Difference between statute (statutory) and common law - Personal Injury claims

Statutory and common law exist as part of one integrated system of law in Australia. In relation to personal injury claims, the difference between statute and common law claims can depend on whether someone is at fault for your injury (such as your employer or another road user).  

Here we explain the difference between statutory law vs common law and the difference when making a claim for personal injury compensation.

What is statutory law?

Statutory law refers to any law that is detailed in legislation (laws passed by parliament). Legislation may be Commonwealth (relevant to all of Australia), state or territory.  

If there’s a conflict, Commonwealth statutory law takes priority over state or territory laws.

Example of a statute law 

An example of a statute law of the Commonwealth is the Work Health and Safety Act 2011, which details organisations’ duties and responsibilities for workplace health and safety. 

Examples of statute laws of states and territories are the workers’ compensation laws: 

• Queensland

• New South Wales 

• Australian Capital Territory 

• Victoria 

• South Australia 

• Tasmania  

• Western Australia 

• Northern Territory

What is a statutory claim? 

A statutory claim is one made under a statute. Examples of a statutory claim include claims made under relevant legislation for: 

• Workers’ compensation or work cover claims 

• If you’re injured at work, on the road or in a public place, note that you may also be able to make a common law claim.

What is common law?  

Common law is decided in the court system by judges. The role of courts in Australia is to interpret the laws made by parliament (statute law). Common law develops over time on a case-by-case basis, building precedents as judges interpret and apply decisions made in earlier cases. 

Parliament can override common law (case law) decisions by enacting laws (legislation) relevant to something where there was a ‘gap’ in statute law.  

Example of common law 

A recent example of common law, where a precedent was formed, is the High Court of Australia’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32. The case is of significance for survivors of childhood sexual abuse which essentially enables survivors of abuse to make a claim for childhood sexual abuse compensation, even if their alleged perpetrator is deceased.

What is a common law claim 

A common law damages claim can be made if you’ve been injured or suffered loss because of someone’s negligence. 

In the context of personal injury, a common law claim usually is in relation to a work-related injury, a motor vehicle accident or if you’re injured in a public place. 

Common Law vs Statutory Law 

No matter the circumstances of your personal injury and whether anyone has been negligent or is at fault, it’s important to contact an experienced lawyer as soon as possible.  

This is because the laws surrounding statutory claims and common law claims are complex, and different laws will apply to you, depending on the circumstances of your injury. Different scenarios could include:  

• A statutory claim may need to be made first and successfully resolved, before a common law damages claim can be made (such as if you’re injured at work) 

• You may make both a statutory claim for financial compensation and a common law damages claim under the same legislation (such as if you’re injured in a motor vehicle accident) 

Why you should contact Shine Lawyers  

Personal injury laws and requirements for compensation claims and damages are complex. They differ between states and territories.  

What’s relevant in all personal injury contexts includes: 

• Whether anyone owed you a duty of care and can be said to be negligent or at fault for your injury 

• Whether your injury means you’re permanently impaired from returning to work and your percentage of permanent impairment  

• Time limits to submit your statutory claim and common law claim 

To ensure you access the statutory compensation and common law damages you’re entitled to contact Shine Lawyers. We know the difference between statute and common law, which laws apply to your circumstances, and how to maximise your entitlement for injury compensation and / or damages.  

Our workers’ compensation, motor vehicle accident and public liability teams are experienced in all aspects of the statutory and common law relevant to your injury.

Shine Lawyers can help with statutory claims and common law claims 

Shine Lawyers have over 40 branches and 1000 team members across Australia. No matter where you’re located, we know the relevant law and time limits that apply to your situation.  

Proving someone is at fault for your injury can be difficult. We can help advise you, gather appropriate documents and information to support your claim, and help arrange medical or other expert assessments of your injury.  

There are requirements and time limits in place for statutory claims and common law claims. Getting legal advice from experienced compensation lawyers will ensure you are claiming all the compensation or damages you’re entitled to.  

Get in touch with Shine Lawyers. We can help you navigate the relevant laws and advise you on whether you can make a statutory claim, a common law claim or both.