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My loved one died in a motor vehicle accident – can I bring a claim and if so, how?

My loved one died in a motor vehicle accident – can I bring a claim and if so, how?

Published on July 5, 2023 by Kate LathamKate Latham

In New South Wales, compensation is available to close relatives who were dependent on a person that has died as a result of a motor vehicle accident and they were not wholly or partially at fault for the motor vehicle accident. This article looks at compensation to relatives claims, who can make such a claim and what entitlements you may have.

Who can make a compensation to relatives claim?

The Compensation to Relatives Act 1897 (NSW) determines who can bring a claim as a consequence of the death of a loved one in a motor vehicle accident.

Compensation is available to those relatives who were either dependent on the deceased person financially or dependent for some service at the time of their death. Relatives with no financial or service dependency to the deceased person cannot make a claim.

Section 4 of the Act sets out that the following people have eligibility to bring a claim:

  1. A spouse or de facto partner. This includes a person who was living with the deceased person in a de facto relationship at the time of death;
  2. Children: This includes, biological, adopted and step children;
  3. Parents: This includes biological and adoptive parents; and
  4. Siblings: This includes half-brothers and half-sisters.

Only one claim is permitted, and once the total amount of damages has been determined, the amount is divided among those parties to the action in an amount agreed upon by the parties or determined by the court. For example, say there is a family of four people made up of a husband, wife, daughter (aged 10 years) and son (aged 8 years) and the husband dies in a motor vehicle accident.  The wife and both children will claim dependency, the amount of the claim will be determined and then apportioned between the wife, son, and daughter. 

What can I claim?

You can make a claim for the following heads of damage:

  • Economic loss such as loss of wages or earnings (this includes pensions);
  • Loss of superannuation;
  • Medical expenses;
  • Funeral expenses;
  • Domestic assistance such as household chores or services that were provided by the deceased. This can include household maintenance, babysitting and handyman tasks.

How is dependency calculated?

Establishing dependency claims can be a complicated process, as there are a number of methodologies used by the court to determine them. The courts have noted on numerous occasions that an assessment of dependency claims cannot be made by any meaningful arithmetical or actuarial calculation. However, some reasonable inferences and assessments must be made in order to reach a reasonable assessment of damages.

Firstly, the probable earnings of the deceased will be calculated. Then, the individual levels of dependency of the eligible claimants will be calculated relative to the deceased’s income. For example, working out how many years a minor child will have been dependent upon their deceased parent, or how many hours per week of domestic assistance was provided by a deceased spouse and the length of time that the dependency would have continued.

The court will assess the financial and non-financial contributions that the deceased made to the claimant(s) and the household generally as well as consider the extent to which the people making the claim relied on the deceased for emotional support, care, and guidance. The court may also consider the age, health and earning capacity of the deceased and those making the claim.

The court will assess the financial and non-financial contributions that the deceased person made to the claimant and their household, as well as the extent to which the claimant relied on the deceased person for emotional support, care, and guidance.

The court may also consider the age, health, and earning capacity of the deceased person, as well as the age, health, and financial circumstances of the claimant.

The court may use various methods to calculate the amount of compensation payable for dependency, but a common method is to rely upon the average expenditure of all groups in the Household Expenditure Survey undertaken by the Australian Bureau of Statistics. In circumstances where a deceased’s income is significantly higher or lower than the average, other methods can be considered and you can rely on financial documents showing a history of expenditure and provide, for example, bank statements, bills and details of loan or mortgage repayments.

What to do if you think you might have a claim.

It is important to note that each compensation to relatives claim is unique, and the amount of compensation payable will depend on the specific circumstances of the case. Contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you need assistance with a compensation to relatives claim.

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