Last updated 8 May 2025

There is a statutory right to sue any person responsible for the death of a person who would have provided for a family (pt 10 Civil Proceedings Act 2011 (Qld) (Civil Proceedings Act)). In certain circumstances, s 59A of the Civil Liability Act 2003 (Qld) (Civil Liability Act) also provides for an award of damages for the loss of services provided by the deceased to their dependants.

Persons entitled to sue the defendant for the death of the deceased are members of the deceased person’s family as defined by s 62 of the Civil Proceedings Act. ‘Spouse’, as defined in s 63 of the Civil Proceedings Act, includes:

  • 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
  • a de facto partner if the deceased left a dependant who is a child of the relationship, who lived with the deceased as a couple immediately before the deceased’s death

A ‘parent’ includes stepparents and grandparents (s 63 Civil Proceedings Act).

A ‘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 (s 62 Civil Proceedings Act, Hunt v National & General Insurance Co Ltd [1974] Qd R 157). The term ‘child of the relationship’ includes a child of the deceased born after the death of the deceased (s 63(2) Civil Proceedings Act).

If the person responsible for the death of the deceased was that person’s employer, then it is possible that the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) will apply to the claim (Greenall v Amaca Pty Ltd [2023] QSC 137; Greenall v Amaca Pty Ltd [2024] QCA 132). This means that, further to the requirements of s 62 of the Civil Proceedings Act, the family members must also be dependants under the WCR Act to bring a dependency claim. If that is the case, then it may be difficult to establish a claim for the lost services provided by the deceased to their dependants.

Only one action can be brought on behalf of all dependants (s 65(1) Civil Proceedings Act). This action can be brought by a personal representative of the deceased, or by one or more members of the deceased’s family who suffered damage due to the deceased’s death (s 65(2) Civil Proceedings Act). Where there are multiple dependants, any settlement monies must then be apportioned between each dependant. If one of the dependants is a minor, it is necessary to have any settlement sanctioned by either the Supreme Court or the Public Trustee of Queensland.

Where one member of a group of dependants may have caused the death of the deceased, it does not preclude the recovery on behalf of the other dependants. However, a dependant who caused the death will not be able to claim damages for loss of dependency, and the amount attributed to the remaining dependants is reduced by the share attributed to the person who caused the death.

Time limit for starting a dependency claim

In Queensland, the action must be commenced within three years of the date that the cause of action arose (s 11 Limitation of Actions Act 1974 (Qld)). It is also necessary for the dependant(s) to comply with the pre-court procedures contained in the Personal Injuries Proceedings Act 2002 (Qld), Motor Accident Insurance Act 1994 (Qld) and/or the WCR Act.

What must be established

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

  • they were economically dependent on the deceased as a family provider or the deceased provided household services to the dependant. This is generally able to be proved in the case of a spouse and school-aged children. It is more difficult when, for example, the claimants are the deceased’s parents
  • 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 (e.g. negligence) (s 64 Civil Proceedings Act).

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 (s 10(5) Law Reform Act 1995 (Qld)).

What damages are recoverable

The only damages recoverable are for the loss of the deceased’s economic support and some limited medical, funeral and like expenses if applicable. Damages are not recoverable for grief, sorrow and other distress resulting from the loss of a close family member. The loss to be compensated is that suffered by the dependants. This is the loss of the financial benefit they expected to receive from the deceased during the deceased’s life.

In some circumstances, damages can also be awarded for the loss of services provided by the deceased. ‘Services’ include ordinary housekeeping, house maintenance and garden services, and any additional material services such as hairdressing, dressmaking or teaching, which one spouse may render to the other spouse or to their children (ch 3 pt 3 Civil Liability Act, Nguyen v Nguyen (1990) CLR 245).

If the death occurs in the presence of family members (or to someone who has a close relationship to them), they may have separate individual common law claims related to their own injuries (known as nervous shock claims) under the general law of negligence.

Damages for loss of consortium and servitium

In Queensland, subject to certain thresholds, damages may be recovered for loss of consortium or servitium (services) suffered by a spouse/de facto partner, where the other party to the relationship has been injured or has died as a result of injuries.

‘Consortium’ means the relationship that exists between spouses (including de facto partners) and takes into account the affection, sexual relationship, companionship, assistance, society and comfort provided by each party to the relationship to the other. However, in the case of fatalities, it must be remembered that the period during which the loss is to be measured is that between the injury and the date of death. Unless a relatively significant period has passed between the injury and the date of death or the loss during that period is extremely severe, it may not be worthwhile to maintain such an action.

‘Servitium’ refers to the loss of having the injured person undertake things, such as cooking, cleaning and the like, for the spouse/de facto partner. Sections 58 of the Civil Liability Act and 306M of the WCR Act restrict damages for loss of consortium to fatal injuries, or where general damages have been assessed at greater than an amount prescribed under the Civil Liability Indexation Notice, which is updated from time to time, and has different amounts for different years. For the 2024-2025 financial year, that sum is $54 850 (under the Civil Liability Act), and under the WCR Act, where the amount for the 2024-2025 financial year is $53 090.47 and is to be calculated by multiplying the figures published for Queensland Ordinary Times Earnings by 28.78 times.