The difference between statutory and common law comes down to where each type of law originates and how it applies to your personal injury claim. Statutory law is created by parliament and written into legislation. Common law is built by judges through court decisions over time. In Western Australia, both systems work together, and your injury circumstances determine which type of claim you can make.
Statutory and common law are two branches of Australia’s legal system that operate side by side in personal injury cases. Statutory law covers no-fault schemes like workers’ compensation, while common law allows you to sue for damages when someone else’s negligence caused your injury. Knowing which path applies to your situation is one of the most overlooked steps in the claims process.
What Is Statutory Law in Australia?
Statutory law is any law passed by parliament and recorded in legislation. It can come from the Commonwealth (applying nationally) or from a state or territory government. When a conflict arises, Commonwealth legislation overrides state law.
For injured workers in WA, the key statute is the Workers’ Compensation and Injury Management Act 1981. This legislation sets out your entitlements to weekly payments, medical expenses, and lump sum compensation without needing to prove your employer was at fault. The trade-off? Statutory benefits are capped. You won’t recover pain and suffering under a statutory claim alone.
How Does Statutory Law Apply to WA Injuries?
Other examples of statutory law relevant to personal injury in Western Australia include the Motor Vehicle (Third Party Insurance) Act 1943 and the Civil Liability Act 2002. Each statute sets specific rules, including time limits and benefit caps, that directly control what compensation you can receive. I’ve seen clients lose entitlements simply because they didn’t understand the statutory deadline that applied to their specific claim type.
What Is a Statutory Claim?
A statutory claim is one made under a specific act of parliament. The most common examples include workers’ compensation claims, Compulsory Third Party (CTP) motor vehicle claims, and criminal injuries compensation applications. These claims don’t require you to prove fault. You follow the process the legislation sets out, and if you meet the criteria, you receive the prescribed benefits.
The catch (and most people miss this) is that statutory claims often need to be lodged and resolved before you can pursue a separate common law claim for the same injury.
What Is Common Law?
Common law is judge-made law. It develops through court decisions that create legal precedents. When a judge rules on a case, that decision becomes a reference point for future cases with similar facts. This process has shaped personal injury law for over a century in Australia.
Parliament can override common law at any time by passing new legislation. But where statute is silent, common law fills the gap. And unlike statutory benefits, common law damages aren’t limited to a prescribed schedule. If you can prove negligence, a court can award compensation for lost earnings, future care needs, pain and suffering, and more.
How Does Common Law Precedent Work in Practice?
A relevant example is the High Court’s 2023 decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. That ruling allowed survivors of childhood sexual abuse to bring claims even where the alleged perpetrator had died. One decision reshaped the rights of abuse survivors across every state. That’s the power of common law precedent, and it’s why having a lawyer who tracks these developments matters.
What Is a Common Law Damages Claim?
A common law damages claim lets you seek compensation when someone else’s negligence caused your injury. In WA, this typically applies to workplace injuries, motor vehicle accidents, and public liability incidents. Unlike statutory claims, you need to prove that another party owed you a duty of care and breached it. The payout potential is higher, but the burden of proof is on you.
Statutory Law vs Common Law: How Do They Compare?
Here’s one thing most articles get wrong: they frame this as an either/or choice. In reality, you may be entitled to both. A worker injured on the job in Perth might lodge a statutory workers’ compensation claim for immediate weekly payments, then pursue a common law claim for additional damages once they’ve met the required impairment threshold. The rules around sequencing these claims are strict, and getting them wrong can cost you tens of thousands of dollars.
Why Getting Legal Advice Early Changes Everything
Personal injury law in Western Australia is split across multiple statutes, each with its own time limits, thresholds, and procedures. Every situation is different. Whether anyone owed you a duty of care, your degree of permanent impairment, and which legislation applies to your circumstances all affect what you can claim. Research from legal industry analyses consistently shows that claimants with professional representation recover significantly more than those who go it alone.
Soul Legal’s personal injury team works across workers’ compensation, motor vehicle accident, and public liability claims in WA. If you’re unsure whether you have a statutory claim, a common law claim, or both, the smartest move is to talk to an experienced injury lawyer before any deadline passes.
Statutory vs Common Law Comparison
Feature | Statutory Claim | Common Law Claim |
| Source of law | Parliament (legislation) | Judges (court decisions) |
| Fault required? | No | Yes (must prove negligence) |
| Compensation type | Prescribed benefits, capped amounts | Full damages including pain and suffering |
| Speed | Generally faster | Slower, more complex |
| Payout potential | Lower but more certain | Higher but depends on proof |
| WA example | Workers’ Compensation Act 1981 | Negligence claim in District Court |
FAQs
Can you make both a statutory and common law claim for the same injury?
Yes. In many cases, you can lodge a statutory claim first (such as workers’ compensation) and then pursue a common law damages claim separately. In WA, the statutory claim often needs to be resolved before the common law claim can proceed. The sequencing rules vary depending on your injury type.
What is the difference between statutory and common law in workers’ compensation?
A statutory workers’ compensation claim provides set benefits like weekly payments and medical expenses without proving fault. A common law claim requires proof of employer negligence but can deliver higher compensation, including pain and suffering. In WA, you typically need to reach a minimum impairment threshold of 15% whole person impairment before accessing common law damages.
How long do I have to file a personal injury claim in Western Australia?
Time limits vary by claim type. Workers’ compensation claims should be notified to your employer as soon as possible. Common law personal injury claims in WA generally have a three-year limitation period from the date of the incident, though exceptions exist. Missing these deadlines can permanently bar your claim.
Does common law override statutory law in Australia?
No. Parliament can override common law at any time by passing new legislation. However, where statute is silent on an issue, common law fills the gap. Both systems work together in Australia’s legal framework, with statute taking priority where they conflict.
Do I need a lawyer for a statutory personal injury claim?
You’re not legally required to have a lawyer, but claims without legal representation typically result in lower payouts. Industry data suggests claimants with lawyers recover roughly 3.5 times more than those without. A lawyer can also identify whether you’re eligible for additional common law damages you might not know about.
What types of compensation can I get under common law in WA?
Common law damages in Western Australia can include compensation for lost past and future earnings, pain and suffering (general damages), future medical and care costs, and loss of earning capacity. The amount depends on the severity of your injury and the strength of your negligence case.
Rebecca Sorgiovanni is the Director of Soul Legal, a trusted Perth-based injury compensation lawyer with over two decades of experience representing injured clients in complex litigation and tribunals across Western Australia.
