If you’ve been injured and someone else is at fault, you may be able to pursue compensation through a common law claim. The compensation sought through this type of claim is known as damages. Damages are divided into separately calculated categories, known as heads of damage, which reflect the different ways an injury has affected your life.
A common law payout may include compensation for pain and suffering, past and future loss of income, medical and rehabilitation expenses, loss of superannuation and care needs. The heads of damages available (and how each is calculated) depend on the type of claim, the applicable Queensland legislation and your individual circumstances.
At L&H Injury Lawyers, we help people across the Sunshine Coast understand their rights and navigate the legal system with clarity and confidence. This guide explains common law damages in Queensland, along with eligibility, claim types, time limits and the common law claim process.
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Understanding Common Law Personal Injury Claims in QLD
In Queensland, people who have been injured may be able to claim compensation under two main legal pathways: statutory claims and common law claims.
A statutory claim is available where a worker is injured during the course of their employment. Under the Queensland workers’ compensation scheme, the worker may be entitled to make a claim through WorkCover Queensland or a self-insurer. Statutory benefits may include medical expenses, rehabilitation costs and weekly compensation as income support. These claims are generally no-fault, meaning you do not need to prove employer negligence to access compensation.
However, statutory benefits are limited to the entitlements available under the scheme. In a work accident claim, an injured worker may be able to pursue common law damages where the employer failed to take reasonable care and where negligence caused or contributed to the injury.
Common law claims may also arise from road accidents and public liability incidents. In each case, the injured person must generally prove negligence and establish the losses caused by the incident.
Because statutory and common law rights can interact, it is important to obtain independent legal advice early. An experienced personal injury lawyer from L&H Injury Lawyers can explain the eligibility criteria, assess the available evidence and help ensure you do not miss an applicable deadline.
What Are Common Law Claims?
Common law claims are personal injury claims made when someone is injured due to another party’s negligence. In Queensland, these claims allow an injured person to claim damages for losses such as pain and suffering, medical expenses, past loss of income, reduced future earning capacity, loss of superannuation and in some cases care and assistance subject to the evidence and circumstances of the claim.
Some examples of common law claims:
- Workplace injuries where safety procedures weren’t followed
- Car accidents involving another driver at fault
- Slips, trips or falls in public spaces due to poor maintenance
A common law claim may result in a lump sum payment that reflects the financial and non-financial effects of your injury. The compensation amount may account for pain and suffering damages, past and future economic loss, medical and rehabilitation expenses and, where applicable, care or domestic assistance.
By contrast, statutory claims refer to compensation prescribed and limited by legislation like the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which outlines rights and processes for statutory claims. There is no statutory claim available if you are injured in a car or road accident (unless you are travelling to or from work or during the course of your employment) or a public liability incident. Although, in most circumstances, when you are injured in a car or road accident and lodge a common law claim you would receive funding from the Compulsory Third Party Insurer for your reasonable treatment expenses.
What Are the Heads of Damages in Common Law Claims?
A common law payout is not usually calculated as one overall amount. Instead, the effects of the injury are considered under separate heads of damage. The amounts assessed under the applicable heads are then combined to determine the overall value of the claim.
Depending on the circumstances, these heads may include:
- General damages for pain, suffering and loss of amenities
- Past economic loss
- Future economic loss or loss of earning capacity
- Loss of superannuation
- Past and future medical, rehabilitation and other expenses
- Past and future care
- Interest on certain past losses
Not every head of damage will apply to every claim. The evidence must establish that the loss resulted from the injury, and the relevant calculation rules may differ between motor vehicle accident claims, workplace claims and public liability claims.
General Damages: Pain, Suffering and Loss of Amenities
General damages compensate for the non-financial effect of an injury. This may include physical pain, psychological suffering, loss of enjoyment of life, disfigurement and reduced ability to participate in work, family, recreational or everyday activities.
The assessment considers the nature and severity of the injury and its effect on the injured person. Relevant factors may include:
- The intensity and duration of pain
- The treatment and rehabilitation required
- Any permanent impairment
- The effect on mobility and independence
- Psychological or psychiatric consequences
- Disfigurement or scarring
- Loss of enjoyment of life
General damages are different from medical expenses or lost earnings. They compensate for the personal impact of the injury rather than a directly calculated financial expense.
