Wrongful Death
Calm, practical guidance for NSW families after a death caused by someone else's negligence, from dependency claims to coronial inquests.
When a death is caused by someone else's negligence, family members in NSW may be able to claim compensation for the financial support the person provided and, for close family, for their own psychiatric injury. Vamp Law explains the options at a pace that suits the family, manages any claim and can represent the family at a coronial inquest.
What can a family do after a death caused by negligence?
A family may be able to bring one or more claims after a death caused by someone else's negligence: a dependency claim for the support the person provided, a claim by close family members for their own psychiatric injury, and in some cases a claim by the person's estate. Most decisions do not need to be made in the first weeks, although a few steps have early deadlines, and those can be explained when the family is ready.
Kyra Pastrovic speaks with families directly and runs each matter herself. Vamp Law also acts for insurers and organisations in separate matters, so a conflict check is run before any new matter is accepted.
Who can claim compensation for a death in NSW?
The main claim is a dependency claim under the Compensation to Relatives Act 1897 (NSW). It is brought for the benefit of the person's close family, who under sections 4 and 7 include:
Spouse or partner
a husband, wife or de facto partner.
Parents
including grandparents, step-parents and anyone who stood in the place of a parent.
Children
including grandchildren, stepchildren and a child the person cared for as a parent.
Brothers and sisters
including half-brothers and half-sisters.
The claim is brought by the executor or administrator of the estate. If there is none, or they have not started the claim within six months of the death, a family member can bring it for everyone entitled (section 6B), and only one claim can be brought (section 5).
The claim compensates the loss of the financial support and services the person would have provided, such as income and help around the home. Reasonable funeral expenses and the cost of a headstone can also be recovered (section 3). Damages can be reduced if the person who died contributed to what happened through their own negligence (Civil Liability Act 2002 (NSW), section 5T).
How long does a family have to make a claim?
For most dependency claims, the Limitation Act 1969 (NSW) allows three years from the date the claim is discoverable, which cannot be earlier than the date of death, with a long-stop of 12 years running from the death (sections 50C and 50D). Motor accident deaths follow the separate time limits in the Motor Accident Injuries Act 2017 (NSW), and workers compensation has its own rules. A claim for a death resulting from child abuse is not subject to any limitation period (section 6A).
Can family members claim for their own psychiatric injury?
Yes, in some cases. A close family member who develops a recognised psychiatric illness because of the death may be able to claim damages under Part 3 of the Civil Liability Act 2002 (NSW), even if they were not there when it happened. Section 30 limits these claims to people who witnessed the death or injury at the scene and close members of the family: a parent or person with parental responsibility, a spouse or partner, a child or stepchild, and a brother, sister, half-brother, half-sister, stepbrother or stepsister.
Grief on its own, however deep, does not meet the legal test. The law requires a recognised psychiatric illness (section 31), which needs medical evidence, and damages are reduced to the same extent as any reduction for the contributory negligence of the person who died (section 30).
What can be claimed after a death in a car accident?
After a death in a motor accident in NSW, the CTP Green Slip scheme under the Motor Accident Injuries Act 2017 (NSW) pays reasonable funeral expenses whether or not anyone was at fault (section 3.4). They are paid to the legal personal representative or, if there is none, to whoever paid them, and SIRA asks that the claim be made within three months of the accident.
Where another driver was at fault, dependants can bring a compensation to relatives claim through the CTP insurer. Close family members who develop a psychological injury, and witnesses to the accident, may also be able to claim statutory benefits and damages. Court proceedings on a claim for a death generally have to start within three years of the death (section 6.32). The car accidents page explains the scheme in more detail.
What happens when a death occurs at work?
When a person dies because of a work-related injury, their dependants may be entitled to workers compensation death benefits, which can include a lump sum, weekly payments for dependent children and reasonable funeral expenses. The lump sum is indexed each year, and the rules on who is a dependant and how the lump sum is divided are specific, so Vamp Law explains how they apply to the family's circumstances. Other claims may also be available, depending on who was responsible.
What is a coronial inquest and can a lawyer represent the family?
A coronial inquest is a hearing held by a coroner under the Coroners Act 2009 (NSW) to find who died, when and where, and the manner and cause of death (section 81). Violent or unnatural deaths, sudden deaths of unknown cause, and deaths that were not the reasonably expected outcome of a health-related procedure are reportable deaths (section 6), and some deaths require an inquest (section 27).
Leave to appear
A relative must be given leave to appear at the inquest, personally or through a lawyer, unless the coroner finds exceptional circumstances (section 57).
Questioning witnesses
Anyone given leave can examine and cross-examine witnesses on relevant matters, which can help a family get answers.
Findings and recommendations
The coroner's findings cannot suggest that anyone committed an offence, but the coroner can make recommendations, for example about public health and safety (sections 81 and 82).
Vamp Law can represent the family at an inquest, explain the evidence as it comes in, and consider how the inquest relates to any claim.
Frequently asked questions
A dependency claim compensates the loss of support and services, so a family member who received neither may not have one. They may still have other claims, such as a claim for their own recognised psychiatric illness.
Sometimes. Under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), a claim the person had before they died generally survives for their estate.
Where the death was caused by the wrong, the estate generally cannot recover damages for the person's pain and suffering, harm or shortened life expectancy, exemplary damages, or earnings for the years after death, but losses before the death and funeral expenses can be included.
No. A relative can appear in person. Some families choose representation because the evidence can be technical and distressing, and a lawyer can question witnesses so the family does not have to.
A death after medical treatment is sometimes caused by negligent care. The medical negligence claims page explains how those claims are assessed, and the same family claims described here can apply.
Speak with Vamp Law when you are ready
This page is general information about NSW law, not advice on your family's situation, and the right answer depends on the facts and the documents. When you are ready, make an enquiry or call +61 431 569 686 to speak with Kyra Pastrovic. The first conversation can be brief, and nothing needs to be decided during it.
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