When a loved one dies, it’s never less than sad and tragic. But when the deceased family member was also the main breadwinner, the consequences for dependants left behind can be devastating.
Economic insecurity can combine with shock, grief and depression to leave the surviving family in a very precarious position.
In situations where the loved one’s death was caused by an act of negligence, surviving relatives may be able to make a claim for compensation – a dependency claim – for the loss of personal and financial support provided by the deceased.
In NSW, this claim is made under the Compensation to Relatives Act 1897 (NSW) (‘CRA’).
In order for a claim to succeed, it must be shown that the deceased’s death was caused by a wrongful act or omission which would have entitled the deceased, if they had survived, to take action to recover damages against the defendant.
Understanding whether you’re eligible to make a dependency claim is something we’ll explain more in this post, but if you need guidance on making a compensation claim after the unfortunate death of a close family member, contact compensation specialists Gajic Lawyers.
Who is eligible to claim under the Act?
Eligible people who can make a claim under the CRA include: spouses, siblings, half-siblings, parents and children of the deceased.
Additionally, these eligible persons must be able to show a level of personal or financial dependence on the deceased prior to his or her death. The action is brought by and in the name of the executor or administrator of the deceased, on behalf of eligible dependants.
It’s important to note that under the CRA, only one action can be brought by eligible persons, with any damages awarded divided among dependants.
Claimants should also be aware that under s 5T of the Civil Liability Act 2002 (NSW), the court is entitled to have regard to the contributory negligence of the deceased person under a claim for damages brought under the CRA, meaning damages payouts to dependants can be reduced if it’s found the actions or omissions of the deceased played some role in causing their death.
What can be claimed for?
A compensation to relatives claim can encompass economic losses, including lost wages, earnings and superannuation, as well medical and funeral expenses.
A child who loses a parent through a negligent act, for example, can claim for the loss of the financial benefit that he or she expected to receive from that parent up to the age of 18. The amount potentially payable is not capped, as other damages amounts are in the Civil Liability Act, meaning a child of a high-earning deceased may be awarded an amount which reflects the actual loss.
A claim by a spouse may include both the loss of financial benefit provided by the deceased and the loss of the domestic and childcare assistance they provided. The loss is calculated at the commercial rate of providing such services, as found by the High Court in Nguyen v Nguyen.
Claims for compensation for the nervous shock arising from the death of a loved one are also possible. Damages in this claim may be available for economic and non-economic losses, as well as medical expenses.
How damages are divided
Any award of damages in a dependency claim is divided among the eligible persons who are party to the claim, apportioned based on the injury and/or loss arising from their loved one’s death.
If the deceased had more than one spouse, they are separate parties to the one action and damages will be apportioned between them.
Actuarial formulas and other evidence are generally used by the court in order to help decide on the apportionment of damages in dependency claims.
The need for expert advice
Dependency claims can be complicated and the guidance of specialist compensation professionals such as Gajic Lawyers is highly advised.
Past cases have demonstrated a wide discretion on the part of courts in assessing such claims. Strong evidence of dependency, of the deceased’s income and assets, and of the domestic and childcare assistance they provided to the household are all required in order for the claim to succeed.
There are also time limits to observe and the sometimes difficult assessment of how damages will be divided among dependants.
We can help make this whole process smoother and less stress-free, so contact us today for a no-obligation initial consultation.