Compensation to third parties of injured or deceased victim

Area of relational interests.

Compensation to relatives of fatal accident victims

If death ensues within a relatively short time after the accident, the family of
the deceased may claim for the financial loss suffered as a result of the death
and the estate of the deceased may proceed with the cause of action which
the deceased would have pursued but for the death
Only family/people specified can sue
Universally: spouse ( + same-sex), parents, step-parents, grandparents,
children, step-children, grandchildren
Blood relationship, not business
If there is no executor/administrator, or that person fails to bring an action
within 6 months after death of deceased, action may be commenced by anyone
for whose benefit lies
Legislation: acts caused by a "wrongful act, neglect or default" - in Woolworths
v Crotty held to also include breach of contract where no negligence
established against the defendant
Recovery under the statues allowed only for the direct financial contribution to
the dependant which the deceased would have made had he or she lived majority of cases for loss of chance of financial support from the deceased (i.e.
breadwinner - near certainty)

Damages

Lump sum. Although fatal accidents legislation requires only one action
be brought, also specifies that damages to be apportioned among various
members of deceased's family in way court sees fit
o Two factors
Extent of the prospective pecuniary advantage that the dependants
would have derived from the deceased
I.e. if breadwinner or husband - take into account substantial household
services as well etc
If the wife - and had performed the household/services - damage is value of
services
Consideration of any factors which might diminish that loss
Claimant at fault in causing the death and he is the only person who may be
sued for the death, that family member can recover nothing
One claimant partly to blame but others liable: share that would have gone to
the claimant to be reduced in proportion to degree which hejshe was
responsible for that death
Cannot take into account the receipt of insurance proceeds/offset the
amount of insurance: the victim took it out for their own and family's
benefit. Cannot take off superannuation benefits
o Spouse can now marry someone else

a) The rule in Baker v Bolton: in a civil court the

death of a human being may not be complained
of as an injury
Holdsworth, "The origin of the rule in Baker v Bolton" (1916) 32 Law Quarterly
Review 431

"In a civil court the death of a human being could not be complained of as
an injury" - accepted as correct statement (Lord Ellenborough)

First application: covers part of the ground covered by the maxim actio
personalis moritur cum persona - the representative of the deceased
victim of a tort, which has caused his (the victim's) death, cannot sue in
his representative capacity

Secondly: makes it impossible for a plaintiff to sue a defendant for a

wrong committed by the defendant to the plaintiff where that wrong
consists in damage causing the death of a person in the continuance of
whose life the plaintiff had an interest
This application: has nothing to do with the maxim action personalis because
both plaintiff/defendant are still alive
This originates in doctrine that if a cause of action in tort disclosed a felony, the
right of action in tort was affected
Is the cause of action in tort wholly lost or only suspended? The
merging is the problem
Baker is the product of confusion between the rule based upon the maxim
actio personalis and that based upon the act that the tortious act was a
felony - two principles cover different ground, one which concerned the
survival causes of action after death and the other the suspension or the
loss of a cause of action based upon facts which amounted to a felony

Baker v Bolton (1808) - STAGECOACH

Plaintiff and deceased wife riding on top of stage coach coach overturned and
she died a month later
Ptf sued for loss of consortium
Traditionally only men could bring claim for loss of consortium
Jury could only take into consideration the bruises hed suffered and the loss of
society and distress.
Damages stop when your wife dies

Husband sued for damage to his wife, occasioned by the overturning of a

coach, as a result of which she had did. Sued for loss of wife's consortium
o "Wholly lost and been deprived of the comfort, fellowship and
assistance of his said wife and had from there hitherto suffered
and undergone great grief, vexation and anguish of mind"
o He had been a publican and his wife had been of great assistance to
him in his business
No action arises out of the death of a third party (in common law)
o Only exception to this rule is statutory compensation compensation to relatives act 1897

