Category Archives: Compensation to relatives

Lord Campbell’s Act (UK) | 26 August 1846

ON 26 AUGUST 1846, the UK Parliament passed the Fatal Accidents Act 1846, also known as Lord Campbell’s Act.

Close relatives of a person killed by the wrongdoing of another were entitled by this Act to recover damages that the common law did not previously allow. The provision has been legislated in common law jurisdictions around the world. The Compensation to Relatives Act 1897 (NSW) introduced similar provisions in New South Wales.

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Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518

ON 23 MAY 2014, the Supreme Court of NSW delivered Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518 (“Scots College case”).

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171197

The parents of a deceased schoolboy and a company related to the parents were awarded damages against the boy’s school arising from admitted negligence causing the boy’s drowning on a school hike in 1999.

The court found that the parents suffered mental harm which resolved by June 2001.

The parents were awarded damages which included an amount of $75,000 for their costs associated with the coronial inquest.

The father was awarded $202,486, the mother was awarded $138,887 and both were awarded $95,00 jointly. The associated company was awarded $56,000 with respect to a claim for loss of services (per quod servitium amisit) arising from the inability of the parents to work whilst suffering from the mental harm.

The amount awarded to the company was significantly less than that which the company had sought.

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Taylor v The Owners – Strata Plan No 11564 & Ors [2014] HCA 9

ON 2 APRIL 2014, the High Court of Australia delivered Taylor v The Owners Strata Plan 11564 [2014] HCA 9.

The appellant, Susan Taylor, successfully appealed a decision of the NSW Court of Appeal with respect to a claim for a fatal accident  involving her late husband, Craig Taylor.  The deceased was killed on 7 December 2007, when an awning outside a shop on Sydney Road, Balgowlah, collapsed on him. The appellant made a claim under the Compensation to Relatives Act 1897 on her own behalf and on behalf of the dependants of the deceased. Part of the claim involved a loss of expectation of financial support.

The High Court held that s12(2) of the Civil Liability Act 2002 (NSW) (which limits damages for economic loss and loss of expectation of financial support) does not apply to claims under the Compensation to Relatives Act 1897 (NSW).  It was held that Act is to be construed so that the limits imposed by the section related to the “claimant” but not the deceased.  Accordingly, when assessing damages for loss of expectation of financial support, the court was not required to disregard the amount by which the deceased’s gross weekly earnings, but for his death, would have exceeded three times the average weekly earnings.

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Stuart v Kirkland-Veenstra [2009] HCA 15

ON 22 APRIL 2009, the High Court of Australia delivered Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.

http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html

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Civil Liability Act 2002 (NSW)

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

 

Nguyen v Nguyen [1990] HCA 9

ON THIS DAY in 1990, the High Court of Australia delivered Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990).

In this matter, a widower was able to claim the loss of unpaid domestic services of his late wife.

In a Lord Campbell’s Act claim, a loss may include the value of services the deceased would have provided around the home.

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Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

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Sydney, Australia

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