How General Damages Are Calculated: The Injury Scale Value
In many Queensland personal injury claims, general damages are calculated using an Injury Scale Value, commonly known as an ISV.
The ISV is a numerical assessment on a scale from zero to 100. An injury that does not justify an award of general damages sits at the bottom of the scale, while 100 represents an injury of the gravest conceivable kind.
The applicable legislation and regulation provide ISV ranges for different types of physical and psychiatric injuries. When assessing the appropriate value within a range, consideration may be given to the injury’s severity, treatment, prognosis, ongoing symptoms and overall effect on the injured person.
An ISV is not the same as a degree of permanent impairment. Although medical evidence is important to both assessments, they serve different purposes and should not be treated as interchangeable. However, the degree of permanent impairment assists to determine the appropriate ISV.
How an ISV Becomes a Dollar Figure
Once the appropriate ISV has been identified, the corresponding general damages amount is calculated under the table or formula applicable to the claim and the date of injury.
The monetary value associated with an ISV changes over time. This means two people with similar injuries arising at different times may have their general damages calculated under different prescribed figures.
The ISV does not determine the entire common law payout. It applies to general damages only. Economic loss, superannuation, medical expenses and qualifying care are assessed separately.
Multiple Injuries and the ISV Uplift
When a person has sustained multiple injuries in the same incident, the individual ISVs are not ordinarily calculated and added together.
Instead, the assessment generally begins with the dominant injury; the injury falling within the highest applicable ISV range. The ISV may then be increased within that range to reflect the additional effect of any other injuries.
If the combined effect of the injuries is particularly severe, an assessment above the maximum range for the dominant injury may be possible. This is sometimes referred to as an ISV uplift. The uplift is intended to reflect the overall impact of the injuries without compensating twice for symptoms or limitations that overlap.
Queensland legislation on multiple injuries and ISVs expressly recognises this dominant-injury approach and does not permit simply adding separate ISVs together.
Past Economic Loss
Past economic loss compensates for income lost between the date of injury and the date the claim is resolved or assessed.
This head of damage may apply where the injured person:
- Was unable to work for a period
- Returned on reduced hours
- Moved into lower-paid duties
- Lost overtime, allowances, bonuses or other employment benefits
- Could not operate their business at its previous capacity
- Missed a reasonable employment or career opportunity because of the injury
Past economic loss is usually assessed using evidence such as payslips, tax returns, employment records, business accounts and medical reports concerning work capacity.
Any wages, statutory workers’ compensation payments or other income received during the relevant period may need to be considered. The calculation is based on the net financial loss attributable to the injury, rather than simply the amount the injured person earned before the incident.
Future Economic Loss and Loss of Earning Capacity
Future economic loss addresses the effect an injury is expected to have on the person’s ability to earn income after the claim is resolved.
A person does not always need to be completely unable to work. A loss of earning capacity may arise where the injury limits:
- The hours the person can work
- The physical or psychological demands they can manage
- The occupations or duties available to them
- Their ability to obtain promotions or progress professionally
- Their reliability or competitiveness in the labour market
- The period for which they are likely to remain in employment
The assessment may compare the income the person would probably have earned without the injury with their expected earnings after the injury. Age, qualifications, employment history, career plans, medical prognosis and likely retirement age may all be relevant.
Where future loss cannot be calculated precisely, it may be assessed using assumptions supported by the available evidence. Any amount for future economic loss is generally adjusted to reflect contingencies and the fact that it is being paid as a present lump sum.
Loss of Superannuation
If an injury results in past or future loss of earnings, it may also result in lost employer superannuation contributions.
Loss of superannuation is generally calculated by applying the relevant statutory or contribution rate to the associated economic loss. The calculation may need to account for changes in compulsory superannuation rates over the period covered by the claim.
This is a separate head of damage, but it depends on establishing the underlying loss of earnings or earning capacity. A person will not necessarily have a claim for loss of superannuation merely because they sustained an injury.
