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Deaths Arising Out Of Negligence And Possible Compensatory Responses

Deaths arising out of negligence and possible compensatory responses

If a loved-one dies as the result of someone else’s negligence, am I entitled to compensation?

When someone dies due to the negligence of another, the deceased will be unable to claim compensation for the cause of his or her death.  This does not mean that all compensatory rights are lost.  The rights prevail but in a different way.

The deceased’s estate, next of kin and close family-members may also have the right to compensation for the negligence which resulted in the death of the deceased.

Types of Compensation

Funeral expenses claims:

In circumstances where a death was caused by negligence it is possible to claim the costs associated with a funeral.

If funeral expenses were paid out of the deceased’s estate, or the estate suffered losses as a result of the negligence, the estate may recover those losses by way of compensation pursuant to the Compensation to Relatives Act 1897 (NSW) and the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

Similarly, if funeral expenses are paid by the family of the deceased, those expenses may be recovered by the family pursuant to the Compensation to Relatives Act 1897 (NSW).

Loss of dependency claims:

In circumstances where a death was caused by negligence and the deceased had dependents, the dependants may make a claim for the loss of the deceased financial support and domestic assistance.  Surviving children and widows/widowers commonly qualify for this kind of compensation which is claimed under the Compensation to Relatives Act 1897 (NSW).

Dependants are most commonly the deceased’s spouse and children, but can also include the deceased’s brothers, sisters, half-brothers, half-sisters and parents.

Such claims can be brought in circumstances where a dependant expected to receive a financial or a non-financial benefit from the deceased.

This means, for example, that when a parent dies as a result of negligence, the deceased’s child can make a claim for the loss of the financial benefit that he or she expected to receive from that parent up to the age of 18. Unlike damages awarded under the Civil Litigation Act 2002 (NSW), damages awarded in a dependency claim are not capped at three times average weekly earnings, meaning that the dependants of high-wage earners can be awarded amounts that reflect the true loss of the income of the deceased (as held by the High Court in Taylor v The Owners – Strata Plan 11564 & Ors)

A spouse may also claim for loss of financial benefit but may also claim for the loss of the domestic assistance and childcare assistance that he or she would have expected to receive. In Nguyen v Nguyen, the High Court held that these losses are calculated at the commercial rate of providing those services to the dependants.

Nervous shock / pure mental harm claims:

Nervous shock / pure mental harm cases arise when a person witnesses another person being killed, injured or put in peril or when the person is a close member of the family of the victim and that person, whether witness or family member develops a psychiatric disorder associated with the death or injury of the victim.

These cases revolve around the psychiatric harm suffered by the witness or the close family member.  Any compensation is awarded with reference to the effect of the death/ injury on the witness or family member’s life.

  • If the psychiatric injury caused pain and suffering. A claim would be made for non-economic loss provided certain thresholds were met.
  • If the psychiatric injury prevented the plaintiff from working. A claim could be made for economic loss.
  • If the psychiatric injury prevented the plaintiff from attending to their domestic duties. A claim could be made for domestic assistance.
  • If the plaintiff was required to attend private sessions with a psychiatrist because of the psychiatric injury. A claim could be made for treatment expenses.

Example – a widow/widower or surviving child may endure psychiatric pain and suffering which goes beyond what would be considered by psychiatrists/psychologists to be a “normal” grief reaction. In these cases, such close family-members may be entitled to receive compensation for the losses associated with that psychiatric injury.

The right to compensation for psychiatric harm exists at common law and is also provided for in
Part 3 of the Civil Liability Act 2002 (NSW).

 

Tom Hunter-Leahy, Solicitor, Liza Stewart, Paralegal and Jane Bulter, Senior Solicitor.

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