The Ins and Outs of Common Law Claims: An In-Depth Look

What Are Common Law Claims?

Common law claims are those that originated in the old common law courts that existed before the law of Wisconsin was codified. Over time, these older common law claims have been taken over and codified by the legislature into the statutory codes of today, however not entirely. For example, the cause of action of negligence now exists in the statutes under Wis . Stats. § 895.01 and Wis. Stats. § 895.02, but the cause of action of strict liability is still considered a common law cause of action. Basically, the rule is that if a claim once existed at common law, but no specific statute now exists that provided a cause of action for that claim in the same way, then it’s a common law claim.

Categories of Common Law Claims

The body of law formed by court decisions in the English and American common law can give rise to civil or criminal claims. A claim is the cause of action, itself. Tort law creates claims for wrongful acts without agreements, while contract law creates claims for wrongful acts arising from agreements. There are several other types of common law claims.
Tort Claims
When a claim arises from a tortious act, the resulting civil cause of action that the injured party has is a tort claim. Torts can arise in situations like:
• Defamation, when a false or misleading statement is made about a person that causes that person emotional distress or pain or damages the person’s reputation.
• Malicious prosecution, when someone is malicious and seeks to prosecute another person without just cause or with corrupt motives.
• Fraud, when someone intentionally deceives another person for their own gain.
• Assault, when someone intentionally causes someone else fear of bodily harm.
• Battery, when someone intentionally causes bodily harm to another person.
• False imprisonment, when someone intentionally engages in an act that results in another person being confined to a specific area.
• Business torts, such as interference with contract or interfering with business relationships.
Contract Claims
When the claim arises from an alleged violation of a contract or agreement, the resulting civil cause of action that the injured party has is a breach of contract claim. The breach can either be a significant nonperformance or a lesser deviation that substantially fails to meet the contract terms.
Other Common Law Claims
There are other types of civil claims that were developed under common law, even though they don’t fall neatly into the category of tort or contract claims, such as:
• Debt recovery, when a loan is granted from one person to another.
• Detinue, when one person had rightful possession of certain property, but the property owner fails to return the property to the person who rightfully possessed it.
• Conversion, when property is transferred from the rightful owner without their permission, to the benefit of the new possessor.
Certain other potential causes of action were created under both statutory and common law that include claims like assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, invasion of privacy, wrongful termination, intentional interference with a contract, trade secret misappropriation, whistleblower retaliation and fraud.

Common Law Claim Processing

Pursuing a common law claim can be an arduous process. Typically, litigants can expect the ordeal to take anywhere between six months and three years. This process is initiated by filing a Statement of Claim in the Local Court and ends with the decision of a Supreme Court judge.
Once a Statement of Claim has been lodged (and paid for) with the Registry of the Local Court the file is registered in the system, assigned a file number and allocated to a court list.
The court staff will then make an appointment to call a list hearing where the claim will be heard. The court staff may also schedule a mediation conference, which is sometimes used to facilitate a resolution between the parties before they have to see the magistrate. The court staff will send all parties a notice in the mail about the appointment.
Mediations are set for one hour, but often only take 15 minutes. The parties tell the mediator what their claims are and why they are bringing the claim, as well as proposing some ways the matter could be resolved. Sometimes there is some negotiations, but the mediation does not go very long. If the matter remains unresolved after the mediation or if the parties are unwilling to mediate, the matter will be listed for a hearing in court.
At the hearing, the parties will be sworn in by the court officer, who will inform everyone of their legal rights and obligations. Each party tells their side of the story and the decision is based on the words of the parties, and any witnesses they have in support of their case. It is up to the magistrate to determine who is telling the truth and who is not.
The magistrates will sometimes allow parties to make submissions on paragraph numbers of pleadings, but this is at their discretion and should not be relied upon. This practice can slow down matters and for this reason the court relies on precedents more than anything else. An example of this can be seen in the pre-prepared do-it-yourself document kits sold by some Local Courts. These documents are specific to a certain cause of action, and as everyone is busily working through them, the only people benefiting from the process seem to be the people selling the documents.
The availability of legal precedents means that claims do not need to be decided on the same facts every time. Instead, decisions will be governed by what happened in previous claims. This harks back to the days of kings’ courts where once something has happened in the past, it carries over into the future and becomes the basis on which the court makes its decisions.
Essentially, this process is used because it is efficient, but in reality it may not provide the best type of justice. Nevertheless, this is the way the system has always worked, and as such, while there may be some efficiencies, there is nothing particularly fair about it.

