The loss of a loved one in an accident is never an easy time for any family. But if the death was caused by the negligence of another person – what the law terms a “wrongful death” – the dependants of the deceased are able to make claims for compensation which recognise both their financial and emotional loss.
The accident may have occurred at work, in a public place, or while driving. For a dependency claim by the deceased’s family to be successful, it must be proved that the death was caused by the negligent act of another person and that, had the deceased lived, he or she would have been entitled to raise a civil action against the person at fault.
A dependency claim can seek compensation both for the loss of the financial contribution the deceased made to the family (including future earnings) and also the loss of the care and assistance they provided to a household, such as domestic tasks and personal care of dependants. Funeral expenses and any medical and other out-of-pocket expenses incurred as a result of the accident are also claimable.
If the death occurred in the presence of family members (or near to them), they may also be able to make a ‘nervous shock’ personal injury claim for the loss and damage they have sustained because of that injury. It should be noted that damages are not recoverable for grief, sorrow and other distress resulting from the loss of a close family member.
Further claims can also be made for loss of consortium and servitium. Loss of consortium is a claim for compensation by a partner or spouse for loss of the company of a loved one. Loss of servitium claims are made when the person killed in an accident was a key member of a business or enterprise, and that business or enterprise loses, or is likely to lose income in the future, as a result of the death.
Who can make a dependency claim?
Queensland’s Civil Proceedings Act (“the Act”) defines the family members who can make a dependency claim, including:
- A ‘spouse’, including a de facto partner of the deceased if they lived with the deceased as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death; or
- a de facto partner who lived with the deceased for a shorter period, if the circumstances of the relationship evidenced a clear intention that the relationship would be a long-term committed relationship;
- a parent, including stepparents and grandparents;
- a child, including any child of the deceased (within or outside of marriage), as well as an adopted child, stepchild, grandchild and any other child for whom the deceased had assumed responsibility. This includes a child of the deceased born after their death.
The Act provides for only one action being brought on behalf of all dependants, by either a personal representative of the deceased or by one or more members of the deceased’s family claiming damage as a result of the loss. In the case of multiple dependants, any compensatory amount must be divided between each of the dependants. If one of the dependants is a minor, the settlement must be sanctioned by either the Supreme Court or the Public Trustee of Queensland.
Where and how the deceased’s wrongful death occurred is relevant to the dependency claim. If it happened at work, then dependant can make a claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) with WorkCover Queensland, for example. A road accident occasioning death and caused by the negligence of another allows for a dependency claim through the Motor Accident Insurance Act 1994 (Qld), while the Personal Injuries Proceedings Act 2002 sets out the requirements for such a claim in the case where a loved one died as a result of an accident in a public place. An action for loss of services provided by the deceased is governed by s 59A of the Civil Liability Act 2003 (Qld).
It’s important to note the time limits for starting a dependency claim, which in Queensland is within three years of the date that the cause of action arose, i.e. your loved one’s death.
Nervous shock claims
Seeing a loved one suddenly killed or seriously injured in an accident caused by the fault of another person, or even just hearing about it, can in some circumstances result in psychiatric injury as a result of the shock and trauma involved. In the worst instances, this injury can prevent a person continuing to work or even looking after their personal care.
Where this is the case, the injured person may be able to make a personal injury claim. Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock to someone who either “witnessed, at the scene, the victim being killed, injured or put in peril, or … is a close member of the family of the victim.” “Close member of the family” is defined as a parent, spouse or partner of the victim, a child, step child, brother, sister, half-brother, half-sister, step brother or step sister of the victim.
To make a successful claim for nervous shock, the family member claiming injury will need to obtain medical evidence which diagnoses a recognisable psychiatric condition that is more than a normal reaction of grief.
Again, a time limit of three years from the time of the accident applies in which to make a claim.
The importance of legal advice
To make a successful claim in any of the situations described in this article, the advice and guidance of experienced Gold Coast compensation lawyers is essential. The unique circumstances of wrongful death, combined with the variety of pieces of legislation covering compensation claims and the principles established at common law, mean that a great deal of expertise on the part of your legal representative is required in order to secure the compensation amount you’re entitled to.
Compensation matters are often long, complex and emotionally challenging. At Lifestyle Injury Lawyers, we’re compensation specialists who can help with any questions or concerns about wrongful death claims. Contact us today on (07) 5627 0321 or firstname.lastname@example.org