Common law damages are compensation provided following a common law claim. This compensation is granted under the circumstances where an employer is determined to have violated their duty of care towards a worker, resulting in an injury that causes loss to the worker.
The disbursement of common law damages takes place upon reaching a settlement, which may be achieved through negotiations or court proceedings.
What makes up common law damages?
Pain and suffering:
The amount of damages given for pain and suffering is formally defined in the legislation depending on the type and severity of the injury.
Past and future wages or economic loss
You may be paid this type of damages if you've lost income because of your injury, or if this might happen in the future.
Your payment may also consider employer funded superannuation contributions.
Calculations can be based on lost wages up to retirement age.
This type of loss can include:
- not being able to work
- having to work in a role with a lower salary
- not being able to do full hours
- not being able to do overtime.
Even if you're able to go back to work in your pre-injury role without loss of income, you may still be entitled to a ‘global amount’ for any problems you might have in getting another job in the future.
Sometimes, you might be able to go back to work in your pre-injury role, but not permanently. If a doctor has indicated this is the case, common law damages could include an amount for loss of income for some years up to retirement.
Past and future medical costs
If you're assessed as requiring ongoing medical treatment, your past and future medical costs will be included in your damages claim.
This may include:
- future surgery
- medically recommended therapies
- pharmaceutical items (such as pain medication)
- travelling expenses
- in some cases only: past or future paid care.
Calculating Common Law Damages: What You Should Know: When determining the amount of common law damages, several factors come into play, including:
- Remaining Working Years: This considers your age and retirement age to estimate your likely working years.
- Employment Availability: This is based on your current employment status and the availability of similar work in your area.
- Degree of Impairment: This is assessed through independent medical examinations and reports.
- Income: Your past and current work history, along with tax and financial documents, are considered.
- Expense Costs: This includes medical records, independent medical examinations and reports, Medicare and Pharmaceutical Benefits Scheme (PBS) records, as well as tax invoices and receipts for expenses.
- Legal Costs: Depending on the degree of permanent impairment, you may also receive legal costs based on legislation.
Upon determining the common law damages amount, we need to assess any outstanding debts to other organizations. We are legally obligated to obtain notices from Services Australia, including Medicare, Centrelink, Child Support Agency (CSA), and, if applicable, a charge from the National Disability Insurance Agency. Once any deductions are made, your lawyer's fees will be subtracted from the damages paid to you.
To release your payment, a signed form is required from you. By signing, you acknowledge that you won't seek additional compensation from WorkCover or your employer for this work-related injury, and you agree to keep the settlement details confidential. Your lawyer will guide you through the details of the form before you sign it, and the settlement can then be paid to your lawyer's trust account on your behalf.