Special Damages: Past and Future Expenses
Special damages compensate for reasonable expenses incurred, or likely to be incurred, because of the injury. These amounts are generally supported by invoices, receipts, treatment records, expert recommendations or other evidence.
Past special damages may include:
- Medical and specialist appointments
- Hospital and pharmaceutical expenses
- Physiotherapy, psychology or other treatment
- Rehabilitation costs
- Travel associated with treatment
- Medical aids or equipment
- Reasonable home or vehicle modifications
Future special damages may include treatment, medication, rehabilitation, equipment or assistance that medical expert evidence indicates will probably be required.
The amount claimed may be affected by expenses already paid by WorkCover Queensland, a CTP insurer, Medicare, private health insurance or another organisation. Repayment or reimbursement obligations may also need to be accounted for when the claim resolves.
Past and Future Care, Including Gratuitous Care
An injury may affect a person’s ability to manage household tasks, personal care, transport, property maintenance or other everyday activities. A claim may therefore include the reasonable cost of necessary past or future care.
Care can include paid services provided by a professional or unpaid assistance provided by a family member or friend. Unpaid assistance is commonly described as gratuitous care. Claims for gratuitous care are sometimes referred to as Griffiths v Kerkemeyer claims.
Relevant considerations may include:
- The type of assistance required
- Whether the need was caused by the injury
- How many hours of assistance were provided
- How long the assistance was, or will be, required
- Whether the services were reasonable and necessary
- The appropriate commercial rate for comparable services
The right to recover care costs is subject to legislative requirements and differs between claim types. Thresholds may apply to gratuitous care in public liability and motor accident claims. Workplace common law claims are subject to separate restrictions, and care provided free of charge may not be recoverable in the same way.
For this reason, past and future care should be assessed according to the legislation governing the particular claim, rather than assuming all assistance provided by family or friends can be included.
Interest on Past Losses
Interest may be available on certain past monetary losses to account for the time between when the loss was incurred and when damages are assessed.
It may apply to amounts such as past medical expenses or other eligible past financial losses. Interest is not applied to the entire common law payout. Under Queensland legislation, a court cannot award interest on general damages or damages for gratuitous services provided to an injured person.
The applicable rate and calculation will depend on the type of services being claimed and the period over which it was incurred.
Who Can Make a Common Law Claim for Damages?
The eligibility criteria depend on how and where the injury occurred. To bring a successful common law claim, an injured person must generally establish that:
- Another party owed them a duty of care
- That party breached its duty or was otherwise negligent
- The breach caused or contributed to the injury
- The injury resulted in compensable loss, supported by medical evidence and other relevant material
Contributory negligence may also affect a legal claim. This occurs where the injured person’s own failure to take reasonable care contributed to the incident. Depending on the circumstances, the amount of damages may be reduced.
For work accidents, you will generally need to lodge an application for statutory workers’ compensation and receive a Notice of Assessment before proceeding with a claim for damages. The applicable pathway may depend on the result of your permanent impairment assessment and other circumstances.
Not sure if you’re eligible? Our team at L&H Injury Lawyers offers obligation-free initial consultations to assess your claim’s eligibility and provide advice on moving forward with your claim.
Car Accident Common Law Claims
If you’ve been injured in a car or road accident in Queensland and weren’t at fault, or were only partially at fault, you may be entitled to seek compensation through a common law claim. This type of claim allows you to pursue a lump sum compensation payment for your injuries including your past and future lost income, pain and suffering as well as past and future care needs, depending on your individual circumstances.
To succeed with a car accident common law claim, you’ll need to prove:
- Another party, often the other driver, was negligent or failed to take reasonable care
- That their actions, or inaction, directly caused your injuries and losses
- That as a result of the other party’s negligence you suffered loss, such as an injury and consequential financial loss.
The claim is generally made against the Compulsory Third Party (CTP) insurer of the at-fault vehicle or motorbike. If the claim succeeds, the CTP insurer will fund the agreed settlement or damages awarded.
At L&H Injury Lawyers, we can help you gather and present the relevant evidence, seek an early decision from the insurer about liability and pursue funding for reasonable treatment expenses where available. We understand how overwhelming the aftermath of a car accident can be, and we’re here to guide you through the process.
