Written by: Garbis Kolokossian Losing a family member is an emotionally devastating experience. When that loss occurs due to someone else’s negligence or wrongful actions, the pain can be compounded by feelings of injustice and anger. During such a difficult time, understanding your legal rights to compensation can provide both a sense of justice and the financial support needed to move forward.
In Australia, various legal pathways exist for family members to seek compensation after a loved one’s death due to negligence. While no amount of money can replace your loved one, compensation can help cover funeral expenses and lost financial support, as well as acknowledge the emotional suffering experienced by surviving family members.
In this article, we’ll explore who is eligible to make a claim, what compensation may cover and key considerations for medical negligence claims. We will also look at important past cases as well as how experienced legal representation can guide you through this challenging process.
Legal avenues for compensation following a family member’s death
When a family member dies due to negligence or wrongful actions, surviving relatives may have several legal avenues available to seek compensation, including:
- Medical negligence claims: If a loved one dies as a result of medical negligence, compensation may be available for the pain and suffering they endured, as well as the impact on their family.
- Motor vehicle accident claims: In the case of a fatal motor vehicle accident, claims can be made through insurance or against the at-fault driver, such as Compulsory Third Party (CTP), Motor Accident Insurance Commission (MAIC), or Transport Accident Commission (TAC) claims.
- Workplace death claims: In the case of a workplace fatality, compensation options include workers’ compensation death benefits, dependency payments, and legal action against negligent employers or third parties.
- Public liability claims: If a death occurs due to unsafe conditions in public or private spaces, such as slip and fall accidents, public liability claims may be pursued.
Who can make a compensation claim?
When a person dies due to alleged negligence, the right to seek compensation does not automatically end with their death. Australian law acknowledges that surviving family members may have relied on the deceased for financial, emotional, or other forms of support, and therefore have experienced loss beyond just their grief.
Eligibility to claim compensation after a death varies slightly across Australian jurisdictions but generally includes:
- Spouses or de facto partners
- Children (including step-children and adopted children)
- Parents
- In some cases, siblings or other family members who can prove dependency.
Claiming as a family member who witnessed medical negligence
One of the most common types of claims involves family members who have witnessed their loved ones suffer due to medical negligence.
Seeing a loved one endure harm in this way can lead to profound psychological trauma, extending beyond the grief of their loss. Australian law acknowledges this impact through what is often referred to as ‘nervous shock’ or ‘psychiatric injury’ claims.
Legal basis for witness claims
Family members who witnessed medical negligence or its immediate aftermath may have a separate claim if they:
Family members who witnessed medical negligence or its immediate aftermath may have a separate claim if they:
- Developed a recognised psychiatric illness (beyond normal grief)
- Were present at the time of the negligent treatment or immediately after
- Can establish that their psychiatric condition was a reasonably foreseeable consequence of the healthcare provider’s negligence.
It’s important to note that mere distress or sadness, even if severe, is generally not sufficient for these claims. A diagnosable psychiatric condition is typically required.
Examples of eligible scenarios
Situations where family witness claims might occur include:
- A parent witnessing a child receive negligent treatment during birth or another procedure
- A spouse observing their partner receive incorrect medication leading to a severe reaction
- Family members present when a healthcare provider fails to respond appropriately to clear signs of deterioration
- Relatives who discover their loved one in a severely compromised state due to negligent care.
Evidence required for witness claims
To support a claim as a witnessing family member, important evidence includes:
- Medical records documenting the negligent treatment
- Psychiatric assessment and diagnosis of your own condition
- Documentation of your presence during or immediately after the negligent event
- Evidence of the impact of your psychiatric condition on your life, relationships, and ability to work
- Expert medical testimony linking the witnessed negligence to your psychiatric condition.
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Specific considerations for medical negligence death claims
Pre-existing conditions
You may still have a valid claim even if your family member was seriously ill before the alleged negligence.
Key questions to consider include:
- Did negligence cause or accelerate the death?
- Was the patient deprived of a chance of survival or longer life?
- Would proper treatment have improved quality of life, even temporarily?
Deaths in care facilities
When a death occurs in a nursing home or aged care facility, it may involve both medical negligence and institutional negligence.
Common issues include:
- Failure to provide adequate monitoring
- Medication errors
- Inadequate prevention of falls or pressure sores
- Neglect of basic needs.
Understanding different types of compensable damages
When a family member passes away due to negligence or wrongful actions, the law provides for compensation that can help ease the financial and emotional burdens left behind. These compensations are generally divided into two categories: economic and non-economic damages.
Economic losses
These are tangible financial losses resulting from the death, including:
- Funeral and burial expenses
- Medical expenses incurred before death
- Loss of financial support the deceased would have provided
- Loss of services the deceased would have provided (childcare, household maintenance, etc.).
Non-economic losses
These address the emotional and psychological toll caused by the death of a family member. These include:
1. Loss of companionship
Surviving spouses may receive compensation for the loss of companionship and the emotional distress it causes. Similarly, dependent children may be compensated for the loss of guidance and support from the deceased. This compensation acknowledges the non-financial, relational aspects of family life and is available to eligible family members.
2. Nervous shock (psychiatric injury) claims
Family members who witness a negligent event or its immediate aftermath may be eligible for compensation if they suffer a psychiatric injury. To qualify, the claimant must have a diagnosed psychiatric condition beyond normal grief, and the condition must be deemed reasonably foreseeable following the event.