Swan v Williams (Demolition) (1987) - SANDSTONE

Principle of law: According to the "much criticised" common law rule in Baker v
Bolton (now partially abrogated by fatal accidents or compensation to
relatives legislation in each Australian State and Territory), the death of
a human being may not be complained of as a legal injury in civil
proceedings. Thus where a wrongdoer, causes the death of a third party (e.g.
an employee), no tort action is maintainable against the wrongdoer by a
person (e.g. the employer of the deceased) who has suffered financial loss
as a result of the death.
Facts

On 24 August 1981, an employee of Williams (Demolition) Pty Ltd was using

an oxy acetylene cutting torch in a premises in the city, occupied by Williams
for the purposes of demolition. In consequence of the use of the torch, a
sandstone block was dislodged and fell onto a car stationary in York Street.
Occupants, Mrs DE Swan and her parents were killed.

Two actions: one by the deceased's husband, claiming to recover against

Williams for negligence and breach of regulations: brought on his behalf and
on the behalf of two children. Claim made for financial benefits lost by Swan

and the children by reason of the deceased's death, funeral expenses

and for damages for nervous shock suffered by Swan in learning
about the death. In the second action, Swan Paper Agencies Pty Ltd (the
company) of which both Swan and the deceased were shareholders
and employees sued Williams for breach of duty, claiming damages for the
loss of the deceased's services, and of those of swan while he was
affected by the alleged nervous shock
Trial Judge held that no action lay at the suit of the company for loss of the
deceased's services and claim for loss of services incurred by reason of
Swan's nervous shock failed on ground that Swan had not sustained
that injury. In claim under Compensation to Relatives --> damages
apportioned to him and his children, claim for nervous shock nominal

Held
Woolworths v Crotty applies; therefore the company's claim for damages for loss of
the deceased's services occasioned by her husband denied
Company had not proved that it had suffered damages because of nervous
shock caused to Mr Swan of the kind necessary before damages could be
recoverable in respect of it
Under Compensation to relatives claim - $124,000 to Swan and
$10,000 to each of the children
Appeal in first action allowed. Appeal in the second action dismissed

b) Fatal accidents legislation; the compensation to

relatives act ("Lord Campbell's Act 1846") for the
benefit of the deceased's dependents e.g. the
deceased's spouse, child (ss 4(1) 7(1) (4))
Compensation to Relatives Act 1897 (NSW) ss 3-5, 6B, 7
Wrongdoers who caused the death now have to pay damages to their
dependants: in industrial revolution increased technology, use of
machines, industrial accidents - until this time, if worker was killed on the
job, dependants left to mercy/charity of others
This, with the contributory negligence statute - expanded liability
20th century: claims for psychiatric injury for killed/injury/putting in peril of family
members of a deceased
Doesn't have to be tortious - but wrongful at law, caused by "wrongful act,
neglect or default"
Wrongful act/breach of statute/breach of contract. Does not have to be
FORESEEABLE. Does it satisfy the test of causation [without going into
remoteness]?
Was the D's negligence a necessary condition of the P suffering the damage
(another way of applying the but for test) - at CL the but for test is the
threshold test, then pass to remoteness (whether damages was
reasonably foreseeable i.e. Wagon Mound Number 1)
Primary victim killed/dies from injuries. Not if they are injured.
S4 who can claim
S5 all claims in one action
CONTRAST S30(S) of the
CLA.
Deceased would not have an action if they sued the defendant and got a
judgement, and then dies as a result of injuries. Because of the judgement,
the cause of action merges with the judgement and ends with the
judgement - so at the moment of death, no longer a cause of action: a
cannot sue the defendant at the time of death. If granted $200,000 which had
to be paid - would be paid to A's estate, not A itself.

