ABSTRACT
Introduction Often, persons injured will prefer to gain compensation under a statutory scheme rather than pursue a common law action such as negligence. This is for a variety of reasons, including: • the expense and delay which often occurs when suing a defendant
through the court system; • a tort (or fault) does not have to be proved under a statutory scheme; • even if a tort is proved, the defendant may be insolvent or uninsured or
the plaintiff’s damages may be reduced due to contributory negligence; • tort compensation is lump sum compensation, whereas statutory
compensation is generally paid periodically. A plaintiff who wishes to obtain compensation over and above that provided by statute will, of course, prefer to litigate at common law. In most jurisdictions, there is nothing to prevent this outcome. The current trend in Australia is not to replace tort actions with legislative schemes, but rather to supplement the common law. Such an outcome is not standard; for example, the Northern Territory has denied recourse to tort law for persons injured in transport accidents or at work. Victoria also limits recourse to the common law for transport and work accidents.
