions). It is to be distinguished from “statutory law”, which is law enacted by legislation or statute. Rights or entitlements we have at Common Law can only be altered by legislation specifically restricting or adding to them.
A good example of this is in the case of work injury claims in Queensland. When a worker in Queensland is injured at work, on their way to or from work or during a work break, they have a right to bring a workers’ compensation claim. A worker’s right to workers’ compensation is not a Common Law right. It is a right provided by way of legislation or statute, more specifically, the Workers’ Compensation & Rehabilitation Act 2003. Hence, often workers’ compensation claims are referred to as “statutory claims”.
Common Law Claims For Damages for Work Injury
But workers in Queensland also have another right to claim compensation when injured at work. This secondary claim is their Common Law right to claim damages, and hence is called a Common Law Claim for Damages. It is where the injured worker brings a legal claim, or law suit, against their employer, to obtain lump sum compensation for their work injury and any resulting loss and damage caused by their injury.
Unlike with workers’ compensation claims, where anyone injured at work, no matter fault, may bring a claim, in the case of Common Law claims, only those workers injured because of the wrongful or negligent act of their employer, or co-worker have a Common Law claim.
Not all injured workers in Australia have the right to a Common Law claim. A number of States have legislated excluding this right, limiting workers solely to workers’ compensation claims. Fortunately, workers injured in Queensland still have a right to pursue a Common Law claim where they are injured at work due to their employer’s or a co-worker’s negligence or wrongful act.
What Rights do I have at Common Law to bring a Claim for Damages
Claims for damages or compensation for personal injury at Common Law, are most commonly grounded upon breaches of the Common Law of:
- Negligence – failing to take due care causing injury (eg. unsafe shopping centre causing injury to shoppers or negligent driver causing a car accident);
- Trespass to the Person – there was intention to harm (eg. cases of assault);
- Contractual Breach – where breach of a contractual duty causes injury to a party to the contact (eg. breach of the employment contact by an employer causing injury to a worker); and
- Breach of Statutory Duty – where breach of legislation results in injury (eg. a public office holder fails to perform his public duty as required by legislation, causing injury).
These grounds for bringing a lawsuit at Common Law are referred to as “torts” or “tort law”.
What can I Claim for in a Common Law Claim for Damages
At Common Law, you have the right to claim compensation or damages for the following heads of damage:
- Pain and suffering;
- Loss of past and future income;
- Loss of past and future superannuation benefits;
- Past and future medical expenses (eg. medication, treatment, medical aids & equipment, home & vehicle modifications, out of pocket expenses, travel etc);
- Past and future care and assistance (assistance with home duties, personal care and home, vehicle & yard maintenance);
- Interest on past losses (past lost income & superannuation benefits, past care, medical and out of pocket expenses).
In certain cases of personal injury claims, legislation restricts what damages can be claimed for. These restrictions, when they apply, relate to restrictions on claims for pain & suffering, care and assistance and interest. Also, capping can apply to claims for past and future lost income in some cases of personal injury claim.
The Civil Liability Act 2003 applies such restrictions to all personal injury claims in Queensland save for work injury claims, which are subject to restrictions under the Workers Compensation & Rehabilitation Act 2003. In certain circumstances, the Civil Liability Act will not apply. In such case full Common Law damages can be claimed.
Personal Injury Law is a very specialised and complex area of law. It is therefore imperative that you speak to a Senior Personal Injury Lawyer, expert in personal injury claims to ensure you are achieving all of your compensation entitlements.
You will Only be Fully Compensated for your Injury by way of a Common Law Claim
It is only through a Common Law claim that you will achieve proper compensation for an injury sustained because of the fault of another party.
With work injury claims in Queensland, injured workers must make an election before bringing a Common Law Claim for damages. They must choose between an offer of Statutory Lump Sum Compensation, or proceeding with a Common Law Claim for Damages. And once they make their decision, they cannot go back on it. Hence this decision is called an, “Irrevocable Election”.
Typically, offers of statutory Lump Sum Compensation to injured workers are for minor amounts only. They will not properly compensate a worker for their injury and the loss and damage resulting from it. The difference in compensation that can be achieved by way of Common Law Claim compared to Statutory Lump Sum Compensation, can be significant. For example, a Labourer with a back injury offered $3,000 by way of statutory Lump Sum Compensation, could receive $800,000 or more by way of a Common Law Claim.
So, if injured at work, you should speak to a Personal Injury Lawyer before responding to any Lump Sum Offer. The wrong response, could mean you miss out on significant compensation.
Who Pays for My Common Law Claim for Damages
In work injury claims, the workers’ compensation insurer will pay for your Common Law Claim and not your employer. This is usually WorkCover Queensland, the primary workers’ compensation insurer in Queensland.
In motor vehicle accident claims, the Compulsory Third Party (CTP) Insurer of the at-fault vehicle will pay for your motor accident injury claim. And where the at-fault vehicle is unidentified, Queensland’s Nominal Defendant steps in as the CTP Insurer to pay the claim. This also applies in the case of unregistered vehicles.
In cases of medical negligence claims, the professional indemnity insurer of the at-fault medical provider will meet your claim for damages.
In other personal injury claims, typically the public liability insurer of the at-fault party will meet your Common Law Claim. Where the at-fault party is not insured, then it is the at-fault party who must pay for your claim.
Time Limits Apply to Common Law Claims in Queensland
There are time limits applying to Common Law Claims for personal injury in Queensland. You have 3 years from the date of your injury in which to bring your claim. This time period can be reduced significantly where your injury has occurred over a period of time. Time limits are strictly applied. It’s therefore important that you speak to a Senior Personal Injury Lawyer about your case as soon as possible.
No Win No Fee Personal Injury Lawyers are Experts in Common Law Claims
No Win No Fee Personal Injury Lawyers specialise in Common Law Claims and Statutory Claims for personal injury. If you’ve been injured in any way, it’s important that you contact us to discuss whether you have a claim to pursue and to ensure you’re fully and properly compensated for your claim.
It is also important you remember that time limits apply to personal injury claims. Delaying your enquiry could mean you miss out on significant compensation.
A Senior Personal Injury Lawyer is available 24 hours a day, 7 days a week to take your enquiry. You can contact us by phone on 1300 388 383, by chatting to us online or sending us your enquiry via one of our FREE Instant Case Appraisal forms on our website.
Learn more about No Win No Fee Personal Injury Lawyers and why you should contact us about your case go to our About Us and Why Us webpages. You can also view the services we offer you by heading to our “Services” page.
No Win No Fee Personal Injury Lawyers are experts in Common Law Claims for Damages. Brisbane & Gold Coast Personal Injury Lawyers.