LAWS1114 Lecture 12
Survival of actions; Statutory compensation schemes
Exam
- Star cases: see how we addressed it in the lecture.
- If we contrasted judgments & outcome still a bit unclear, that's what we should get from it.
Survival of Actions
- At common law, if one party died, the matter was over. A personal action dies with the person.
- Motor vehicle accidents: P couldn't bring action against insurer if driver died, unfair. Legislative action to remedy.
Section 66 of the Succession Act 1981 (Qld)
- (1) Causes of action survive in or against person's estate.
- (2) When an action survives in this way
- Medical expenses from time of accident to death recoverable
- Funeral expenses recoverable
- Loss of earnings from time of incident until death recoverable
- These are the 3 main things that are recoverable. Quite restricted; not future loss of earning, not pain and suffering.
- This applies whether estate is recovering from someone else, or having to pay out.
- (4) Supreme Court Act 1995 (Qld) Part 4: Looking at this next with dependant's claims.
- (6) Action can be brought against any beneficiary of a will. But NOT liable for more than they received.
Dependant's Claims
- At common law, relatives of a person tortiously killed had no cause of action.
- Modified by statute: First by Fatal Accidents Act 1846 (Lord Campbell's Act).
- Comparable legislation in all Australian states.
s17 Liability for death caused wrongfully
- Dependant's can recover if the person injured would have been able to recover if not killed
s18 Actions how brought
- (1) Spouse, parent or child can recover.
- (2) Spouse can include de facto partner
Workers' Compensation and Rehabilitation
- Word 'Rehabilitation' added in 2003.
- Rehabilitation is now an important part of it.
Basic Concepts
s 8 Meaning of accident insurance
- Compensation and damages: compensation is an amount payable under the Workers Compensation statutory scheme. Worker does not have to prove employer was at fault.
- Damages refers to compensation for employer negligence. Have to prove fault.
s 11 Who is a worker
- Person who works under a contract of service.
- (Not contract for service).
- No further definition of worker: have to go to common law cases to determine whether there is a contract of service.
- WRI: Work Related Impairment
- Used to be that if a worker received worker's comp, they could bring a common law action, but would have to pay back amount received from worker's comp out of damages received.
- Now, if there is an assessment of 20% or more WRI, worker can receive compensation and also commence an action for negligence. But, the amount received in damages now will be reduced by the amount received from Worker's Comp.
- Because, accident insurance now covers both comp and damages for employer (who obviously has to pay higher premium).
3.5 Access to damages
- Civil liability: 305 - 305J:
- Not going through in detail. Similar to CLA. But, some differences. From 1 July 2010.
- Regulation gives table of injuries
- eg. Maximum payable under the act for upper extremity injury is $160,000
- Need to calculate WRI, and put it into formula
- This gives the compensation payable.
- A negligence action is separate to this.
page revision: 2, last edited: 04 Mar 2011 03:27