Death Compensation Claims

When faced with a tragic loss, it can be difficult to consider taking any type of legal action. Understandably, dealing with your grief and that of your family and friends will be your priority.

When you are ready, we are here to sympathetically discuss your situation and provide you with professional advice and support at what is undoubtedly a stressful and difficult time.

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Death Compensation Claim Types

In Queensland, compensation for family members and dependents is available in certain circumstances when someone dies due to the actions of another. The legal action is called a claim for 'wrongful death'. Unlike most personal injury claims, legislation - rather than precedent, or law from decided court cases - sets out quite specific rules about:

- Who is entitled to compensation of this type - generally this will be a spouse, de facto or civil partner, dependent children of the deceased, and any other persons wholly or partially dependant on the deceased

- Who can bring a claim - often there is a limit of one claim, brought by a personal representative or one of the dependentsWhen a person will be eligible to make a claim

- The way in which the claim is brought and handled

Death at Work
A claim can be made to WorkCover or a self-insurer where there is a death caused by a work-related injury or illness, including a workplace accident.

Essentially, a death will be deemed to be due to a work-related illness or injury if the worker's death occurred:
- During travel to or from work, or for work
- During a break or recess
- Due to a work-related event
- In the course of employment, if the employment was a significant contributing factor

Further information about this type of claim, as well as how to access free grief counselling and other supports, is available at the WorkCover website.

Learn more about how you might be entitled to make a WorkcCover claim.
Death Due to a Motor Vehicle Accident
Generally, the relevant compulsory third party insurance provider will cover the amount payable to a dependent spouse or partner, and any dependent child or children, where the deceased was not solely at fault for the motor vehicle accident that cause their death.

If this is the situation but the other driver is uninsured or unidentified, the nominal defendant acts as the insurer to pay the amounts those dependants are entitled to.

If there is a dispute about liability (who is responsible to pay compensation, or 'damages'), or the amount payable cannot be agreed, a family member or personal representative may need to bring a wrongful death action in court.

The relevant legislation sets rules for when a wrongful death action can be brought in the courts.

As a basic summary, the rules are:

- The death must have been caused by a legal wrong - this means that the deceased must have been entitled to damages under ordinary personal injury laws if they had survived
- Anyone who would have been required to pay compensation in the personal injury claim will be responsible for the wrongful death claim
- A wrongful death action can be brought by the deceased person's family and one or more dependants
- The claim can be made by a personal representative, a member of the deceased's family, or a dependant
- There can be only one court action in respect of the death

Talk with an experienced motor vehicle accident lawyer for more information.
Death Caused by Slip and Fall
A death caused by a slip and fall is also usually based on the argument that a negligent act or omission caused the accident that resulted in the fatal injuries.

There may not be an insurer to make any damages payments that are either negotiated or awarded by a court. However, this should be investigated. A public liability insurance policy may be in place and liable to pay these amounts. Often a home, building or other place open to the public will have this type of insurance.
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What Evidence is Required to Make a Worker's Compensation Claim For a Death?
WorkCover or a self-insurer will require several pieces of evidence to process a claim for compensation arising out of a worker's death.

These include:

- Evidence that the death occurred at work, or as a result of a work-related injury or illness
- A worker's compensation medical certificate, death certificate, coroner's inquest report or autopsy report
- Evidence of dependence on the deceased worker, or a family relationship - this might be a marriage or birth certificate, or documentation establishing a de facto relationship
- Evidence showing the financial support provided by the deceased worker - for example, tax returns and bank statements

You may also, or instead, need to provide a statement giving details of the financial situation between the deceased and their dependants.

Court claims

Similar evidence will likely be required for a claim in other contexts, for example, where the fatal injury resulted from a motor vehicle or other accident.

In those cases, rather than evidence that the death was due to a workplace accident or work-related illness or injury, you will require evidence that the death was caused by a wrongful 'act or omission' of an individual, or individuals, or an entity (organisation), such as a company.

A wrongful act is something actually done by a person or entity.

A wrongful omission is something a person or entity fails to do, that they should have done.

Some examples of common law claims include where the death is caused by:

- This is a type of legal claim that basically arises from an assault, or an unlawful application of force - it's called battery because legally speaking an assault includes a threat to assault

- Very basically, a negligence claim is available when a person or entity, that owed the deceased person a legal duty to care for their safety and wellbeing, failed to do so to a reasonable standard, and the death occurred as a result.

Knowing what information to gather and where to source it from, and actually doing the work of obtaining and compiling all of this material, can be really stressful and confronting during what is already a difficult time. Personal injury solicitors experienced in work-related death claims can provide specific advice about the evidence that will best support your case and help to present it to the relevant organisation.
How Long do Settlements Usually Take in the Case of a Death?
The length of time it takes to obtain the payment or payments you are entitled to will largely depend on whether or not you can reach a settlement rather than having to go through a full court process including a trial. It will also depend on the type of claim you are making.

Statutory claims
Statutory claims with WorkCover or a self-insurer are usually decided quite quickly, sometimes in as little as 20 days if the right information is provided. Special provisions are in place to handle fatal injury matters. You can refer to their website for further information, or speak to us and we can handle this on your behalf.

