When a family member is killed in an accident it is deeply distressing. Such an accident also has the capacity to impact on the livelihood and wellbeing of a family if the person killed is a family breadwinner. If a family breadwinner has been killed you have a right under statute to sue any person who is responsible for their death. In some cases you may also be able to seek damages for any services which that person provided to their dependants which has now been lost.
If you are a member of the deceased person’s family you may be eligible to make a claim. Persons recognised as a member of the deceased’s family include:
● A child, a grandchild, or stepchild of the deceased
● Someone who received parental care from the deceased in place of their parent
● A parent, a step-parent, or grandparent of the deceased
● Someone who acted in the role of a parent to the deceased
● A spouse, de facto partner (for at least two years), or a partner at the time of death in a shorter relationship than two years providing there is firm evidence that the relationship was going to be a long-term, committed relationship.
Only a single action can be brought for compensation following the death of a family member. This might be done by a single representative of the parties affected, or it might be done by one or more of the members of the deceased’s family who are now suffering damage as a result of their death. Where there are multiple dependents affected any money which is awarded must be apportioned between each dependent.
The impact of an accident where a loved one has been killed can be significant. There is much to do in the short term as you begin to get back on track. Once you are ready to make a claim, you have three years from the date of the deceased’s death to commence your action for a dependency claim. While you may be grieving, it is important to begin an action such as this as soon as you feel able to, given that such claims do take time to process and finalise.
When you make a claim for dependency you need to be able to demonstrate a number of impacts so that the court can make an assessment. You must be able to show:
● You were dependent on the deceased as a family provider, or that the deceased was someone who provided household services to the dependent
● That the negligent party who caused the death of the deceased would have been liable to compensate the deceased for any injury or damage caused by the accident had they survived.
In cases where the defendant is a school-aged child or a spouse this kind of claim is a relatively straightforward thing to prove and to claim. In the case of a parent who was receiving care or support from the deceased it may be more complicated. It is not impossible though, which is where Smith’s Lawyers can help you with your claim.
You will be able to make a claim for any economic support which has been lost, and any relevant funeral or medical expenses which are relevant to the death of the deceased.
A dependency claim is a claim for any loss of financial support and benefit that the deceased provided to you. A claim will be calculated based on what you could expect to have received throughout the deceased’s life.
In some cases you may also or alternatively be able to claim for the loss of services due to the death of the deceased. Services might be things like house maintenance, housekeeping and gardening; as well as things like mending, or teaching which one parent might have administered to children.
Unfortunately, while this will be a distressing and difficult time for you, a dependency claim cannot compensate you for any sadness or sorrow you are experiencing. Note that in some cases, if the death of your family member has taken place in your presence or in a way that directly affects you, you may be able to make a separate claim under negligence for nervous shock.
A special relationship exists between partners comprising the love, affection, companionship, support and society that each provides to each other. This is referred to in the courts as consortium. In Queensland it is possible, in some cases, for compensation to be sought where one party has lost consortium due to the injury or death of their partner. In the case of a partner dying, a claim for loss of consortium is only calculated between the time of injury and the date of death.
Grace’s husband Eric was knocked off his motorbike due to the negligent actions of another driver. Eric was in a coma for six months, after which time he died of his injuries. In this instance, Grace would be able to sue for a dependency claim and also make a claim for loss of consortium for the period of time between injury and death.
Unless a significant period of time has elapsed between injury and death, it can be difficult to calculate a meaningful amount to substantiate this type of claim.
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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