When to pursue a Dependency Claim

 

Are you a Dependent?


In the event that a person dies as a result of someone else’s negligence, consideration should be given to whether anyone in that person’s family, that is, their spouse, children or parents, was in some way financially dependent on them. This can be by means of direct income or the services the deceased person provided. If such a loss can be established then there may be a claim against the person whose negligence caused the death.
 

The Supreme Court Act 1995 states that a spouse, parent and child of the deceased is entitled to bring a claim in respect of a wrongful death. The Act defines these groups to include sons, daughters, grandparents, grandchildren, stepparents, stepchildren or a person standing in the place of a parent of child. Spouses include de factos.

A claim for damages in these circumstances encompasses the loss of direct financial support the dependents would have received from the deceased and the loss of services, performed by the deceased, that the dependent had reasonable expectation of benefit from, together with funeral expenses.


Types of damage


Direct financial loss

The first of these is usually calculated using the deceased’s income and formulas that have been developed by the Courts and academics over time. By necessity this involves significant speculation on what the deceased person, and their dependents, would have done in the future. For example, the case of Thorton v Lessbrook Pty Ltd trading as TransAir (2010) QSC 308 required the Court to consider the likely career path of a police officer who died in a plane crash and, the career path of her fiancé, also a police officer.
 

Basically, the formulas assign a portion of the deceased’s income to what would have been spent on the deceased themselves, on joint expenses and on, for example, the spouse and children. A Court takes into account such factors as financial benefits a spouse may receive from a new relationship and in relation to future children yet to born out of the relationship.
 

Over the years different judges have expressed their preference for different methods of calculation in relation to the assessment of direct financial loss and the approach often depends on the particular evidence available.
 

Loss of benefit of services
 

The area that most people do not consider when making a decision to lodge a claim or seek legal advice is a loss in relation to the provision of services provided by the deceased. These services can be domestic and include services provided by the deceased depending on their particular skill such as their ability to fix cars or perform household maintenance tasks.
 

The test here has long been what will be ‘material loss’ or the ‘prospect of material loss’ and is derived from Lord Campbell’s Act (the Fatal Accidents Act (1846) (UK)). In the High Court decision of Nguyen v Nguyen (1990) 169 CLR 245, the Court awarded damages for the loss of domestic services provided by a wife (deceased) to her husband. Brennan J noted that in assessing damages in this respect, “the entire family situation before the death must be compared with the entire family situation after the death”. However, damages will not be awarded for a need for services created by a person’s death. This case was significant in Queensland as it allowed damages to be awarded where, for example, no one was hired to replace the services previously provided by deceased.
 

In a recent Supreme Court case Schimke v Clements [2011] QCS 182 Applegarth, J had to consider services provided by the deceased on a farm that was both the family’s business and home. His Honour held at paragraph 117:-

“What was lost was not simply the income of a husband who went off to work each day.  The plaintiff’s loss is not limited to loss of services to the business in which she was a partner.  Her loss is in respect of services on a farm which was both a source of income for her and her husband, and also their home.”


How Long do I have to Claim and who do I have to claim for?

It is important to remember that a claim for wrongful death/loss of dependency must be brought in the Court within three years of the date the death was caused. In Queensland, there are pre-proceedings scheme such as the motor vehicle and workers’ compensation schemes which you need proceed through prior to commencing court proceedings and, within the three years.

Further, only one action can be brought in respect of the death. This means that prior to bringing claim in the Court for damages and prior to settling a claim, also, you must identify all of the potential dependants to the claim.
 

Overall it important to gather as much information as possible about the deceased’s work, income and expenses together any gratuitous services they provided and also to obtain this same information with respect to all possible dependants.
 

While no damages for grief caused by a death in this type of claim, the Courts and legislatures over time have developed methods of providing as much compensation as is reasonable for the financial loss of a person to a family.  

Posted: Sat, 14 Jan 2012 20:48:01 +1000 By: Kate
0 comments
Your Comment

Please register if you would like to comment.