In Queensland, if you are injured in a car accident on your way to work (or from work) you might be able to claim common law damages. In this article we explain who is liable to pay you common law damages, and what are the components of the damages amount.

Who pays common law damages?

If you are in car accident on your way to work (or from work) then as a first step, you can immediately apply for workers’ compensation benefits. However, these benefits are restricted. Specifically, the workers’ compensation insurer would pay a percentage of your weekly wages and your necessary medical treatment costs. These payments are made weekly and only until you are fit enough to return to work. In most cases, you could not claim common law damages from the workers’ compensation insurer.

What you can do, however, is claim common law damages from the CTP insurer of the driver who caused the car accident in which you were injured. (Assuming that you were not the at fault driver.)

What is common law damages?

Common law damages means you get one lump sum amount that includes all income that you have lost or may lose in the future until retirement, all past and future medical costs, superannuation, pain and suffering and some additional benefits also.

Let’s look at these in more detail.

Loss of income includes past and future loss. Remember, WorkCover only pays 85% of income until you get back to work. This gets reduced to 75% after 26 weeks. The common law damages includes the top up to 100%.

Most importantly, common law damages also pays for any loss of wages you might incur in the future. For injured workers in a physically demanding role, this can be significant. We have acted for nurses, cleaners, aged care workers, police officers, abattoir workers who all had to deal with this same issue: technically they have the ability to return to work, but their normal work is so heavy that they have to find something lighter.

If you are in your 40s and have to change careers, that’s going to lead to a significant loss of income over 20 to 25 years before you retire. The only way to recover this loss is through common law damages.

Calculation of future income loss is a complex exercise. It is based on medical evidence and it also takes into account future wage rises, promotions, overtime, allowances and so forth.

On top of income loss, you also get to recover lost superannuation contributions.

In addition, you receive damages for pain and suffering. In Queensland, the dollar amount for pain and suffering is worked out by reference to the nature, severity and number of injuries suffered in the accident. This is a matter which we can advise on based on medical evidence.

Common law damages can also include an award for any future medical costs (for example the private patient cost of necessary future surgeries, hospital stays, rehabilitation). They also include the cost of necessary domestic assistance (for example lawn mowing, house maintenance) and other similar costs.

Are common law damages taxable?

No, you do not have to pay tax on personal injury common law damages.

25% Cap on legal costs

In all of our personal injury compensation matters, we act on a  No Win – No Fee basis. What that means is, there’s no upfront cost to you.

In Queensland, most compensation firms will charge you 50% of your compensation amount – the maximum allowed at law. This is very expensive. Our fee is different. We will cap our fee at 25% . Remember also, these are the maximum fees we will charge. If our fee in your claim is less, then we charge the lesser amount.

Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice.  And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.