What is a wrongful death claim?
Losing a loved one is always heartbreaking, and it can be even more difficult when their death is caused by medical negligence. In such cases, you may be able to sue the medical professional responsible through a wrongful death claim. However, it’s important to note that you can only seek compensation for how their loss has impacted your life — you can’t make a medical negligence claim on their behalf.
While no amount of money can make up for your loss, a successful claim can ease your emotional, psychological, and financial burdens.
Am I eligible for a wrongful death dependency claim?
You are eligible for a wrongful death dependency claim if you were a ‘financial dependent’ of the deceased. This means you relied on their money to meet your everyday living expenses.
Generally speaking, only close family members can make dependency claims. This includes spouses, de facto partners, children, parents and siblings. However, distant relatives or non-family members are eligible if they were financially dependent on the deceased.
How much compensation will I receive?
The exact compensation you receive depends on:
- Your age.
- Your relationship with the deceased.
- The deceased’s income prior to passing.
- The deceased’s contribution to everyday living expenses.
- Future education and maintenance costs.
Your compensation is based on the amount of support you would have received had your loved one not passed away.
Am I eligible for a nervous shock claim?
You can make a nervous shock claim if a loved one’s death caused you to develop a psychological illness. People who witness the death are also eligible to claim for nervous shock.
Only recognised psychiatric conditions like anxiety, depression or PTSD qualify. Unfortunately, you cannot claim for grief or distress alone.
How much compensation will I receive?
Your compensation will be based on:
- Medical expenses.
- Lost income.
- Pain and suffering.
Am I eligible for a loss of services claim?
You can make a loss of services claim if the deceased provided you with ‘gratuitous services’ like cooking, cleaning, childcare, and school drop-offs. Gratuitous services must be non-financial acts of care.
How much compensation will I receive?
By definition, gratuitous services are unpaid, so calculating their value can be difficult. The Court can look at several criteria, including:
- The deceased’s skills (especially if they had a trade).
- The time spent on services.
- The burden on the remaining family members and other relevant people.
How do I prove my wrongful death claim?
To prove your wrongful death claim, you must establish that the medical professional was negligent. This means they owed your loved one a duty of care, they breached that duty and your loved one died as a direct result.
- A duty of care existed: All registered medical professionals owe a ‘duty of care’ to their patients. They’re expected to treat patients with reasonable care and safety. If your loved one was treated by a registered medical professional, a duty of care likely existed.
- They breached their duty of care: If the medical professional behaves unreasonably (and your loved one dies as a result), they have breached their duty of care. They may have done something unreasonable (such as a surgical error) or failed to do something expected of them (like a GP not investigating a patient’s symptoms). You must provide evidence that another medical professional with similar skills and experience would not have done what they did.
- The breach caused the death The breach of duty must have directly caused your loved one’s death. This means that without the medical professional’s actions, your loved one would not have died.
Can my inheritance affect my wrongful death claim?
Yes, your inheritance will affect the amount of compensation you receive for a wrongful death claim.
If you’re a close relative of the deceased, it’s likely you’ll receive an inheritance after their death. Based on this inheritance, the Court will adjust the compensation you receive for your wrongful death claim.
Say, for example, you are awarded $150,000 for your nervous shock claim. You then inherit an additional $50,000 from your loved one’s will. This is a total of $200,000. However, you will not receive this full amount. The Court will reduce your nervous shock compensation by the amount you inherited (in this case $50,000). This brings your final total back to $150,000. The reduction occurs because the $50,000 inheritance is considered part of your compensation for your loved one’s death.
Do insurance or superannuation payouts affect my wrongful death lawsuit?
No, payouts you receive from your deceased loved one’s insurance or superannuation policies do not affect your claim. This includes life insurance and income protection policies.
Unlike inheritance payments, the compensation you receive for your claim is not adjusted based on your insurance and superannuation payouts.
Do time limits apply to wrongful death claims?
Yes, time limits apply to dependency, nervous shock, and loss of services claims. The exact time limit varies between states, so it’s crucial to know which limits apply to you.
If you’re already outside your state’s limit, speak to us as soon as possible. While time limits are strictly enforced, we can help you apply for an exception. Over the years, we’ve helped hundreds of clients win delayed claims.
| State | Time Limit |
| New South Wales | Within 3 years from the date you discovered your loved one died due to Medical Negligence, or 12 years from when Medical Negligence occurred. Whichever date you reach first will apply. |
| Victoria | 3 years from the date you discovered* that your loved one died due to Medical Negligence. |
| Queensland | 3 years from the date Medical Negligence occurred. You must also provide notice of your claim within 9 months. |
| Australian Capital Territory | 3 years from the date you discovered Medical Negligence. |
| Western Australia | 3 years from the date your loved one died. |
| South Australia | 3 years from the date Medical Negligence occurred. |
* The date you ‘discovered’ the Medical Negligence cannot be unreasonable. You’re expected to make inquiries into your loved one’s death. If you fail to do this, the Court may determine its own date of discovery (when you ‘ought to have discovered’ the Medical Negligence).
