A Personal Injury Lawyers Guide to Dependency Claims / Wrongful Death Claims in Perth Western Australia

In Western Australia, the surviving relatives of a person who has tragically died as a result of the “wrongful act, neglect or default” of another person (“at-fault person”) may be entitled to make a wrongful death compensation claim (aka "dependency claim") against the at-fault person.

Below is a discussion of the situations in which wrongful death claims typically arise, the relevant legislation, who is entitled to make a wrongful death claim, the categories of damages that can be claimed, the relevant time limits for making a wrongful death claim, how, as experienced personal injury lawyers in Perth, we are able to help.

You will also find the answers to some frequently asked questions regarding wrongful death claims.

Situations in Which Wrongful Death Claims Arise

In Western Australia, wrongful death claims typically arise from the following:

Motor vehicle accidents.
Workplace accidents.
Medical negligence incidents.
The use of defective products - product liability.
Public liability incidents, such as slips and falls.

Wrongful Death Claims – The Legislation

In Western Australia, wrongful death claims are governed by the Fatal Accidents Act 1959 (WA) (“FAA”). The FAA sets out the eligibility requirements for bringing a claim and the types of damages that may be awarded.

Who is Entitled to Make a Wrongful Death Claim?

The FAA provides that “relatives” of the deceased are entitled to bring a wrongful death claim in Western Australia.

The FAA defines "relatives" as follows:

“In this Act, relative in relation to a deceased person means —

(a) a person who immediately before the deceased’s death was —

(i) the spouse of the deceased; or

(ii) a de facto partner of the deceased who was living in a de facto relationship with the deceased and had been living on that basis with the deceased for at least 2 years immediately before the deceased died;

(b) any person who was the parent, grandparent or step parent of the deceased;

(c) any person who was a son, daughter, grandson, granddaughter, stepson or stepdaughter of the deceased;

(d) any person to whom the deceased person stood in loco parentis immediately before the death of the deceased;

(e) any person who stood in loco parentis to the deceased person immediately before his death;

(f) any person who was a brother, sister, half‑brother or half‑sister of the deceased person; and

(g) any person who was a former spouse or former de facto partner of the deceased person whom the deceased was legally obliged, immediately before his or her death, to make provision for with respect to financial matters.”

Proving that the At-Fault Person’s “Wrongful Act, Neglect or Default” Caused the Deceased's Death

Depending on the circumstances of the deceased’s death, a relative who makes a wrongful death claim, may be required to prove that the deceased died as the result of the at-fault person’s “wrongful act, neglect or default.”

What Categories of Damages are Available to a person Making a Wrongful Death Claim?

In a wrongful death claim, the eligible claimants (relatives) may be entitled to claim the following types of damages:

Medical treatment expenses:
- Compensation for out-of-pocket expenses incurred by relative(s) in relation to medical treatment the deceased received for his/her terminal injuries.

Funeral and burial expenses:
- Compensation for the reasonable costs of the deceased's funeral and burial or cremation.

Gratuitous services provided by family and friends:
- Compensation for time spent assisting the deceased with tasks that he/she was unable to complete as a result of his/her fatal injuries and providing emotional support.

Loss of financial support:
- Compensation for the loss of financial support that the deceased person would have provided to his/her relative(s) had he/she not died.

Loss of services:
- Compensation for the loss of a lifetime of future services that the deceased would have provided to his/her family, such as household chores, driving and childcare.

The Role of Legal Representation in
Wrongful Death Claims

Due to the complexity of wrongful death claims and the significant emotional and financial stakes involved, it is prudent for claimant(s) to consider engaging the services of experienced personal injury lawyers Perth.

Experienced lawyers can help the claimant(s) navigate the complexities of the claim and legal process, gather relevant evidence, negotiate with insurance companies, and represent them in court, if required.

Some of the key benefits of legal representation in wrongful death claims include:

Expertise in personal injury law:
- A lawyer with experience in wrongful death claims will have in-depth understanding of the relevant legislation, case law and legal procedures, thereby enabling them to provide comprehensive advice and guidance throughout the process.

