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How will my Common Law Claim run and how long will it take?

Depending on the status of your injuries at the time of commencing your Common Law claim, a claim can take as little as 6 months to resolve, however the average claim duration is around 12 to 18 months. Claims durations are usually dependent on the complexity of the matter, as it is the more complex matters that proceed to trial. If a matter goes to trial, then it can take 2 to 3 years or even more to obtain a final determination from a Court.  However, the majority of claims in Queensland settle during the claims process and do not proceed to a trial.

The process for bringing Common Law Claims for personal injury in Queensland are governed by legislation applying to the type of claim being made.  The purpose of the legislation is to try to resolve claims prior to proceeding to litigation in the Courts.

In all personal injury claims, the claim is commenced with delivery of a Notice of Claim on the at-fault party or parties. The Notice of Claim provides details of the injuries being claimed for, how they occurred, the negligence of the at-fault party which caused the injuries, and the loss and damage sustained as a result of the injuries.

After the insurer has time to investigate your claim and the parties are able to gather information about the extent of your injuries, your claim proceeds to a settlement conference, where you have the opportunity to try to resolve your claim. If this does not occur, then your claim proceeds to litigation with the filing of a Claim and Statement of Claim in the appropriate Court.  

Once you commence your claim in the Court, you do not immediately move to a trial. The Court process encourages parties to try to resolve claims through Alternate Dispute Resolution (ADR) prior to moving to a trial. There are also opportunities for the parties to try to resolve their claims through written offers being exchanged between the parties whilst your claim is running. If the parties agree, your claim may proceed to a Mediation prior to the matter being set down for trial. At the Mediation, an independent mediator will try to bring the parties to a fair and reasonable settlement of your claim. 

If you are unable to settle your claim at the Mediation, then your matter is set down for trial and proceeds to trial at the next available hearing date.

If you are making a work injury claim however, and you wish to proceed with a Common Law claim for damages for your injury, you need to be very careful what steps you take when your workers' compensation claim is coming to an end. In Queensland, the majority of injured workers are required to make an election at the end of their workers' compensation claim as to whether they wish to proceed with a Common Law claim for damages in respect to their work injury. This occurs when the worker receives a Notice of Assessment of their work injuries from Workcover Queensland. 

If you take the wrong step when responding to the Notice of Assessment, you could lose all rights to proceed with a Common Law claim for damages and miss out on significant compensation.  It is extremely important that you contact The Personal Injury Lawyers on 1300 782 202 for legal advice prior to taking any steps in response to the Workcover Notice of Assessment so this does not happen to you.

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