Factors influencing compensation
A family member can generally pursue compensation for non-economic losses if they can prove dependency on the deceased.
The compensation amount is influenced by:
- Age and life expectancy: Younger dependents with a higher life expectancy may receive higher compensation amounts.
- Degree of psychological impact: Non-pecuniary (non-economic) damages often relate to mental health issues. More severe psychological impairments usually warrant higher compensation
- Mitigating factors: Factors such as contributory negligence (where the deceased may have partially caused their death) and expert testimony may influence the claim’s outcome.
Find out how much you can claim today.
Time limits for making a claim
Strict time limits apply to compensation claims following a death:
- Generally, claims must be commenced within three years from the date of death.
- In some jurisdictions, the time limit may be calculated from when the negligence was or should have been discovered.
- For claims on behalf of minors, different timeframes may apply.
- While courts have the discretion to extend time limits in certain situations, this should never be counted on.
Considering these constraints, it’s important to consult with a lawyer as soon as possible.
Significant Australian case precedents in negligence death claims
In Australia, several landmark cases have significantly influenced how negligence claims involving the death of a loved one are handled. These precedents have shaped the legal landscape for pursuing compensation in such tragic circumstances.
1. Sorbello v South Western Sydney local health network; Sultan v South Western Sydney local health network (2016)
In this case (NSWSC 863), the plaintiffs suffered psychiatric injuries after the birth of their son, who was born profoundly disabled due to medical negligence during delivery. The court awarded damages for nervous shock, recognising the severe psychological impact on the parents.
This case is significant as it highlights the court’s willingness to compensate for psychiatric injuries resulting from witnessing the birth of a child with severe disabilities caused by medical negligence
2. Annetts v Australian Stations Pty Ltd (2000)
The Annetts case involved two parents whose 16-year-old son was sent to work on a cattle station with the assurance that he would be supervised. Instead, the boy was placed in a remote location, became lost, and was later found dead after an extensive search. The parents were informed of his death by police over the phone months later. They claimed to have suffered psychiatric injury as a result of the stress and distress caused by the situation.
The case was significant because it addressed the issue of secondary victims; individuals who suffer psychiatric injury not by directly witnessing a traumatic event but by learning of it.
The High Court ruled that the defendant’s assurances about the safety of the boy were essential in establishing a duty of care toward the parents. The court also moved away from requiring ‘sudden shock’ or ‘direct perception’ for a claim to succeed, stating that these were factors to consider but not prerequisites for liability. This decision expanded the scope for claims by recognising that psychiatric injury could occur from learning about the death of a loved one, even without direct exposure to the traumatic event.
3. Gifford v Strang Patrick Stevedoring Pty Ltd (2003)
In this case, the defendant, Strang Patrick Stevedoring Pty Ltd, employed a forklift driver whose negligence led to the death of an employee who was crushed by the forklift. The deceased man’s three children, aged 19, 17, and 14, and his wife, later claimed to have suffered psychiatric injuries upon learning of his death. This case involved a claim from secondary victims, as the family members were not direct witnesses to the accident but were significantly affected by the news of the fatal incident.
While the mother’s claim was dismissed, the children’s claims were initially rejected under Section 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which required claimants to have witnessed the event or its immediate aftermath.
The High Court, however, ruled that a duty of care could extend to family members who had a close, loving relationship with the victim, even if they didn’t witness the event. The Court recognised that it was foreseeable that children could suffer psychiatric injury upon learning of a parent’s death in such tragic circumstances.
At the time, Section 4(1) allowed for claims by family members who were close to the victim, even if they didn’t directly witness the incident. This provision was later replaced by the Civil Liability Act 2002 (NSW). The Court’s ruling expanded the scope of liability for psychiatric injury, particularly for family members of workplace accident victims, even when they were not present at the scene.
This case is significant in broadening the ability of close family members to claim for psychiatric injuries and set an important precedent for future claims involving nervous shock or wrongful death due to negligence.
Our past successful cases for nervous shock claims
| Type | Case details | Settlement |
|---|---|---|
| Aged care home negligence | A man’s father died in an aged care home from sepsis, allegedly caused by a nurse’s mishandling of a catheter. The nursing home was initially reluctant to provide records related to the deceased’s care. Despite this, the plaintiff pursued legal action, resulting in a settlement for the plaintiff’s anxiety and depression. | $116,500 |
| Medical negligence | A man presented to a hospital in NSW with sharp left-sided chest pain on 13 July 2019, following a similar pain the day before. Despite initial treatments for a suspected heart attack, the decision was made to administer thrombolytic therapy, which led to intracranial bleeding and the patient’s death. The family received compensation for psychological distress. | $500,000 |
| Hospital negligence | A Western Sydney woman’s daughter, who had cerebral palsy and a ventricular-peritoneal shunt, passed away in 2012 due to a failure to diagnose and treat appendicitis. Despite presenting with typical symptoms, the daughter was wrongly discharged from a hospital without further investigation. This led to an untreated appendicitis that caused an abscess, which obstructed the shunt and resulted in her death. Following legal action and expert medical opinions, the hospital settled with the family for $150,000 in compensation for its negligence and the psychological distress caused to the plaintiff. | $150,000 |
