The principles relating to common law claims for negligence are set out in ‘Establishing liability’ in ‘Negligence, liability and damages‘). Such proceedings can be issued where an injury or death results from the negligence of another party in a transport accident.
Where there is a claim for damages sustained in a motor vehicle accident and the owner or negligent driver is known but cannot be found, there are special arrangements. Also, where the vehicle and owner or negligent driver involved is unidentified or uninsured, claims can be commenced against the TAC.
Restrictions on common law proceedings
There are severe limitations at common law on the right to issue proceedings for damages against a negligent party. If a person dies in a transport accident, common law dependency compensation proceedings can only be brought by a person who is a dependent of the person killed. The claim is limited to the extent of the lost financial dependency, and the no-fault dependency benefits are taken into account.
However, a person who suffers nervous shock as a result of another person’s death might be entitled to common law compensation, in the same way as any person injured in a transport accident. The person must first lodge a claim for injury with the TAC.
A person injured in a transport accident is forbidden from receiving common law compensation unless they have a serious injury. There are three ways that an injury may be recognised as a serious injury:
- an assessment of 30 per cent or more whole person impairment (see ‘Benefits payable’ in ‘Transport Accident Commission (TAC)‘) is deemed to be a serious injury;
- even if the injury is less than 30 per cent whole person impairment, the injury may be a serious injury if the TAC agrees; or
- even if the TAC does not agree, the injury may be a serious injury if a court agrees.
A serious injury is a serious long-term impairment or loss of a body function, permanent serious disfigurement, severe long-term mental or behav-ioural disturbance or disorder, or the loss of a foetus.
A court will only award damages by way of loss of earnings, or loss of earning capacity, if the loss is between $59 150 and $1 331 890. A court also must not award damages for pain and suffering for less than $59 150 or more than $591 910. Damages to be awarded on the death of a person are restricted to a maximum of $969 530.
If a person is successful in common law proceedings, any further benefits under the TA Act other than continuing medical and like expenses cannot be received.
Generally, an injured person or dependant must repay all benefits to the TAC out of the damages, except for loss of earnings benefits and medical and like expenses. There are also restrictions on the legal costs of the proceedings. Legal costs will not be paid if the amount of damages does not exceed the threshold amounts.
If you believe that you may be entitled to claim damages at common law for injuries in a transport accident or accident involving a motor car, you should seek legal advice (see Chapter 2.4: Legal services that can help).