Negligence on the roads: a guide to common law claims

Monday 18 April 2016

Most traffic accidents are caused by someone’s fault or negligence.  The person at fault could be a driver, a mechanic or car manufacturer, or the authority responsible for maintaining the road.  A claim seeking compensation for an injury where negligence is involved is called a common law claim.

When can I bring a common law claim?

Even where your injury was caused by another person’s fault, you do not automatically have the right to sue for compensation.  You must first establish that you have suffered a serious injury.

What is a serious injury?

This means either receiving an impairment assessment of 30% or greater in a lump sum application or qualifying under one of the definitions of serious injury set out by law.  These are:

  • Permanent serious impairment or loss of a body function
  • Permanent serious disfigurement
  • Permanent severe mental or permanent severe behavioural disturbance or disorder
  • Loss of a foetus

Whether you meet any of these definitions involves an assessment of the injury and its effects, to see if the consequences of the injury are ‘more than significant’ when compared with other cases.

The Transport Accident Commission (or TAC) through its lawyers may issue a certificate confirming you have suffered a serious injury.  If your application for a serious injury certificate is denied, then a case can be issued in the County Court of Victoria seeking a certificate.

How long does a common law claim take?

A common law claim can only be started after your injury is stabilised.  We then need to gather all medical records and reports and this can take up to 6 months.

From this time, the duration varies dependent on factors including whether the TAC rejects or accepts the serious injury application, the complexity of the case, and whether the case settles prior to litigation.  As a rough guide, from the date of the serious injury application (the first step) common law claims can take between 6 – 24 months.

How long do I have to make a common law claim?

A common law claim must be commenced within 6 years of the date of injury.  Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms.  You should seek advice well before the 6 years expires, however, as preparing a case takes some time.

In some limited circumstances, you can bring a common law claim more than 6 years after your date of injury, for example if you only recently became aware of the seriousness of your injury.

Would I have to go to court?

In a common law claim, there are two stages in the process that could involve going to court – the serious injury application, and the trial regarding negligence.

The majority of cases we act in reach negotiated settlements, particularly after a serious injury certificate is deemed or granted.  Adviceline Injury Lawyers will advise you fully on your case and any risks involved prior to starting any court case.

What compensation could I receive?

  • If you are granted a serious injury certificate, you can bring a claim for pain and suffering damages, loss of earnings, or both.
  • If you have already received a lump sum payment, this is deducted from any pain and suffering damages that you receive.
  • If you are able to bring a claim for loss of earnings, you can claim for your past and future economic loss (lost wages and superannuation).

To discuss your injury or illness and find out more about your entitlements, call and speak directly to one of our expert injury lawyers on (03) 9321 9988.

We provide no obligation, no cost initial advice, and offer a ‘No Win, No Fee’ service.

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