Workers’ Compensation and Common Law Claims, QLD
If you have been injured at work in Queensland and your employer’s negligence played a role, you may be eligible to pursue a common law claim in addition to your statutory workers’ compensation claim. While statutory benefits through WorkCover Queensland or a self-insurer may cover medical costs, rehabilitation expenses and weekly compensation, a common law claim allows an injured worker to seek damages for the broader and ongoing effect of the injury.
To bring a successful WorkCover common law claim, the injured worker must generally establish that:
- The employer owed the worker a duty of care
- The employer failed to take reasonable precautions against a foreseeable risk
- The employer did not provide a safe system of work, properly maintained machinery or equipment, or appropriate training and supervision
- The breach caused or contributed to the worker’s physical or psychiatric injuries
- The worker suffered loss as a result
Workplace negligence may involve unsafe working conditions, inadequate training or supervision, faulty equipment or a failure to respond to a known hazard. A claim may also arise where a workplace incident was caused by the conduct of a fellow employee for whom the employer is legally responsible.
Injury claims require compelling medical evidence connecting the diagnosed condition with the workplace incident and the alleged negligence. Medical reports, employment records, witness statements and other evidence may be needed to establish both liability and the effect of the injury.
A permanent impairment assessment may also form part of the statutory claim process. For psychiatric or psychological injuries, the degree of permanent impairment is assessed by a Medical Assessment Tribunal. Physical injuries are generally assessed by an appropriately qualified doctor, although some disputes or referrals may also be determined by a tribunal. The assessment can affect the worker’s statutory lump sum offer and pathway to common law damages.
There are strict time limits under the Queensland workers’ compensation scheme. Seek independent legal advice early so your eligibility, evidence and applicable deadlines can be assessed.
Public Liability Common Law Claims
If you’ve been injured in a public liability incident in Queensland and someone else’s negligence played a role, you may be entitled to seek compensation through a common law claim. This allows you to pursue a lump sum compensation payment for your injuries including your past and future lost income, pain and suffering as well as past and future care needs.
To succeed in a public liability common law claim, you must be able to prove the following:
- Another party owed you a duty of care
- That party was negligent or failed to take reasonable care
- Their actions or inaction directly caused your injuries and losses, and
- As a result of that negligence, you suffered harm (such as a physical or psychological injury) along with consequential financial loss.
While public liability claims are often associated with accidents in public places, they can also arise in workplace settings, particularly where someone other than your employer is at fault. For example, a host employer, subcontractor or third party on site may owe you a duty of care. If their negligence caused your injury, a public liability claim may be available in addition to any workers’ compensation entitlements.
How the Heads of Damage Differ by Claim Type
The same broad heads of damage in personal injury law can arise in motor vehicle, workplace and public liability claims. However, the legislation governing each claim can affect how damages are assessed and what may be recovered.
Motor Vehicle Accident Claims
Motor vehicle accident claims are generally made against the CTP insurer of the at-fault vehicle. Damages may include general damages, economic loss, treatment expenses, loss of superannuation and qualifying care.
The claim must comply with Queensland’s compulsory third party insurance legislation and pre-court procedures. National injury insurance arrangements may also affect the treatment, care and support damages available to people who sustain eligible serious personal injuries.
Workplace Common Law Claims
A workplace common law claim generally requires the worker to prove that their employer’s negligence caused or contributed to the injury.
The Workers’ Compensation and Rehabilitation Act 2003 (Qld) contains specific rules governing general damages, economic loss, care and the interaction between statutory compensation and common law damages. Statutory payments already received may need to be accounted for when the common law claim is resolved.
Public Liability Claims
Public liability claims may arise from injuries on public or private property or in other circumstances where a person or organisation failed to take reasonable care.
These claims are generally subject to the Personal Injuries Proceedings Act 2002 (Qld) and relevant provisions of the Civil Liability Act 2003 (Qld). The available damages depend on the injury, its effect and the evidence supporting each loss.
As everyone’s circumstances are different, the value of a claim cannot be determined solely by comparing it with another person’s payout.
TPD and Common Law: What’s the Difference?
Total and Permanent Disability (TPD) claims are typically made through your superannuation fund and are based on insurance policies, not negligence. So, unlike a common law claim, you don’t have to prove someone else was at fault.