Case preparation and evidence gathering:
- An experienced lawyer will know what evidence is required to prove that the deceased died as a result of the at-fault person’s “wrongful act, neglect or default” and to prove the full extent of the losses suffered by the claimant(s). A large amount of evidence may be required, including police reports, coroners’ reports, investigators’ reports, witness statements, expert reports, bank statements, tax records, medical reports and records. hospital records and specialists’ reports.

Negotiation skills:
- An experienced lawyer can effectively negotiate with insurance companies and opposing counsel to reach a fair and reasonable settlement on a relative(s) behalf. This can be particularly valuable in wrongful death claims, as insurers may be reluctant to pay out large sums of money without a fight.

Litigation support:
- If a relative(s) case proceeds to trial, a skilled lawyer and barrister will represent them throughout the litigation process, ensuring that their rights are protected and their claim is presented effectively.

Time Limits in Wrongful Death Claims

In Western Australia, there are strict time limits and notice requirements that apply to wrongful death claims. Failure to comply with these requirements can result in the loss of a person’s right to pursue compensation.

Key time limits and notice requirements include:

The FAA provides that the executor or administrator of the deceased’s estate is the appropriate person to bring an action on behalf of all relatives for whose benefit the action might be brought. If no executor or administrator has been appointed in relation to the deceased’s estate or no action has been commenced in the District Court of Western Australia within 6 months of the deceased’s death, then any one or more of the persons for whose benefit the action might be brought may instead bring the action.
Section 14(2) of the Limitation Act 2005 (WA) provides that an action under the FAA for damages for wrongful death of a person cannot be commenced if 3 years have elapsed since the death.

Advice for People Making Wrongful Death Claims

Seek legal advice:
- Consult with an experienced personal injury lawyer as soon as possible after your loved one's death to ensure that you comply with all legal requirements and maximise your chances of obtaining fair compensation.

Document your losses:
- Maintain detailed records of your financial losses, such as funeral expenses and lost income. This evidence will assist with calculating damages.

Maintain your patience:
- Wrongful death claims can be complex and time-consuming. Be prepared for a lengthy legal process and maintain open communication with your legal representative to ensure that you remain informed and involved throughout the process.

Focus on healing:
- While pursuing a wrongful death claim, it is important to prioritise your own emotional and psychological healing. Seek support from family, friends, and professionals, such as grief counsellors or therapists, to help you cope with your loss.

Frequently Asked Questions

Q. How long does a wrongful death claim take to resolve?

A. The time required to finalise a wrongful death claim can vary depending on the complexity of the case, the amount of evidence and documentation required, and the willingness of the parties to negotiate a settlement. Some claims may be resolved within a few months, while others can take several years to reach a conclusion. It is essential to remain patient and maintain open communication with your legal representative throughout the process.

Q. Can I still pursue a claim if my loved one was partially at fault for their death?

A. In Western Australia, the Civil Liability Act 2002 (WA) allows for the apportionment of liability between parties based on their degree of fault. This means that if your loved one was partially at fault for their death, you may still be able to pursue compensation, although your damages may be reduced in proportion to their degree of fault.

Q. What if the responsible party does not have insurance?

A. If the responsible party does not have insurance or is unable to pay compensation, you may still have options for recovering damages. For example, if your loved one's death was caused by a motor vehicle accident, you may be able to pursue compensation through the Insurance Commission of Western Australia. It is essential to seek legal advice to explore your options in this situation.

Q. How much compensation can I expect to receive for a wrongful death claim?

A. The amount of compensation you may receive for a wrongful death claim will depend on the specific circumstances of your case, including the extent of your losses and the degree of fault of the responsible party. An experienced car accident injury lawyer can help you assess the potential value of your claim and ensure that you receive the full range of damages to which you are entitled.

Q. Do I need to go to court for a wrongful death claim?

A. Many wrongful death claims are settled out of court through negotiation or alternative dispute resolution processes, such as mediation. However, if the parties cannot reach a mutually acceptable settlement, it may be necessary to proceed to court. Your legal representative can advise you on the best course of action for your case and represent you in court if required.