Common Law Claims A comparative analysis Presented by Tim Ainsworth - PowerPoint PPT Presentation

Common Law Claims A comparative analysis Presented by Tim Ainsworth and Anthony Hillary 13 October 2017

Contents  Workers compensation and the common law  Restrictions on obtaining common law damages and changes to common law principles  Relationship between common law damages and  Compensation  Recoveries / liability of third parties

Common Law Claims against employers and the unholy trinity (and another one)  Before workers compensation the right of a worker to sue an employer for negligence had existed since time immemorial  It wasn’t easy to succeed in such a claim though:  Contributory negligence a complete defence  An employer was not liable for the negligence of a ‘fellow servant’  Freely contracting individuals were assumed to have accepted various risks  There were also ‘right to die’ clauses in employment contracts

The State intervenes  1871 – Employer’s Liability Law (Prussia)  1880 – Employer’s Liability Act (England)  1884 – Workers Accident Insurance Law (Prussia)  1894 – Workers Compensation Act (England)

Statutory limitations on pursuing a common law claim  Impairment thresholds (15% vs 30%)  Treatment of psychological impairment  Election  Limitation period

Modifications of the common law re liability  Unholy trinity exorcised (s79, s80 and s83)  Nervous shock excluded (s84)  (Non est) lex loci delicti (s87 and s91)

Modifications of the common law re damages  Retirement age (s76)  Mitigation of damages (s77)  Payment of interest (s78)

Procedural effects  Compulsory Mediation  How this has played out in NSW

Common law damages and workers compensation  Cannot retain both compensation and damages  Balancing act re: alternatives  How is the balance set (NSW v SA)  What about costs?  What are the non-common law entitlements?  How generous is the scheme?

Modified Common law damages and the negligence of third parties  Statutory pre-requisites  Statutory intervention to true common law assessment  Statutory curiosities  Potential interaction with general insurance  “The illusory recovery”

Questions “Judge a man by his questions rather than his answers” Voltaire