Dependency Claims - Who is Eligible?

If your loved one was killed in a motor vehicle accident, work accident or public liability incident, then any dependents (i.e. children, spouses, de facto partners or loved ones) may be able to bring a dependency claim.

There is a statutory right to sue any person responsible for the death of the family breadwinner.  In certain circumstances, there may also be an award of damages for the loss of services provided by the deceased to their dependants.

The Dependents

Persons entitled to sue the defendant for the death of the deceased are members of the deceased person’s family, defined as:-

• a de facto partner of the deceased only if the deceased and de facto partner lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death;
• a de facto partner who lived with the deceased partner for a shorter period, if the circumstances of the relationship evidenced a clear intention that the relationship would be a long-term committed relationship;

• if the deceased had left a dependant who is a child of the relationship, a person who lived with the deceased as a couple immediately before the deceased’s death; 

• ‘Parent’ includes stepparents and grandparents; 

• ‘Child’ includes 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.

Although the above listed family members can bring causes of action, it is not sufficient for the family member to simply be a family member, they must be able to show a reasonable expectation of receiving a material benefit from the deceased while they were still alive.

Making the Claim

Any spouse, parent or child who claims (or is a party to a claim) must show that:

1. they were economically dependent on the deceased as a family provider, or the deceased provided household services to the dependant. This is generally easy to prove in the case of a spouse and       school-aged children.

It is more difficult when the claimants are the deceased’s parents; and

2. the defendant would have been liable to compensate the deceased for the damage caused by the accident if the deceased had survived the accident.

In other words, it must be shown that the deceased’s death was caused by a wrongful act or omission, and that act, or omission would have entitled the deceased (had they survived) to maintain an action and recover damages against the defendant.

Any defences that could have been raised by the defendant against the deceased may be raised against a claim by the dependants. For example, contributory negligence on the part of the deceased will reduce the amount awarded to the dependants by a proportionate amount.

Compensation if Successful

If you are completely successful in your claim for compensation, you will be compensated for the loss of the financial benefit you expected to receive from your spouse/parent during their life, such as the following:

• Loss of income, including your own, as a result of your spouse/parent’s passing from the accident;
• Funeral costs, as well as any other expenses incurred as a result of your spouse/parent’s passing from the accident; and
• The services your spouse/parent provided.

Damages are not recoverable for grief, sorrow and other distress resulting from the loss of a close family member.

Damages may also be awarded for the loss of services provided by your spouse/parent. ‘Services’ includes ordinary housekeeping, house maintenance and garden services and any additional material services, which one spouse may provide to the other spouse or to their children.

Potential Nervous Shock Claim 

As fatal accidents are very traumatic, it is common for family members to suffer a psychiatric injury if they witness the incident or when they are informed of the death. This is often referred to as nervous shock.

For example, you may be unable to work because of anxiety or another form of nervous shock you suffered from the accident, causing you to suffer a loss of income. You may require medical treatment or counselling to help deal with and treat your injury.

You may also be entitled to an amount of compensation due to the severity of the psychiatric injury you have suffered.

How we can help 

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Compensation Law.

If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or someone you know has been injured in a motor vehicle accident, at work, or due to someone else’s fault, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.