Your right to sue for personal injury in Queensland

If you have suffered personal injury and loss due to the negligence of another person or entity, you may have an entitlement to sue for common law damages to recover compensation for the injuries sustained. In Queensland, common law claims can be pursued as a result of:

• a workplace injury;
• a motor vehicle accident;
• medical negligence;
• injuries in a public place (public liability claims); and

It is important to understand that different legal frameworks apply depending on the circumstances of your accident, and important time limits apply.

What is a common law claim?

A common law claim is a litigation process where you can claim compensation for damages and loss incurred due to negligence. If you cannot establish negligence against the person or entity responsible for your injuries, you will unlikely be successful in a common law claim.

Establishing negligence is entirely dependent on the individual circumstances which caused your injury.

To establish negligence, generally speaking, you must establish that the person or entity that injured you owed you a duty of care and that their acts or omissions breached that duty of care.

In Queensland, you are owed a duty of care in a broad range of circumstances, including but not limited to:

• whilst carrying out your employment duties;
• when you are a pedestrian or cyclist, as well as a driver or passenger in a vehicle;
• when engaging a health practitioner;
• whilst undertaking activities in a public place, for example, shopping centres, restaurants, rental and holiday accommodations, schools, parks and reserves etc.

What compensation can I recover in a common law claim?

When pursuing a common law claim, there are different types of compensation you can claim for, which are referred to as heads of damage. The main heads of damage you can claim for include:

• pain and suffering known as general damages;
• economic loss from the date of injury and possibly ongoing into the future;
• loss of superannuation from the date of injury and possibly ongoing into the future;
• medical treatment, rehabilitation and travel expenses arising as a result of the injuries you sustained and may continue to incur into the future;
• paid or unpaid care, often referred to as gratuitous care, provided to you since the date of injury and possibly ongoing into the future.

The amount of compensation payable in a common law claim varies greatly and depends on a number of factors unique to your specific injury.

Will I need to go to court if I commence a common law claim?

Only a very small portion of personal injury common law proceedings result in a trial.

In Queensland, before you can attend court for a common law claim, there are different pre-court processes which apply depending on the circumstances of your injury.

Workers’ compensation common law claims

If you are injured at work, your claim will be governed by the Workers’ Compensation and Rehabilitation Act 2003. This legislation outlines the process you must follow before you can pursue a common law claim. To be able to pursue a common law claim for a workplace injury, you must have:

1. an accepted workers’ compensation claim with WorkCover or your employer’s self-insurer; and
2. received a Notice of Assessment.

Once you have satisfied these two key criteria, you may commence a common law claim by lodging a notice of claim for damages and completing the pre-court processes.

Motor vehicle accident common law claims

If you are injured by a motor vehicle, your claim will be governed by the Motor Accident Insurance Act 1994. To be able to commence a common law claim, you must:

1. obtain a CTP medical certificate from your treating doctor; and
2. lodge a complying notice with the insurer, which informs the insurer of your intent to pursue a claim for damages.

Medical negligence, public liability and abuse compensation claims

If you are injured in circumstances that are not work-related or vehicle-related, your claim will be governed by the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003 (Qld).

To pursue a common law claim, you must first serve a complying part 1 notice of claim on the at-fault person or entity within the required timeframes as well as complete the pre-court process.

A key requirement of all the pre-court processes is for the parties to participate in a compulsory conference, for the purposes of seeking to settle your claim without the need for commencing court proceedings. If you do not settle your claim at the compulsory conference, you will then be required to commence proceedings in court.

How long does a common law claim take?

The length of time for a common law claim is entirely dependent on the individual circumstances for each claim. There are several factors that influence the length of time to resolve a common law claim, including:

• the injury you sustained and the severity of the injury (every injury is different, and although many injuries will start to stabilise in the months following an injury, some will take much longer);
• the circumstances giving rise to your injury (depending on which legislation governs your claim, different timeframes for pre-court processes apply);
• whether a settlement can be agreed upon or whether your matter has to proceed to trial.

Time limits for making a common law claim in Queensland

It is important to note that there are different timeframes applicable depending on the circumstances of your personal injury.

In Queensland, you generally have three (3) years from the date on which a cause of action arises to commence a claim. This is referred to as a limitation period. If you fail to protect your limitation period prior to its expiry,  You may lose your right to claim compensation for your injury.

Limitation periods can be complex. It is highly recommended you seek legal advice as soon as possible after your injury if you intend to seek common law compensation.

Get help from a personal injury lawyer

If you have been injured due to the fault of another person, it is recommended you seek legal advice to understand your rights and entitlements in relation to a common law claim.

Our personal injury lawyers are highly experienced in progressing common law claims. We will ensure we maximise any of your compensation entitlements, while you concentrate on health and wellbeing.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au