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.