However, if your injury or illness preventing you from returning to work was caused by someone else’s negligence, like a serious car crash or unsafe work conditions, you might also have grounds to make a common law personal injury claim alongside a permanent impairment claim.
Here’s how they differ:
- TPD claims are assessed by insurers under your super fund policy.
- Common law claims require you to prove fault or negligence and are made against the responsible party, e.g. an employer or driver.
- You may be able to claim both, depending on the circumstances.
If you’re unsure which type of claim you’re eligible for or whether you can make both, it’s important to speak with a lawyer. At L&H Injury Lawyers, we’ll help you understand how the laws surrounding statutory claims, common law rights and TPD benefits interact, so you can make an informed decision.
The Common Law Claim Process
Once eligibility is established, the common law process generally involves the following steps.
NOTICE OF CLAIM
The claimant gives the relevant insurer or at-fault party formal notice of the legal claim. Different forms and notice periods apply to workplace, motor vehicle and public liability claims.
EVIDENCE GATHERING AND ASSESSMENT
Medical records, medical reports, expert assessments, witness statements, employment records and income documentation may be collected to support the claim. The available evidence must establish the injury, negligence and resulting loss.
NEGOTIATION AND COMPULSORY CONFERENCE
The parties generally exchange relevant material and participate in settlement negotiations. Depending on the type of claim, a compulsory conference may be required before the claimant can start legal proceedings. This gives the parties an opportunity to resolve the matter without a trial.
SETTLEMENT OR LEGAL PROCEEDINGS
If the claim resolves through negotiation, the parties generally document a final settlement. If no agreement is reached and the matter proceeds, it may be necessary to start legal proceedings before the applicable limitation period expires. Further opportunities to negotiate may remain available after court proceedings begin.
For Queensland workers’ compensation damages claims, motor vehicle accident claims and public liability claims, a compulsory conference ordinarily occurs before proceedings commence. If the claim does not settle at that conference, the parties must generally exchange written final offers.
Throughout the process, our experienced personal injury lawyers are by your side, ensuring your claim is managed thoroughly and respectfully.
How We Can Help
At L&H Injury Lawyers, we know how tough it can be to face legal decisions while recovering from an injury. We bring together local knowledge, compassion and experience to guide you through every stage of your claim.
- We offer obligation-free initial consultations
- We work on a no win, no fee basis
- We handle all communication with insurers and other parties
- We focus on achieving the best possible outcome for you
Whether you’re just starting a workers’ compensation claim, trying to understand your statutory claim or ready to pursue a common law claim, we’re here to help.
Get in Touch Today
If you’ve been injured and believe someone else was responsible, don’t wait. Contact L&H Injury Lawyers on the Sunshine Coast today for clear advice and caring support.
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Common Law Compensation Claims FAQs
What can I claim through common law?
The damages available depend on the type of claim, the effect of the injury and the supporting evidence. A common law damages claim may include general damages, past and future economic loss, loss of superannuation, medical and rehabilitation expenses and qualifying care costs.
Each applicable head of damage is assessed separately before the amounts are combined as part of the overall claim.
What is an average common law claim worth?
Common law claim payouts in Queensland vary according to the type and severity of the injury, the injured person’s age, the available evidence and the effect of the injury on their life and work. No two claims are exactly the same, so an average payout is unlikely to provide a reliable indication of what an individual claim may be worth.
The overall amount may include general damages for pain and suffering, past and future economic loss, medical expenses, loss of superannuation and qualifying care costs. L&H Injury Lawyers can assess and pursue the compensation available in your circumstances.
How Are General Damages Calculated?
General damages in many Queensland personal injury claims are calculated by assessing an Injury Scale Value, or ISV. The ISV reflects the severity and impact of the injury on a scale from zero to 100.
The ISV is then converted into a monetary amount under the table or formula applicable to the claim and date of injury. This calculation addresses pain, suffering and loss of amenities only. Other losses, including lost earnings, medical expenses and care, are assessed separately.
How Are Personal Injury Payouts Calculated?
Personal injury payouts are calculated by assessing each applicable head of damage. These may include general damages, past and future economic loss, loss of superannuation, special damages and qualifying care costs.
