An observation sometimes made about the common law damages or court-based compensation system is that it can be cheaper to kill someone than to seriously injure them. This blunt statement simply reflects the harsh legal reality that when someone dies as a result of a negligently caused accident, no compensation is payable for the death itself. Only losses that flow to other persons from that death can be compensated.

The types of losses that can be claimed for in the event of accidental death fall, broadly speaking, into two categories:

  1. Compensation for a psychiatric injury sustained by others as a result of the death; and
  2. Compensation for loss of financial support for persons who were previously financially dependant on the deceased.

Neither of these categories allow any compensation purely for the fact that a death has occurred. For example, nothing is recoverable by the deceased person’s estate as compensation for the death as such. If the deceased person had instead been severely injured but survived, very significant compensation would be recoverable by that injured person. But upon death, all of this disappears.

So when confronted by a death due to a negligently caused accident it is necessary for us as lawyers to identify what losses have been suffered by third parties. To take the first category mentioned above, namely compensation for psychiatric injury, the general legal requirements for this are:

  1. Close proximity between the claimant and the deceased person (such as an immediate bystander/witness or otherwise, a spousal, parent/child or close familial relationship); and
  2. There must be an actual psychiatric condition such as anxiety or depression resulting from the death. Grief, even severe and protracted grief, is generally not compensable.

If these things are established then compensation can be recovered for the psychiatric injury including economic compensation, so if the person’s condition interferes with their employment, damages can be recovered for past and future lost income, in addition to the cost of any ongoing treatment. In fact it is often crucial for the viability of a claim that these financial losses are identified, because compensation for non financial loss such as pain and suffering tends to be very limited.

In relation to the second category of compensation – namely, loss of financial dependency – this is a matter of identifying what the extent of the dependency was prior to the death and then projecting what the likely dependency was going to be in the future.

As a recent news article demonstrates, the application of these principles can have harsh effects. See Elizabeth Young says $35,000 CTP claim for son’s death ‘insult’ | The Courier Mail

While all the relevant facts are not presented in that article, let us assume the situation was that a mother whose adult son on whom she was not financially dependant was tragically killed in a motor vehicle accident, and at the time of the incident, the mother was retired or was not working. In that scenario the following outcomes could apply:

  1. Nothing is payable to the mother for the son’s death, taken by itself;
  2. As the mother was not financially dependent on the son, nothing is payable for any ongoing financial support;
  3. The mother is therefore only entitled to an amount to compensate her for the psychiatric injuries she sustained; and
  4. Because the mother wasn’t working at the time of the incident, she has no claim for economic loss and therefore the compensation available is only a limited sum for pain and suffering.

Unsatisfactory and unjust scenarios such as this have persisted for too long under the common law system, and law reform that allows some provision for compensating loved ones apart from and in addition to purely compensatory entitlements is long overdue.

But whether or not such reform occurs, it will always be essential to seek the advice of an experienced personal injury lawyer to ensure that every possible avenue of recovering compensation is pursued in the event of the death of a loved one resulting from the negligence of others.

John Compensation Lawyer

This blog was written by John Vandeleur, Director

Phone: (07) 3278 0099 or Toll Free 1800 316 716

Email: john@vbrlaw.com.au