Compensation to Relatives Act 1897 (NSW)

Whilst there is no claim for wrongful death at common law, where a person has died as a result of someone else’s negligence an action might be brought by eligible persons against the negligent party under the u003cemu003eu003ca href=u0022https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/ctra1897288/u0022u003eCompensation to Relatives Act 1897 (NSW)u003c/au003eu003c/emu003e for compensation for loss of personal and financial support as the result of the death.

Eligible persons under the Act include: spouses, siblings, half-siblings, parents and children of the deceased. There must have been a level of personal or financial dependence as between any eligible persons and the deceased prior to death. Such an action is to be brought by and in the name of the executor or administrator of the deceased, on behalf of the eligible persons.

Where no action is brought by an executor or administrator within six months of death, or where neither an executor nor administrator were appointed by the deceased, one or more of the eligible persons may bring the action.

Damages payable include:u003cbr/u003e- Loss of financial support;u003cbr/u003e- Loss of care and domestic support; and u003cbr/u003e- Funeral expenses. u003cbr/u003eu003cbr/u003eIt should be noted that damages under the u003cemu003eCompensation to Relatives Act 1897u003c/emu003e are subject to a percentage reduction of the damages for vicissitudes, as is also the case for personal injury claims. Vicissitudes are said to accommodate for the uncertainties of life (e.g. the chance of demotion, winning the lottery, premature death, intervening illness, disaster, remarriage, etc). u003cbr/u003eu003cbr/u003eu003cemu003eLoss of Financial Supportu003c/emu003eu003cbr/u003eLoss of financial support is typically calculated by estimating the deceased’s probable earnings (while deducting an amount to cover the deceased’s cost of food, clothing, etc) and comparing this to the level of dependency of each eligible person. With regard to children, the relevant percentage of dependency is to apply until at least 18 years of age. Factors such as the likelihood of the child attending university and family history can increase the age of dependency. u003cbr/u003eu003cbr/u003eDamages for loss of financial support under the u003cemu003eCompensation to Relatives Act 1987u003c/emu003e are not capped like they are under the u003cemu003eu003ca href=u0022https://www.legislation.nsw.gov.au/#/view/act/2002/22u0022u003eCivil Liability Act 2002u003c/au003eu003c/emu003e (see u003ca href=u0022https://www.hcourt.gov.au/assets/publications/judgment-summaries/2014/hca-9-2014-04-02.pdfu0022u003eu003cemu003eTaylor v The Owners – Strata Plan 11564 u0026amp; Ors u003c/emu003e[2014] HCA 9)u003c/au003e. The latter Act requires the court to disregard any of the deceased’s income which, but for their death, would have exceeded three times the average weekly earnings amount. Not having such a cap is clearly advantageous for dependants of high-income earners. u003cbr/u003eu003cbr/u003eu003cemu003eLoss of Careu003c/emu003eu003cbr/u003eDamages for loss of care encompasses domestic services which would have otherwise been provided by the deceased, such as babysitting, gardening, assisting with homework, etc. It is irrelevant as to whether the surviving spouse actually has a need for these services. In u003ca href=u0022https://eresources.hcourt.gov.au/showbyHandle/1/9794u0022u003eu003cemu003eNguyen v Nguyenu003c/emu003e (1990) 169 CLR 245u003c/au003e, the fact gratuitous services were subsequently undertaken by relatives/friends was inconsequential to the surviving spouse’s entitlement to claim for the domestic care that had been lost. Calculations are to be based on commercial rates under this head of damage. u003cbr/u003eu003cbr/u003eLoss of care can also include costs associated with loss of trade/labour. For example, if the deceased was a mechanic the future costs of servicing family vehicles may be claimable. An assessment of this nature inevitably involves some guesswork.u003cbr/u003eu003cbr/u003eu003cemu003eFuneral Expensesu003c/emu003eu003cbr/u003eReasonable funeral and cremation expenses are similarly recoverable. This generally includes the costs of erecting a headstone/tombstone, public notice, obtaining a death certificate, etc. Although, the cost of transporting the body to a distant place has not been recoverable in some cases.

The amount of damages payable is not affected by other sums paid or payable upon death, such as under a contract of insurance, under the deceased’s superannuation fund or by way of certain statutory pensions.