Dependency claims – compensation for loss of support following a loved one’s serious injury or death.

If a person is seriously injured or dies as a result of another person’s negligence, their family members may be able to bring what is called a dependency claim. A dependency claim is a claim made against an insurer for financial compensation for the loss of support resulting from a family member’s injury or death.

Dependency claims can be brought in various circumstances, including where a person has been injured or died as a result of a motor vehicle accident, dust disease, public liability accident, or professional negligence (such as medical negligence).

Eligibility

Under South Australian law, a dependency claim may be brought by an injured or deceased person’s:

• spouse;
• domestic partner;
• parent;
• sibling; and/or
• child (including adult children).
• if that person was dependent on the injured or deceased person.

Bringing a claim

A dependency claim must be brought within 3 years of the person’s injury or death. Sometimes a claim is brought shortly after a person’s death by the executor of their estate on behalf of their dependants. However, a claim may also be brought by a dependant him or herself if there is no executor, or if more than 6 months has passed since the person’s death and the executor has not brought a claim.

What sort of loss can be compensated?

Dependency claims can include compensation for loss of financial support, loss of consortium, solatium, and for recovery of certain expenses.

Loss of Financial Support

A dependant can bring a claim for loss of financial support if they relied financially on the injured or deceased person and have lost the financial support the person would have provided to them if not for their injury or death. This is most obvious in cases where the person has children who they provided for, or was the sole income earner in a relationship or household, but can be claimed in many different situations.

Compensation for loss of financial support is calculated by determining the amount of income, including government pensions or benefits, the person will lose from the time of their injury or death until age 67 (which is taken to be end of their working life), and then deducting the amount of that income the person would have used for their own personal expenses. The amount left over is considered to be for the financial support of the dependants and may be awarded as compensation.

The amount of compensation will depend on the person’s income and the degree of dependence.

Loss of Consortium

Loss of consortium compensation is intended to compensate a dependant for the loss of benefits of their relationship, such as companionship, as a result of their spouse or domestic partner’s injury or death. It can only be claimed by a spouse or domestic partner.

Solatium

Solatium is compensation for the suffering caused by the death of a child, spouse or domestic partner. In South Australia, the maximum amount of compensation that may be awarded for solatium is $10,000.00.

Compensable Expenses

Dependants may also seek compensation for some costs associated with the person’s death, including funeral expenses and any medical expenses incurred since and in relation to the person’s death. This could include, for example, the costs of counselling services.

Compensation may be reduced

Once the amount of compensation has been calculated using the above categories, any circumstances which warrant a reduction of the compensation must be factored in. There are two main reasons compensation may be reduced – where there has been contributory negligence, and to take into account the ‘vicissitudes of life’.

Contributory Negligence

If the deceased person is found to have contributed, by their actions or inaction, to the circumstances which caused their injury or death, compensation will be reduced. The reduction will reflect the extent that the person’s negligence contributed to the accident. For example, if a person is deemed to have been 30% at fault, compensation will be reduced by 30%.

Vicissitudes of Life

All awards of compensation will also be reduced to take into account the ‘vicissitudes of life’, or in other words, the unknown factors that may have detracted from the person’s financial situation or family relationship in the future had they not passed away.

Nervous Shock

A dependency claim is separate to a nervous shock claim, which can also be brought where a person suffers a psychological or psychiatric injury as a result of a family member’s death. A nervous shock claim can include compensation for pain and suffering, medical and psychological treatment, and loss of income.

We’re here to help

We recognise that no amount of money can compensate for the loss of a loved one or the impact that a serious injury has on a family or a relationship. However, bringing a dependency claim can help ease the financial strain you may experience at an already difficult time. Compensation can provide financial certainty and help ensure that families are able to grieve or adjust properly, without having to worry about their financial situations.

Johnston Withers Lawyers offer a free initial consultation and no win, no fee arrangements, which means that you can tell us what has happened and we can help you decide whether you want to proceed with a claim, without any financial risk. If you would like to discuss a potential claim, contact Johnston Withers personal injury lawyers on 08 8231 1110, or get in touch online.