Common law compensation under the Motor Accidents Injuries scheme will only be available for people who were injured by someone else’s negligence in the accident and meet at least one threshold category:
- have a whole person impairment of at least 10 per cent, or
- is a child still receiving treatment and care benefits four years and six months after the accident, or
- is an adult still receiving income replacement benefits four years and six months after the accident and is assessed with a significant occupational impact.
In the case of a blameless accident, such as where the driver has a heart attack or a kangaroo hops onto the road, the driver may be said to be at-fault (or deemed at-fault) so that other injured people can still make a common law claim.
A common law claim can be made for:
- reasonable and necessary treatment and domestic care (paid care only) for as long as the person is likely to need it.
- income replacement for as long as the person is likely to need it. The first 12 months is limited to the amount available under the defined benefits. After 12 months, 100 per cent of loss of earning capacity plus superannuation can be claimed. A maximum pre-injury weekly earnings amount of $4,500 applies.
- loss of quality of life compensation, up to a maximum of $600,000, based on the whole person impairment (WPI) scale and any impacts the Court considers were not taken into account as part of the WPI assessment (such as a particular effect on the person’s quality of life). This does not apply to children - the court will determine the amount payable for a child.
- death benefits (funeral costs plus compensation for dependants).
A common law award will take into account any benefits already received under the scheme.
A common law award is paid as a lump sum.