What Are My Rights Following the Accidental Death of a Loved One?

What Are My Rights Following the Accidental Death of a Loved One?

Published on:24th April,2017   Category: Accident tips

Dependency claims arise when someone has died and the death has been caused by the negligence of another person.  A dependency claim is essentially a claim for the loss of financial support, loss of domestic services and loss of parental services.  Dependency claims in Queensland are made pursuant to the Civil Proceedings Act 2011 (Qld).

To make a dependency claim a person needs to qualify as a dependent of the deceased.  This generally means that the claimant needs to be a family member of the deceased and needs to show that they were reliant on the deceased person for financial or other support.  To make a dependency claim the death must have been caused through a negligent act or failure to act by another person.

A dependency claim generally allows for recovery of benefits that a dependent could reasonably expect to receive from the deceased person had that person not been killed. The dependency claim is limited to compensation for loss of reasonable expectation of benefits that the dependent would have received from the deceased had they not died.  There is generally no right to compensation for grief and suffering associated with the death.

Dependency claims can occur where there has been an accident involving the death of an adult in circumstances where there is a child or other “dependent” who is reliant on that person for financial support.  For example, dependency claims can arise when a parent dies leaving behind a child or children under the age of 18.

In those circumstances where the child or children are under 18 the funds are generally held on trust for the benefit of the child.  That can sometimes involve the funds being managed by an administrator over a number of years – until the child becomes an adult.  The fees for administration of the fund can add up over the years and eat into the settlement sum.  This can be problematic because it reduces the funds available to the child and those funds are needed for their care over many years until the child reaches 18.   Those fees can be considerable and can extend over many years.

There is currently some confusion at law regarding whether corporate trustee fees associated with managing the settlement sum are recoverable as part of the dependency claim.  Two cases were heard in Queensland in 2016 dealing with this particular issue.

In Maggs v RACQ Insurance Limited the court found that fees associated with managing the settlement sum were not able to be claimed as damages.[1]   That particular case involved an unfortunate car accident where a man and woman were killed leaving their young child as an orphan.  The man and woman were not at fault for the accident.   The result of that decision was that the child would need to pay for the fund management fees from the settlement sum.

In Case v Eaton the court again considered the issue concerning whether fund management fees were able to be claimed as damages from the at fault party.[2]  This particular case involved similar circumstances to that in Maggs v RACQ Insurance, however, the court found that the fund management fees were able to be claimed in addition to the settlement sum.  The court noted that the child was unable to manage the funds herself because of her young age.  The court found that these types of damages for fund management fees were reasonably foreseeable at the time when the child’s parent was killed.

Contact one of our experts today if you would like more information regarding dependency claims and your rights following the tragic death of a beloved family member.

[1] Maggs v RACQ Insurance Limited [2016] QSC 269.

[2] Case & Anor v Eaton & Anor [2016] QSC 239.

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