Issues with Common Law Claims

Claimants can face a number of common challenges when commencing a common law claim. These include:
Evidential burdens
Where you’re claiming for something like damages for an assault or some other wrongdoing, it’s up to you to prove your case. It is not up to the defending party to prove otherwise.
Costs of bringing a claim
Not only will you have to pay a retainer, but you’ll also be on the hook for disbursements such as court fees, services of documents fees (the company hired to serve the other party will charge a fee), and medical report costs.
Time
These types of claims can take considerable time to resolve. From the time you first go in for a consultation to the date of your settlement, you may be waiting several years for a resolution.

The Critical Role of Legal Counsel

Engaging the services of a competent and experienced lawyer is the best way to ensure that a claimant understands his or her legal rights and obligations under a common law claim. Legal representation will also afford a claimant the benefit of being properly advised before crucial decisions are made, including but not limited to the decisions to; commence a common law claim, settle a common law claim, and whether to accept or reject a settlement offer or other proposed resolution to the common law claim. With the exception of paid leave , these types of claims cannot be funded by any government body or third party. The general rule is that the individual pursuing the common law claim bears their own costs of litigation and their own defence costs incurred by the defendant. Cost awards, if any, are in the sole discretion of the Court and are typically non-existent or minimal, other than in exceptional circumstances. Therefore, an individual who pursues a common law claim in almost all circumstances is obliged to bear the following costs of litigation, legal representation, and defence costs.

Case Studies and Common Law Issues

To grasp the full impact of common law, one must look at important cases that have set important legal precedents. One such case is McDonald v AAF McQuay Pty Ltd (2005-2007) 36 VR 269, where a jury awarded $1,800,000 in damages for trespass to quiet enjoyment.
Common law also extends to workplace law. In the case of Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13, it was found that judgment made under common law allows for duty of care, which can be extended to involve forewarning the adjacent land owner of encroaching damage.
In the case of Harris v Ham (1838) 6 Bing 173, it was found that a mere omission by the defendant would not result in liability, but an omission by a specific action can lead to negligent liability.
Common law also applies to business as a whole. In the case of Campbell v Staniforth (2013) 103 SASR 387, it was found that without prior client consultation between solicitor and client, there is a lack of certitude and so the lawyer’s duty of care as a solicitor cannot be established.
Common law extends into real estate law, in particular, adverse possession claims. Such adverse claims are limited by requirements of possession being exclusive, continuous, and not giving notice of title. In the case of Eye v Dorton [1912] 1 Ch 162, the adverse possession claim was not upheld because it was found that the title was still reposed with the owner.

Trends in Common Law Claims

The future of common law claims will be shaped by social changes and the evolution of case law based on those social changes. For example, there are arguments being advanced in the courts that common law claims should be reformed to provide equitable compensation to claimants, as opposed to traditional tort damages. Traditionally it was held that concurrent liability in tort and contract could not occur, but there is a slowly developing body of case law that is challenging this rule. As society’s expectations change, lawyers and judges alike are looking to provide justice to claimants. Some claimants are left without any remedy, if they cannot sue in contract or for tort damages. This has been highlighted in Nichols & Ors v Neller (No3) [2019]. The claimants in that case were given a traditional measure of damages at common law , and this led to injustice.
The Future will also be influenced by the spread of the Uniform Law throughout Australia and the National Legal Profession (NSW) which provides a backstop of common law principles. Whilst the Uniform Law does not expressly override common law principles, it does address a number of areas where the law has developed over the years in respect of lawyers’ obligations. In the absence of these obligations being expressly overridden, a number of lawyers are seeking to interpret the obligations in the context of common law principles, and there is an argument that the Uniform Law should be read in light of the common law.
At the moment there is a growing diminishing of the lines between the roles played by barristers and solicitors and the concept of junior and senior counsel is perhaps becoming less relevant in the quest for a level playing field for litigants. This may provide opportunities for litigation funding bodies to initiate common law claims for the redress of historical wrongs such as the "stolen wages" and "stolen generations".