The principles relating to common law claims for negligence are set out in Negligence and injury (see “Establishing liability”). 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.
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 psychiatric or psychological injury as a result of the death of another person might have entitlements to common law compensation, in the same way as any person injured in a transport accident. The scheme requires that the person 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”) 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 means a serious long-term impairment or loss of a body function, permanent serious disfigurement, severe long-term mental or behavioural 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 $52,770 and $1,188,180. A court also must not award damages for pain and suffering for less than $52,770 or more than $528,050. Damages to be awarded on the death of a person are restricted to a maximum of $864,900.
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.
The effect of all these restrictions will mean that there will be few cases in which injured persons or dependants will be able to issue common law proceedings for transport accidents.
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.