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

• 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

Contents

• 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

Common Law Claims against employers and the unholy trinity (and another one)

• 1871 – Employer’s Liability Law (Prussia)
• 1880 – Employer’s Liability Act (England)
• 1884 – Workers Accident Insurance Law (Prussia)
• 1894 – Workers Compensation Act (England)

The State intervenes

• Impairment thresholds (15% vs 30%)
• Treatment of psychological impairment
• Election
• Limitation period

Statutory limitations on pursuing a common law claim

• 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 liability

• Retirement age (s76)
• Mitigation of damages (s77)
• Payment of interest (s78)

Modifications of the common law re damages

• Compulsory Mediation
• How this has played out in NSW

Procedural effects

• 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?

Common law damages and workers compensation

• Statutory pre-requisites
• Statutory intervention to true common law assessment
• Statutory curiosities
• Potential interaction with general insurance
• “The illusory recovery”

Modified Common law damages and the negligence

• f third parties

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

Voltaire

Questions