When you are injured because of someone else’s negligent actions or omissions a claim can be commenced against the at fault party provided certain legal criteria can be met. We commonly refer to these types of claims as common law claims or you might know them as negligence claims.
When making a common law claim there are two main considerations; one being liability and the other quantum. To put it simply liability refers to who is at fault and quantum is about damages or how much you will be paid. There needs to be an at fault party in order for you to claim damages. You are not entitled to damages unless you can prove liability. Of course the legal hurdles and tests that need to be determined in order to prove both liability and quantum are complex and technical and that is why it is important to have the assistance of an appropriately specialised compensation lawyer if making a common law claim.
While we distinguish the types of claims under headings such as motor vehicle accidents, work accidents, public liability, medical negligence by way of example the general principles of liability and quantum apply.
Liability
In order for your claim to be successful the following needs to be established by the evidence:
1. There was a duty of care
2. There was a breach of that duty
3. There was damage occasioned by the breach (causation);
4. Foreseeability (remoteness) of damages.
A common law duty of care arises only in relation to the injury complained of by the plaintiff, and is established by reference to the “neighbour principle”. The neighbour principle involves a consideration of the relationship between the plaintiff and the defendant and of whether injury to the plaintiff is reasonably foreseeable by the defendant as a consequence of the defendant’s conduct within that relationship.
Work Injuries
The duty to you as a worker is created under common law principles of negligence, by statute and/or by contract, a contract of employment being the most common (of which Common Law duty of care obligations are implied).
It is well established law that an employer owes a duty of care to its employees. Further, that duty is a non-delegable duty of care. What this means is that the employer can not offload the duty to others. This special duty imposes a higher standard of care and requires the person owing the non-delegable duty of care not only to exercise reasonable care for the functions it carries out itself, but also to ensure that reasonable skill and care are taken in relation to those functions it leaves to others (such as independent contractors or its other employees) to carry out for it. In fact an employer will be vicariously liable for the negligent acts and omissions of its employees.
Generally, the duty of an employer is to provide a safe system of work and to take the necessary steps to prevent injury or harm. More specifically, the employer’s duty is to ensure that their safety policies and procedures reduce or minimise risk to an acceptable level, that their machinery and equipment is working properly and is compliant with all safety standards and that staff are fully functioning and fully trained. All this can be summarised as a safe system of work. Further, the employer has a duty not only to have safety policies and procedures in place but to enforce them.
The Process
The Claim Process
Investigation and Disclosure
Compulsory Conference
Calculating a Claim
How We Charge – No Win, No Fee
Commonly Asked Questions
How to Make a Worker’s Compensation Claim
Making a Claim if injured on your way to and from work?
How long will it take for the Insurer to decide my claim?
How is a Claim decided by the Insurer?
My Claim has been rejected. What can I do?
Paying for medical treatment when your clam hasn’t been decided
Paying for travel costs associated with your injury
Will I have to do rehabilitation?
I have received a Notice of Assessment, what should I do?
What should I do if I’ve received a lump sum offer?