A common law claim usually refers to a court action against another person or corporation based on negligence or breach of statutory duty in the personal injury context. If you are injured at work and seeking common law damages, it is essential to distinguish a common law claim from a regular, no-fault based workers’ compensation claim. A person bringing a common law claim has to show fault, breach of statutory duty, or breach of some other relationship (such as a contract of employment).
This article has explained more about how to claim compensation and seek common law damages.
Table of Contents
- What are common law claims?
- How long do common law claims take?
- How do I make a common law claim?
- How much can you get from a common law claim?
- What is a common law settlement?
- What is a damage claim?
- How are damages awarded?
- What are the different types of damages?
- How do you prove employer negligence?
- Is negligence under common law?
What are common law claims?
What is a common law claim for damages?
A common law claim for damages in personal injury is a claim against another person or corporation for injury compensation, usually arising from a specific incident or a set of particular incidences (repetitive strain or psychological injuries).
Often, the injured person needs to show that the defendant (i.e. negligent party) owed them a duty of care to take reasonable care to ensure they are not exposed to hazards (or similar). The injured person must then show that the defendant breached that duty of care and was negligent. Only if the injured person can establish negligence or breach of statutory duty will they be successful in a common law negligence claim for damages.
What is common law compensation?
Common law compensation is money paid by a negligent party to put an injured person back in their position before the injury, so far as money can do so.
The exact compensation amount that a person will be entitled to will usually be determined by precedent or case law. Therefore, it is crucial to obtain legal advice from injury compensation lawyers to have a realistic idea of how much such a claim is worth.
The usual situation is that the defendant is insured regarding a compensation claim, and their insurer will defend the proceedings on their behalf. When the case is settled, the insurer of the defendant will typically pay the damages to the injured person on the defendant’s behalf.
How long do common law claims take?
Most common law claims take 12 months to 3 years to settle. In general, the time taken for an injured person to reach medical stabilisation determines how long common law claims take.
In a common law claim, the judge awards damages in the court system and will assess damages once and for all. This means that once such a claim is settled, no further claim can be bought regarding the same set of circumstances. For this reason, it is important to wait for medical stabilisation before commencing or resolving a common law claim.
The time for medical stabilisation varies from case to case. For example, if there is no surgery involved, the injured person often reaches medical stabilisation about 12 months from the date of injury. However, if surgery is involved, stabilisation will typically occur after 12 months from the date of surgery.
How do I make a common law claim?
Seek compensation for workplace injury
To make a common law claim for workplace injuries, injured workers need to lodge Form 34, Election to Retain Rights to Seek Damages, with WorkCover WA. One should only sue employers’ negligence if they have a whole person impairment of 15% or over and can prove your employers’ negligence.
Making a common law election against your employer is an important decision, as upon making a common law election, statutory benefits cease (medical treatment costs, rehabilitation costs and travel costs). In addition, weekly payments of compensation are subject to a step down over a six-month period.
You should seek legal advice from a workers compensation lawyer before making an election to pursue common law damages. It may make more sense to remain in the no-fault workers compensation system, especially if it is hard to prove negligence.
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Seek compensation for injury
To make a common law claim for public liability injuries, medical negligence injuries and motor vehicle accidents injuries, the steps start with providing a letter of demand to the proposed defendant. This letter allows the defendant to bring forward any legitimate defences and notify their insurer about the claim.
Suppose the proposed defendants can not produce any legitimate defences. In that case, the next step in making a common law claim is to commence a legal proceeding in the District Court of Western Australia. Before starting legal proceedings, you should seek legal advice from qualified personal injury lawyers.
If legal costs are your concern, please reach out to one of the No Win No Fee injury compensation lawyers. They don’t charge upfront legal costs for an initial consultation.
The limitation period for a common law claim in Western Australia is generally three years for a personal injury claim. You must start the legal action before the limitation period.
How much can you get from a common law claim?
In the 2022 Financial year, for employer negligence the maximum you can get for a limited common law claim is $502,279. This amount includes workers compensation payments made to the injured worker before the common law election date. If the injured worker has an unlimited common claim there is no maximum limit on how much you can get from a common law claim. Whether you are eligible for unlimited common law damages claims, depends on your whole permanent impairment rating (WPI).
- Limited common law claim: whole permanent impairment not less than 15% but less than 25%
- Unlimited common law claim: whole permanent impairment rating is not less than 25%
In an unlimited common law matter there is no upper limit on how much compensation you can get from your common law claim. However, there are upper limits placed on general damages, economic loss, and gratuitous services by various legislation such as the motor vehicle (third party insurance act) 1943 and the civil liability act 2002.
What is a common law settlement?
A common law settlement is a lump sum payment paid by the at-fault defendant, or their insurer, to the injured person to resolve a common law claim.
Here are the usual ways to negotiate a common law settlement:
- Informal settlement by correspondence – make an offer in writing to the person at fault or their insurer.
- Informal conferences – attend a meeting with the insurer or their lawyer to resolve a common law claim.
- Commencement of legal proceedings – go through the court system. Serious injury claims often go through the court system.
The amount paid in a common law settlement is determined by:
- how clear is a claim of negligence?
- What is the extent of loss of earning capacity?
- What is the extent of the injury suffered?
- What is the need for medical expenses (both past and future)?
- What is the extent of the pain and suffering involved in the claim?
If a legal action proceeds to trial, it will continue for some years. The exact period will depend on the complexity of the legal action.
No Win, No Fee Lawyers
Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.
Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.
For quick information on our No Win, No Fee terms and disbursements, please visit our No Win No Fee Lawyers Page
What is a damage claim?
A damage claim is the same as a common law claim for damages in the context of personal injury claims.
How are damages awarded?
Common law damages are determined and awarded by the court if the matter proceeds to trial. In determining the damages to be awarded, a court will generally listen to relevant witnesses, such as the person who has been injured and medical witnesses.
An injured person will bear the onus of proving that the defendant was negligent and, as a result, they have suffered loss or damage. Generally, an injured person or their injury compensation lawyer will prepare a court document called particulars of damage, which sets out the injured person’s amount to claim. It is essential to know that this should be regarded as the injured person’s “best case” and is generally not the amount a court will award.
What are the different types of damages?
The court can award the types of damages customarily referred to as “heads of damage”. The usual heads of damage are as follows:
- general damages, which include pain and suffering, loss of enjoyment of life, and loss of amenity;
- loss of earnings and loss of earning capacity;
- past and future medical expenses;
- travel expenses;
- gratuitous services; and
- paid services.
How do you prove employer negligence?
You can prove Employer negligence through evidence given by the injured person, other witnesses, and very commonly by the documentary evidence associated with the claim. This documentary evidence may include incident reports, investigation reports and information about the work system involved before the injury.
Is negligence under common law?
Yes, negligence is a common law cause of action. To prove negligence, the person bringing the claim must generally prove that the defendant owed them a duty of care, and the defendant has breached that duty of care.
What are the grounds for suing an employer?
The most common grounds for suing an employer are:
- failure to provide a safe work system,
- failure to provide appropriate assistance from other workers,
- failure to properly supervise,
- failure to properly plan the system of work,
- failure to inspect the worksite, and
- failure to warn injured employees of danger
Contacting Foyle Legal
Foyle Legal is a personal injury law firm that represents injured people making common law claims on a no win no fee basis. If you have made a workers compensation claim for serious injury, contact Foyle legal, your first attendance is obligation free. You can contact Foyle legal for your obligation claim review on 0408 727 343.