A common law claim is a legal claim for compensation based on proving another party's negligence caused your injury or loss. Unlike a statutory claim which pays set benefits regardless of fault, a common law claim requires you to prove someone else was to blame. If successful, common law claims, typically deliver significantly higher compensation than statutory benefits alone.
What’s the difference between a car accident insurance claim and a common law claim?
A common law claim allows you to seek additional compensation if another party’s negligence caused the accident. Common law claims generally provide more substantial compensation, including damages for pain and suffering and loss of future earnings.
A standard insurance claim typically provides benefits for anyone injured in a motor vehicle accident, regardless of who was at fault. Each state-based road authority covers medical expenses, rehabilitation costs, lost income, and support services, but it generally doesn’t compensate individuals for pain and suffering or long-term financial losses.
Examples of common law claims
Common law payouts are usually significantly higher than statutory claims.
Examples of common law claim payouts include:
- 21-year-old man sustained serious injuries after a collision in a small suburban street, leading to an out-of-court settlement of $908,236.
- Person acquired brain injury, resulting in common law damages for pain and suffering and economic loss totalling $660,000.
- A pedestrian was hit by a car and sustained injuries requiring a hip replacement. They received $200,000 in common law damages for pain and suffering, along with an impairment benefit of $22,370.
Types of injuries
To make a common law claim, your injury needs to be considered a “serious” injury. This can include long-term impairment, loss of a bodily function, long-term disfigurement or severe long-term mental health issues.
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Who governs the road authority for my state?
When you make a statutory claim, you’ll need to go through the governing road authority for your state.
- Victoria (VIC): Transport Accident Commission (TAC)
- New South Wales (NSW): State Insurance Regulatory Authority (SIRA)
- Queensland (QLD): Motor Accident Insurance Commission (MAIC)
- Western Australia (WA): Insurance Commission of Western Australia (ICWA)
- South Australia (SA): CTP Insurance Regulator
- Tasmania (TAS): Motor Accident Insurance Board (MAIB)
- Northern Territory (NT): Territory Insurance Office (TIO) / Motor Accidents Compensation Commission (MACC)
- Australian Capital Territory (ACT): Motor Accident Injuries Commission (MAIC)
Frequently asked questions
Common law claims are assessed based on the severity of your injury. You are eligible to make a claim if your injuries are considered above threshold to have a serious injury. This can include long-term impairment, loss of a bodily function, long-term disfigurement or severe long-term mental health issues.
Examples of serious injuries can be broken bones, head or brain injuries, nerve damage, soft-tissue ruptures, and injuries that have required surgery. You also must prove that someone else was at fault for causing the accident which led to your injury.
You are not legally required to have a lawyer for a common law claim, but it is strongly recommended. Common law claims require proving negligence, gathering expert medical evidence and navigating complex state-based legislation, application processes and court procedures. This can be complicated without getting advice from a lawyer.
In a common law claim you can seek compensation for past and future lost income (economic loss), medical and rehabilitation expenses, pain and suffering, and loss of superannuation. The compensation available depends on the circumstances of your injury and which state you are in.
Common law claims in Australia typically take between 12 months and 3 years to resolve depending on the complexity of your case and whether it settles before needing to go to court. Most claims are resolved through negotiation or mediation before reaching a court hearing. More complex cases involving disputed liability or multiple parties generally take longer.
In most Australian states the time limit for making a common law claim is 3 years from the date of your injury. In Victoria, the time limit is 6 years for work and road claims. Missing this deadline can mean losing your right to claim entirely, which is why getting legal advice as early as possible can be helpful. It’s important to know that time limits vary by state and claim type. For example, motor vehicle accident claims in New South Wales have different timeframes to workers compensation claims in Queensland. If you are unsure whether your time limit has passed, speak to a lawyer as soon as possible to discuss your options. There are also some circumstances where we can help you to still proceed with a claim if you have missed the time limit.