The amounts are based on the evidence and the individual effect of the injury. Payments already received, contributory negligence, repayment obligations and other legal adjustments may affect the final settlement amount.
There is no standard formula that produces the same payout for every person with a similar injury therefore it is important that you seek advice from an experienced personal injury lawyer.
How Much Compensation Can You Receive for Pain and Suffering in Queensland?
The amount of compensation for pain and suffering in Queensland depends on the nature and severity of the injury, the applicable ISV range and the legislation governing the claim.
Factors such as ongoing symptoms, treatment, prognosis, permanent impairment and loss of enjoyment of life may influence the assessment. It is not possible to determine the amount from the injury’s name alone, and pain and suffering compensation forms only one part of the overall common law claim.
Who funds common law payouts?
In Queensland, common law payouts are generally funded by insurers, not by the individuals or organisations directly involved.
For example, when it comes to work-related injuries, statutory compensation is usually paid by your employer’s workers’ compensation insurer, most often WorkCover Queensland. If your injury was caused by employer negligence or a breach of statutory duty, you may be entitled to a lump sum compensation payment through a common law claim. This is in addition to any initial benefits you may have received under your statutory claim and is also paid by your employer’s workers’ compensation insurer. In some work accident scenarios, if your injury was caused by the negligence of a host employer or another subcontractor on site (rather than your direct employer), a separate public liability claim may be available, which would be handled by that party’s liability insurer.
In motor vehicle accidents, the Compulsory Third Party (CTP) insurer of the at-fault vehicle will generally respond to the claim. These claims usually require evidence that another road user failed to take reasonable care and that this negligence caused or contributed to your injuries and losses.
For incidents in public spaces or private premises, a claim may be made against the responsible party and handled by their public liability insurer. Liability must still be established before compensation becomes payable.
While most common law claims are resolved through negotiation, in some cases, disputes may need to be resolved through the court system. At L&H Injury Lawyers, our experienced personal injury team will guide you every step of the way to pursue an appropriate outcome based on the evidence.
How long does a common law claim take to resolve?
As a general guide, common law claim payouts in QLD may take approximately 15 to 24 months from the date of the injury to resolve. However, the timeframe varies depending on the complexity of the claim, how long the injury takes to stabilise, whether liability is disputed and whether the matter can be resolved through negotiation or requires court proceedings.
At L&H Injury Lawyers, we aim to progress each claim efficiently while allowing sufficient time to assess the injury and supporting evidence properly. We’ll keep you informed throughout the process and work to minimise avoidable delays.
Do I have to attend court proceedings?
Most common law claims resolve without proceeding to trial. The parties may negotiate throughout the pre-court process, and further opportunities to settle remain available after court proceedings begin.
If court proceedings become necessary, L&H Injury Lawyers can explain what is required, prepare the matter and represent your interests throughout the process.
Are there time limits for a common law damages claim?
Strict time limits apply to common law claims in Queensland. Generally, you must:
For work accident claims:
- Lodge your statutory claim within 6 months from when you first consulted a health care practitioner about the injury. However, it’s recommended that you do so as soon as possible after the injury occurs as you will only be back paid for 20 business days.
- Begin your common law claim within three years from the date the negligence occurred that caused your injury.
- These timeframes can be complex and at risk of expiring, in situations where your injury occurred over a period of time rather than a specific date, so it is important to seek legal advice early.
For road accident and public liability claims:
- Lodge your initial claim forms within 9 months of the accident (although extensions may be granted where a reasonable explanation for the delay is provided). For claims where the at fault motor vehicle cannot be identified if you do not serve your initial claim form on the Nominal Defendant within 9 months from the date of the accident you will not be able to bring a claim. You must also conduct investigations to try and identify the vehicle at fault. It is therefore important that you seek legal advice immediately after an accident.
- If your claim is not resolved through early negotiation, formal court proceedings must be commenced within 3 years of the injury date.
Missing a deadline can result in your claim being “statute barred”, meaning you lose the legal right to pursue compensation. That’s why it’s so important to seek legal advice as early as possible, even if you’re still recovering or unsure about your claim.
