The principles relating to (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. claims for An act that breaches a duty to take reasonable care and results in loss or damage to another person. See also tort. are set out in Chapter 10.1: Negligence and injury (see ‘Establishing liability’). Such proceedings can be issued where an injury or death results from the negligence of another A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. in a transport accident.
Where there is a claim for A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special 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 Injury as a result of a car accident or other transport accident that causes serious long-term damage. Includes losing an arm, a leg, or bodily functions, suffering continuing mental or behavioural disturbances, or, for a pregnant woman, losing the baby.. 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’, above) is Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. 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 An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. 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 A document that sets out what a person wants to happen to their money and other property after they die. only (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. damages by way of loss of earnings, or loss of earning The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult., if the loss is between $56 960 and $1 282 520. A court also must not award damages for pain and suffering for less than $56 960 or more than $569 970. Damages to be awarded on the death of a person are restricted to a maximum of $933 590.
If a person is successful in common law proceedings, any further benefits under the TA A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity 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).