There are severe limitations at common law on the right to issue proceedings for damages against a negligent party. Common law proceedings can only be brought by a person who is a dependant of a person killed in a transport accident, or who has a serious injury or an impairment level (excluding any secondary or reactive psychiatric or psychological injury) assessed by the TAC at 30% or more (see: "Benefits generally", above).

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 $47,230 and $1,063,610. A court also must not award damages for pain and suffering for less than $47,230 or more than $472,500. Damages to be awarded on the death of a person are restricted to a maximum of $773,900.

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.