Flashcards in Actions on Death and Compensation Schemes Deck (16):
What are the two potential actions for the relatives of a person who was tortiously killed?
Generally there is no cause of action available.
However there are two exceptions:
1. Action by dependence. These claims are not brought on behalf of the person, but on the behalf of the person dependant on the deceased. Dependence - reliant on person who died, usually for financial support, although claims can encompass claims for loss of domestic support in some circumstances.
This is also in s17 of the Supreme Court Act 1995 (which technically has been repealed).
2. Ghost action brought under the Succession Act - brought by the deceased's estate. The statute doesn't create any new cause of action, all that's happening is that the accused's death, an action is brought in respect of a tort prior to that death.
What are the issues for a Dependence action?
1. Eligible claimants under s18 of SCA
2. The precondition of Recovery s17 of SCA
3. Assessment of Damages
Issue 1: Eligible claimants under s18 of SCA
1. Spouses in (1) de facto relationship (living for at least 2 years, or prove that you had an intention to live together, or there has been a child from the relationship if you're not married)
2. Parents as defined in s13: not just mother or father, but also include grandparent, step parent or loco Parentis (as if they were of relation)
3. Children included in s13
4. Siblings included everywhere but Qld.
s18(1) - general provisions describing nature of claim by dependence
s18(2) describes who is eligible.
Issue 2: The precondition of Recovery s17 of SCA
s17: For the dependence to have a claim, they have to show that the death was caused by a 'wrongful act neglect or dealt, and the act neglect or detail is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof'.
1. If a person got injured before death and then dies as a result of that accident much later on, past the limitation period and they didn't bring an action in that period, the family can't bring a claim
2. If the deceased settles the action before death, but didn't do it sufficiently, this also means no claim can lie because the deceased has already terminated the right to sue and hence the family's right to sue. Read v Grant Easter Railway.
3. If D dies before the deceased, it's irrelevant, can still recover, the deceased's action could have survived. - Partridge v Chick
4. Suicide may preclude recovery (compare: Haber v Walker and Lyle v SOC)
5. No recovery where P's death by overdose was not foreseeable consequence of D's wrong) - Lyle v SOC
The action pretty much will only succeed if the deceased would have ben able to maintain and succeed in an action.
Haber v Walker
Original accident was such as to be so serious, it caused deceased to become seriously depressed.
So consequences of original accident were so serious, they played on into a causal way, the deceased ended up taking their own life.
In those circumstances, the deceased's dependants should still be allowed to recover.
Lyle v SOC
Original injury not that serious but several years later, deceased took drug overdose. This wasn't associated with original injury in any way. In those circumstances, the idea that the D's insurer should pay for dependants for loss of dependency seems a lot more tenuous.
How do the courts assess damages?
Mainly economic losses.
Usually calculated by loss of future earnings minus such part of those earnings as the deceased would have been likely to spend on purely his/hew own account.
What are the types of loss recoverable?
1. Direct loss of financial support
2. Loss of domestic service (limits from CLA 2003 (Qld))
Burgess v Florence
Exclude sums that do not result from a dependency relationship.
The dependant husband had met his wife many years previously. The were both talented dancers and they set up a business. Most of their money came through this dance relationship.
She died as a result of a tort.
P dependant sought to recover from the tortfeasor, loss of income from him no longer having the partnership with his wife.
Held: Those losses not recoverable because they were not attributable to loss of support, but to the loss of a business income stream. Was able to recover finance for living situation that she would've paid.
What are vicissitudes?
Idea here is that the dependant person might have lost the valuable support for some reason anyway in the future, so can't be compensated.
Two ways in which support might have been lost anyway:
2. Dependant themselves may find other forms of support, e.g. might enter into a different relationship in which different forms of support are available.
But courts ignore possibility of divorce when calculating damages. They assume marriage for life.
They also ignore any possibility that P will remarry in the future even if there is evidence of P's actual intention to do so at the time of trial.
Courts will take it into account if at the trial, P has already entered into a new relationship.
What other considerations for damages?
Any benefits that come from the dependant's death e.g. insurance payments etc.
Under this principle, court will deduct:
1. Any financial support that is expected from any new relationship under s23A of Supreme Court Act 1995 (Qld).
2. Damages that accrued to the deceased's estate.
Under s23, courts are to ignore items such as:
1. Insurance pay outs;
2. Any gifts that are provided to the dependant in consequence of the death;
3. Any superannuation pay outs that now come to the dependant.
How are the damages paid?
They are paid in one lump sum and then divided by the claimants (s18)
Are there any reductions for contributory negligence of deceased or dependant?
Any negligence on the part of deceased is taken into account in determining award: Law Reform Act s10(5)
Contributory negligence on the part of the claimant: Benjamin v Currie.
If deceased's relative or whatever negligently caused the deceased's death, then such share would have been otherwise given to them are reduced. So it's still one lump sum, but still reduced to take into account that party's role.
Survival of actions
The rule at common law is that all actions die with the person whether it's the P or D.
Succession Act 1981 (Qld)
s66(1) action "shall survive against, or as the case may be, for the benefit of his estate". Basicalyl saing all causes of action that a P had beofre death can survive for the benefit of his estate.
No new causes of action, but does the following: cause of action created by P and D and the first part of s66(1) is allows action to survive for the benefit of P's estate.
The second part: the D's liability can be transmitted across the grave to the D's estate or in Qld to the beneficiaries of D's estate.
Death of the D
Action which survives pursuant to s(1) my be brought against any beneficiary to whom any part of the estate has been distributed as well as against the personal representatives.
Point to note, each beneficiary may claim contribution from any other beneficiary to whom asset's of the estate have been distributed.
s66(8) if the beneficiary innocently receives the distribution from the estate and then decides to spend it all one something, provided it was done innocently, the beneficiary is no longer liable from contribution from other beneficiaries.
s66(9) the beneficiary cannot be liable for more than what was distributed to them under the estate.