Last updated 7 December 2016 This chapter is currently under review.
There is a statutory right to sue any person responsible for the death of the family breadwinner (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
- 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 (s 63 Civil Proceedings Act).
‘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  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).
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. 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 Workers’ Compensation and Rehabilitation Act 2003 (Qld) (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 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
- 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’ includes 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 (pt 3 Civil Liability Act, Nguyen v Nguyen (1990) CLR 245).
If the death occurs in the presence of family members (or near 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 $43 020 (under the Civil Liability Act) and $41 920 (under the WCR Act) (for injuries after 1 July 2015 see reg 6 of the Civil Liability Regulation 2014 (Qld) and reg 128 of the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)).