*The contents in this blog relates to legislation in Queensland.
A dependant is a person who expected to, in the future rely upon someone who is now deceased as a result of another’s negligence. The two major components of that reliance are a loss of financial support and a loss of services which that person provided. As a result of the death the dependant is entitled to bring a claim for damages for the loss of benefits flowing as a consequence of the negligence of the defendant who caused the death.
Dependency claims span back to the 1800’s where this area of law since that time has surprisingly not significantly altered. This is unlike many other areas of law that see vast regular reforms.
The most common approach to determining the loss of financial support is by looking at the deceased’s notional earnings and determining what their personal consumption was. The deceased’s personal consumption is then subtracted from their earnings. As can be expected it is often difficult to determine what the actual expenditure of the deceased was, and there are varying approaches used to determine personal consumption.
Determining personal consumption
The first approach to determining personal consumption is the statistical approach. This is often adopted where it is too difficult to obtain calculations of actual expenditure. This approach looks at what is called ‘dependency percentages’ where percentages are assumed regardless of income levels where consumption by the deceased is subtracted as a percentage of income that was constant.
The next approach is called the annual expenditure approach which takes into account personal consumptions such as food, clothes, recreational expenses, motor vehicle expenses and personal care costs and individually adds up these expenses to confirm what the deceased’s personal consumption was.
The latest approach to be utilised when determining personal consumption focuses on the underlying principle of personal consumption. This uses the deceased’s income to divide into income groups based on a quantitative method of splitting up a set of ranked data into 10 equally large subsections. This approach uses the latest detailed expenditure data taken from the Australia Bureau of Statistics. This approach allows for the consideration of reasonableness of the estimated dollar amount of personal consumption.
Essentially, the calculation to determine the award of damages that the dependant may be entitled to is as follows:
- Determine the deceased’s personal consumption;
- Determine the deceased’s after tax income; and
- Determine the loss of financial dependency suffered by the dependant.
Section 64 of the Civil Proceedings Act 2011 (‘the Act’) is the relevant legislation and section that must be observed when making these claims. The Act states that ‘the act or admission would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injury’. The Act goes onto state that a ‘court may award to the members of the deceased person’s family the damages it considers to be proportional to the damage to them resulting from the death’.
For a dependant to prove these types of claims it must be shown that there is a causal relationship between a breach of duty which resulted in the death, and the death. Essentially, a claim can be successful if you can show that if the deceased was still alive following the negligent incident, they would be able to pursue a cause of action in negligence for themselves.
It is worth stating that damages to the dependant will be reduced if there is contributory negligence on the part of the deceased, meaning that the deceased in some way contributed to the incident.
Loss of services
In relation to a claim for loss of services, the dependant has to show that they relied upon the deceased to provide services to them. Such services may have included completing housework, lawn and yard maintenance and any other similar tasks that they may have been regularly performing. This type of claim can be called a loss of servitium claim which essentially refers to the dependant having lost the deceased providing those services such as cooking and cleaning that they performed.
Dependant’s who are eligible to make a claim for dependency include:
- De facto partners;
- Children, step children, and a person to whom the deceased acted as a parent to at the date of death;
- Parents, step parents;
It is interesting to note that siblings, or step siblings are not able to bring a claim. Although the above listed family members can bring causes of action, it is not sufficient for the family member to simply be a family member, they must be able to show a reasonable expectation of receiving a material benefit from the deceased while they were still alive.
Another factor to consider with these types of claim is that only one proceeding may be brought, this by either a personal representative, or one or more of the deceased’s relevant family members. To commence the claim process the persons eligible must commence pre-court proceedings. Once the necessary pre-court and court steps have been achieved, an award of damages will then be determined. Such sum is divided into the shares the court decides between the eligible dependants.
Section 70 of the Act states that damages must not be reduced on account of any other amounts paid as a result of the deceased’s death, such as superannuation policy pay outs, pension benefits, or a contract of insurance.
In summary, a person who expected to be dependent upon the deceased is entitled to bring a claim for damages for a loss of financial benefits and services as a consequence of the defendant’s negligence for causing the death of the deceased. The deceased’s loved one must show that they were economically depending upon the deceased prior to their death. It also needs to be proven that if the deceased had survived the accident which caused death, the defendant would be been liable to compensate the deceased for the actions resulting in the damage caused. The deceased here in the alternative could maintain an action to recover damages against the defendant as a result of their negligence, if they were still alive.
The dependant must commence a claim within three years from the date of the accident resulting in the death of their loved one. The dependant, or their lawyer acting on their behalf must comply with all pre-court proceedings as stipulated by the relevant Act. Once an action is commenced and relevant procedures undertaken, the court will make an award of damages, if negligence is proved, which will be divided amongst the relevant dependants of the deceased.