When someone suffers harm due to another party’s actions—particularly in a healthcare setting—it’s natural to seek answers, accountability, and, in some cases, compensation. One pathway to pursue this is through a common law claim for damages. While it may sound complex, understanding how these claims work is important for anyone who has experienced loss or injury as a result of medical care.
In this blog, we’ll break down what common law claims are, how they relate to medical negligence, and what you might expect if you’re considering seeking common law damages.
What is a Common Law Claim?
A common law claim is a legal action taken by an individual who has suffered harm due to another party’s wrongdoing or negligence. These claims fall under the civil justice system and are based on legal precedents rather than written laws alone. In the context of personal injury or medical cases, a common law claim typically seeks compensation—or damages—to cover the harm suffered.
This process differs from statutory compensation schemes, which might offer fixed benefits without proving fault. In a common law claim, the injured party must usually show that their injury was caused by someone else’s failure to exercise reasonable care.
How Does It Relate to Medical Negligence?
Medical negligence occurs when a healthcare provider—such as a doctor, nurse, or hospital—fails to meet the standard of care expected in their profession, resulting in injury or harm to a patient. Not every medical error is legally considered negligence, but when it leads to a serious and avoidable outcome, a common law claim may be appropriate.
Examples of situations where a medical negligence claim might arise include:
- Misdiagnosis or delayed diagnosis
- Surgical errors
- Medication errors
- Failure to inform a patient of risks associated with treatment
- Inadequate follow-up or aftercare
If you or a loved one has suffered as a result of substandard medical care, pursuing a common law claim for damages can be a way to seek compensation for the impact it has had on your life.
What is Possible to be Claimed for?
In a successful common law claim, compensation—referred to as damages—may be awarded to cover a range of financial and non-financial losses, including:
- Medical costs (past and future)
- Loss of earnings or earning capacity
- Pain & suffering
- Loss of enjoyment of life
- Domestic or personal care expenses
The amount of compensation may vary based on the specific circumstances, including the severity of the injury, the degree of impact on daily life, and the financial losses incurred.
What Must Be Proven in a Common Law Claim?
To succeed in a common law claim involving medical negligence, several elements must be established.
Duty of Care
We need to show that the medical professional or facility owed you a legal duty of care. In most cases, this duty is clear—healthcare providers have a responsibility to deliver safe, competent care to their patients.
Breach of Duty
It must be demonstrated that the provider breached this duty by failing to act in accordance with accepted medical standards.
Causation
There needs to be a clear link between the breach of duty and the injury or harm suffered. This is often one of the most complex aspects of a medical negligence case.
Loss or Damage
You must show that the injury resulted in some form of loss—whether physical, psychological, or financial—for which you are now seeking compensation.
Time Limits for Common Law Claims
In Australia, there are time limits for bringing a common law claim, including those related to medical negligence. In most states and territories, legal proceedings must be commenced within three years of the date you knew, or ought to have known, that you suffered harm due to negligence.
In some cases—such as where the injury involves a minor or someone with a disability—this time frame may be extended. It’s important to seek legal advice as soon as possible, as delays could affect your ability to bring a claim.
Settlements vs Going to Court
Many common law claims are resolved through settlement before going to trial. A settlement allows both parties to agree on an amount of compensation without a court ruling. This can save time, reduce stress, and avoid the unpredictability of a trial.
However, if a fair resolution can’t be reached, your legal team may advise proceeding to court. In that case, a judge will review the evidence and determine the outcome.
Regardless of the path, having legal representation throughout the process can help you understand your rights and make informed decisions about your next steps.
The Role of Legal Support
If you’re considering a common law claim for damages, particularly involving medical negligence, it’s important to consult a law firm with experience in this area. The legal process can be detailed and requires a clear understanding of healthcare standards and personal injury law.
A legal professional will typically:
- Assess the strength of your claim.
- Advise you on time limits and procedures.
- Gather supporting evidence and expert opinions.
- Manage negotiations and communications.
- Represent you in court if needed.
The right guidance can make a difference in how the process runs and whether a fair outcome is achieved.
When to Consider Legal Action
Every case is personal. You may be wondering if what happened to you qualifies as medical negligence or whether pursuing a common law claim is the right step. Some signs that you might want to explore legal advice include:
- Ongoing complications or permanent damage from medical treatment.
- Lack of clear explanation or response from your healthcare provider.
- Financial strain due to medical costs or time off work.
- Emotional distress caused by a medical experience.
If these situations feel familiar, it might be time to have a confidential conversation with a legal professional.
Book a Confidential Consultation with Our Legal Team
At Blumers, we work closely with individuals navigating the effects of medical negligence. Our team supports clients through common law claims, helping them understand their options and the process of pursuing common law damages.
If you believe you’ve been affected by medical negligence, or you simply want to explore whether a common law claim might be appropriate, we’re here to guide you. Get in touch with us!