Common Law Claims

It's more difficult to estimate how long the claims process is likely to take for a non work-related death. Ideally, a negotiated settlement can be reached with the insurance company that will pay the damages amount. In determining the amount they are willing to pay, the insurance company will assess the economic loss suffered. Having an experienced legal representative to manage this process and negotiate on your behalf can lead to a faster resolution and a more favourable outcome for each beneficiary.
Is There a Time Limit For Making a Compensation Claim For a Death?
There are strict time limits within which you can make a wrongful death claim.

WorkCover claims

Generally, a compensation claims must be made to WorkCover or a self-insurer within 6 months from when the death occurred.

Court claims

Generally speaking, in wrongful death claims you are required to commence a claim with the court within 3 years of the death occurring. Before lodging a court claim there may be certain steps you must take under the law to notify the person you are claiming against that you intend to make a claim.

We offer a session of free legal advice for any potential case, where we can discuss the claims process, including timeframes. If you decide to proceed, your legal representative will ensure your claim is progressed efficiently.
How Much Does it Cost to Lodge a Death Compensation Claim?
There is no cost involved in making a claim to WorkCover or a self-insurer in relation to a worker's death.

The legal fees involved in making a common law or court claim will vary depending on:

- The evidence required
- The complexity of the case, including the number of dependants entitled to claim, and whether they were partially dependent or wholly dependent on the deceased
What Are the Average Payouts For Claims in the Event of a Death?
Worker's compensation

Compensation payments consequent on a worker's death can include:
- A lump-sum payment, or quarterly payments, for dependants
- Reasonable funeral expenses
- Medical expenses

Where family members are totally dependent on the worker, the amounts payable in terms of the lump sum or regular payments are set by legislation. The precise figure changes year to year to take account of inflation and rising costs of living, but as a guide the 2021 figures are approximately:

- For dependent family members: $654,000


- for the spouse or de facto partner: $17,500
- for each child who is under 16: $35,000
- for each child who is under 21 and a student in full time education: $35,000


- For each child under 6: $130 per week until they turn 6
- Each child who is under 16: $162 per week until they turn 16
- For each child who is under 21 and a student in full time education: $162 per week while they remain a student

Where all family members are partly dependent on the worker's earnings, the amounts are less clear, as the legislation specifies only that the they must be paid an amount that is reasonble and proportionate to the financial loss' they have suffered, though the payment, currently, must be at least $98,000.

There is also provision for non-dependent family members, and parents of workers under 21.

As can be seen from the above, the rules make it quite complicated to determine the total amount of compensation that each member of the family is entitled to. Dependants or their legal personal representative may feel comforted by have an experienced lawyer assist them to determine the lump sum payment and weekly payments they are entitled to.

Other claimsIn situations other than a workplace accident or work-related death, the dependants or the personal representative (the executor or administrator of the estate) usually need to make common law or court claims for compensation.

Only one claim for the benefit of family members can be made in respect of each death.

A compensation award in a claim for wrongful death can include:
- Costs of medical treatment
- Funeral expenses
- Loss of economic support from the deceased
- Loss of services provided by the deceased

The court can award any amount it considers to be proportional to the economic loss suffered by the members of the deceased's family. These claims are therefore very dependent on the personal circumstances of the claimant or claimants, and on their relationship with the deceased.

Many claims of this nature are thankfully resolved without the need for a contested court hearing and the spouse or partner, dependent children and other dependants receive appropriate compensation. Therefore, it's difficult to provide general advice by looking at case examples as a guide to the likely compensation award.

As some indication, however, ininvolving a death caused by a motor vehicle accident, the bereaved spouse received for herself and four dependent children a total lump sum compensation award of just over $760,000.

We offer an initial consultation at no cost, where we can discuss and provide advice on issues such the total amount you and other dependants may be entitled to, and the process involved to seek these damages.

Psychiatric injury

In addition to a claim for wrongful death family members may, in some circumstances, be entitled to claim for any psychiatric injury suffered as a result of trauma, perhaps from witnessing a fatal accident or its aftermath.

This is done through a separate court claim that is also based on the legal wrong that caused the death. So if the death benefit claim is based on negligence, say from a reckless driver causing an accident, the claim for psychiatric injury would also be based on that negligence. These claims are complex and specialist advice can really help in determining whether to consider this type of claim.
Lodge A "No Win No Fee" Claim
If you suffer injuries while at work, you don't have to worry about the whole process of making your claim or the legal fees involved. Here at Smith's Lawyers, we offer free consultation services for injured workers looking to kickstart their claims. As mentioned before, we also have a no-win no fee, no catch policy.
Get in touch with us to give yourself the best opportunity to receive the maximum compensation possible for your claim.
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Thank you to Yasmine Chalvatzis, Vivian Lee, and to their supportive team members in helping me through this difficult trying time. I am very grateful for their assistance, and happy with the final outcome. I would also like to thank Jeremy Wiltshire, Barrister-at-law, who along with Yasmine, helped to bring a resoluti

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