What’s the difference between statutory and common law in personal injury claims?
In Australia, there are two main types of law: statutory law and common law. Statutory law is made by the government, while common law is shaped by court decisions over time.
When it comes to personal injury claims, the main difference between statutory and common law claims often comes down to whether someone else is to blame for your injuries. Although they are separate types of claims, you might be able to pursue both for the same injury or illness.
Here’s a quick rundown of how statutory and common law work and how they might affect your personal injury claim.
What is statutory law?
A statute is just another word for a written law. For instance, your employer’s legal duties towards you at work are defined in workers compensation statutes.
Each state has its own set of workers compensation laws, and there are also separate laws for Commonwealth employees. In New South Wales (NSW), for example, workers are protected under the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2017.
Examples of statutory claims
As the name suggests, a statutory claim is one that’s made under a statute. In many cases, you don’t need to prove that someone else was at fault to make a statutory claim.
Below, we’ll discuss two of the most common statutory personal injury claims: workers compensation and CTP motor accident claims.
Workers compensation claims
You can make a statutory workers compensation claim if you’ve developed a work-related injury or illness. This also includes situations where an existing injury has been aggravated by work.
Most injuries and illnesses are covered, regardless of:
- Who was at fault.
- Whether you’re part-time, full-time, or casual.
- Whether you’re a subcontractor (in most cases).
- If the injury is psychological (such as stress), as long as it was directly caused or worsened by your job.
CTP motor accident claims
All registered vehicles need to have Compulsory Third Party (CTP) insurance, known as a ‘Green Slip’ in NSW. This insurance lets you claim compensation if you’re hurt in a road accident, whether you’re a driver, passenger, pedestrian or cyclist.
In NSW, Victoria, Tasmania, the ACT and the Northern Territory, you can make a CTP claim even if the accident was your fault. However, in Queensland, South Australia, and Western Australia, you’ll need to prove that someone else caused the accident to be eligible for compensation.
What is common law?
While stature law is decided by parliament, common law is shaped by judges in court. In every new case, judges look at past decisions to guide their rulings. Over time, these decisions build up a set of precedents, which help define how the law works in practice.
A recent case, Sinclair v Coles Supermarkets Australia Pty Ltd (2024), highlights how common law can work in practice. Sinclair slipped in Coles but couldn’t provide CCTV footage of the accident. Instead, he showed evidence of similar past incidents. The court ruled this was enough to prove Coles was aware of the risk and hadn’t done enough to address it. Through this decision, the court has opened up more options for slip-and-fall victims to get compensation.
Examples of common law claims
A common law claim allows you to get compensation if another person’s negligence caused your injury. Three of the most frequent types include:
Exactly what ‘negligence’ looks like differs depending on your type of claim, but it usually involves someone failing to take reasonable regard for your safety. This could be through a direct action or a failure to do something. For example, in a work-related common law claim, a negligent act might be your employer forcing you to work unreasonable hours, while a failure to act could be not providing proper safety equipment and training.
How much compensation can I get for each type of claim?
Statutory law and common law claims offer different types and amounts of compensation. Here’s a look at what you might expect from each.
Statutory claims
Workers compensation
You’ll receive weekly payments to cover lost earnings, medical treatment, rehabilitation and the cost of travel between treatments. If your injury is permanent, you may also receive an additional lump sum payment.
CTP motor accident claims
The amount of compensation you get depends largely on your state and whether someone else was at fault for the accident.
In NSW, Victoria, Tasmania, the ACT, and the NT, you can receive basic compensation even if the accident was your fault. This includes lost wages, medical expenses and care costs.
In Queensland, SA and WA, you’ll need to prove someone else caused the accident to receive compensation. On top of basic expenses, you could receive compensation for things like loss of life expectation, pain and suffering, loss of enjoyment of life, and loss of capacity to care for a dependent.
Common law claims
Unlike the basic compensation statutory claims offer, common law claims can lead to significant lump sum payouts — often in the hundreds of thousands. If your injuries are more severe, you could receive millions in compensation.
Depending on your age, situation, and the type of claim, your compensation could cover:
- Lost income: this includes both past and future earnings, plus superannuation.
- Pain and suffering: compensation for how your injury affects your physical and mental health.
- Care and support: costs for professional care or help from family and friends, as well as compensation if you can no longer care for someone who depends on you.
- Other expenses: medical bills, travel costs, and any modifications needed for your home or vehicle.
Ryan wins workers comp and motor accident claim for catastrophic accident
After a motorbike accident, Ryan was left with severe foot injuries. He needed multiple surgeries and had several toes amputated. We filed a workers compensation claim for immediate financial relief, covering his lost wages and medical expenses. We then pursued a motor accident claim to secure his future care.
While the driver admitted fault, our goal was to maximise Ryan’s compensation. We used expert medical reports and testimonies to show the full effect of Ryan’s injuries on his life. Through negotiations, we eventually secured Ryan a $1 million settlement. This substantial amount covers not only his lost income and medical treatment, but also compensates him for his pain and suffering.
Do I need a lawyer for my claim?
No matter what caused your personal injury or who’s at fault, it’s a great idea to chat with an experienced lawyer before starting your claim. In your initial consultation, a lawyer will look into your situation and figure out if you have a statutory claim, a common law claim, or both.
For instance, if your injury is work-related, a lawyer can help you access immediate benefits under your state’s statutory scheme. Once that financial stress is eased, your lawyer will dive deeper into your case. If employer negligence is involved, they’ll help you gather compelling evidence and file your claim in court. Your lawyer will be with you every step of the way, making sure you meet all deadlines and requirements to secure the maximum compensation for your injuries.
On top of this, an expert personal injury lawyer knows how to find your additional entitlements like income protection or a TPD payout. These extra claims can be worth much more than your initial claim alone, significantly increasing your total payout.
Speak to us today for free advice on your statutory and common law claims. Find out what claims you can make, how much you could receive, and the best strategy for winning your case.
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