What’s the difference between a statutory scheme and common law damages? Without launching into a discussion of legislation or case law, the key difference is actually a little more basic. It all comes down to this: Why should someone else pay for the injured person’s losses and rehabilitation?
Common law ‘torts’
Historically, a claim could be brought against someone else if there was a wrong committed, and in common law we use the French word ‘tort’. The common law has long supported that damages should be paid in cases where there was a personal tort, such as an assault, or other purposeful act that caused an injury to someone else.
Before the British case of Donoghue v Stevenson (the Paisley snail in the ginger beer bottle case), negligence cases did not exist per se and could only be brought as a breach of contract.
The law of negligence now creates causes of action forcing the wrong-doer to try to put the injured party back to where they were before the injury, as best as money can achieve. A case will only be successful where the harm suffered was foreseeable, and that reasonable measures taken would have avoided the injuries, losses and damages. This provides the opportunity for injured people to make a claim to compensate them – that is, try to put them back to where they were before their injury.
Where there is no such cause of action, there may still be the opportunity to claim some basic benefits. This exists through statutory schemes. These schemes often provide assistance where nobody is at fault. A common example of this is workers compensation, where an injured worker can receive funded rehabilitation, wage support while rehabilitating and, if there is a permanent impairment, some sort of token sum for such loss of function.
Sometimes, multiple schemes may apply. When somebody is injured in a motor vehicle accident while on a work journey, they may be entitled to no-fault compensation through the workers compensation scheme. This will apply even if they are at fault (subject to a few exclusions such as serious and wilful misconduct e.g. drink driving). If another party was at fault having caused the accident, then the worker will have their immediate wages and rehabilitation covered and then subsequently make a claim for common law compensation which usually finalises the claim where the victim gets a lump sum and the employer’s insurer is repaid for the rehabilitation expenses that they covered.
This may also apply in labour-hire situations, or where the at-fault party is another contractor at a worksite, (e.g. another contractor on a building site leaves a pit open and unmarked, causing an injury), or service provider in a business (e.g. a cleaning contractor failing to clean a hazardous mess causing a slip).
Working out which scheme and the basis on which there can be cover can be complex. We are experts at this and we often find the injured party has a lot more options than they originally thought.
At Blumers we regularly discuss new and continuing claims among our solicitors and paralegals to ensure we have investigated all possible avenues to assist our clients in getting back on their feet. Call Blumers today on 6208 2600.