When someone dies, the property goes into estate of deceased person
and legal ownership of party passes into whoever is the legal
representative of that person recognized by law (Executor of the estate or the
administrator of the estate)
Executor brings compensation to relatives claim on behalf of any
possible claimant
One action, brought by the executor, and if not done within 6 months - any
relative can bring it themselves but have to on behalf of everybody

Executor brings two actions:

Victim's loss from injuries until the death vs. relative's loss from the death
(funeral expenses included in this)

c)

Condition precedent (s3(1): a right of the deceased

at the moment of death to maintain an action (in tort
or contract) against the defendant and recover
damages in respect of the defendant's act which
caused the deceased's death

The Stella [1900] - DROWNING

Exclusion clause in contract between tortfeasor and deceased relatives

have no claim: The Stella.
-

While on a voyage between South Hampton and Jersey

80 people drowned
One passenger had been issued a free pass that protected them against
liability in the event of the death of the user

The trial judge if he lived he could not bring a claim for the benefit of this
family because of the exclusion clause

Nunan v Southern Railway Company [1924] 100

POUNDS
Contract terms limit damages limitation does not bind relatives
Nunan gets killed which was caused by Ds negligence

Ticket held by Nunan limited liability to 100 pounds for death or injury of
passenger. Did not exclude liability.

If Nunan had lived, he would have been able to recover damages

Ticket only limited damages that would be paid, didn't exclude altogether
therefore the limitation did not exclude the deceased person's action - wasn't
limited by the limitation in contract between other parties

RIGHT TO BRING NOT THAT THEY WILL BE SUCCESSFUL

Woolworths v Crotty (1942) LIGHTBULB

Principle

of

law:

Under the fatal accidents or compensation to

relatives legislation in each Australian state and territory, where the death of
the person has been caused by the defendant's "act neglect or default",
a tort action is maintainable against the defendant for the benefit of
family members of the deceased who have suffered financial loss as a result
of the death. In this context, the defendant's "act neglect or default" includes
a breach of contract.
Facts
Does Lord Campbell's Act apply in cases where the death is brought
about by a breach of contract? Or is the Act limited to cases where it is the
result of a tort?
Plaintiff's daughter bought an electric light globe from the defendant on behalf
of her brother. Her brother used the globe. The globe was
imperfectly constructed and the result was that the brother was
electrocuted and died. The jury found the defendant company impliedly
warranted that the globe was fit for the purpose which it was
subsequently put by deceased and not reasonably fit for such purpose
Jury gave a verdict for the plaintiff - on the breach of contract. Full court held
that Compensation to Relatives applied to cases of breach of
contract and the appellant contests this decision
Held

Act deals with cases which, after the death of a person, no action was
maintainable against the person who had caused the death by a wrongful
act, neglect or default. Also, it is sometimes right and expedient that the
wrongdoer in any such a case should be answerable in damages for the injury
so caused by him - giving damages in cases where otherwise the death of the
person injured would have prevented any action being brought and damages
being obtained
o
Deal with other cases, i.e. where no such action is maintainable but where it
is right and expedient that a wrongdoer should be answerable in damages

The effect of the maxim action personalis: personal representatives of

the deceased victim of a tort had no remedy in respect of pain and suffering,
or death of the deceased, but by CL and statute exceptions had certain
rights to recover damages caused to his property by a tort - the maxim does
not apply to prevent survival of causes of action on contracts
o
Limitation on damages recoverable: not recoverable in respect of personal
injuries, but only injury of the personal estate of deceased

Rule of Baker v Bolton: there was room for remedial action by way of
legislation by giving a right of action for the benefit of some persons who had
suffered damage from the death of another person caused by an act which
was wrongful in relation to that person, but not other persons - but there can
be no cause of action in contract for death of a person as a breach of contract

The reality and the extent of loss suffered by relatives of a deceased man
would be the same whether the act, neglect or default which caused his
death was a tort or a breach of contract
o Law had already provided a remedy for cases for the breach of
Lord Campbell's Act in breach of contract, so cannot be said that an action not
maintainable for damages in those cases

Words "Wrongful act" very general - can be applied to breaches of contract as

well as to torts - breach of contract may fall within heading ofneglect or
default, where a party either fails (neglects) to perform a contractual duty or
makes default in performing it, by completely failing to perform it or by
performing it in insufficient/imperfect manner

Appeal dismissed

Kupke v Sisters of Mercy [1996] - NURSE

Principle of Law: Under the fatal accidents or compensations to
relatives legislation in each Australian State and Territory, it is a condition
precedent to a tort action for the benefit of family members of the deceased
that, at the time of death, the deceased had a cause of action against the

defendant in respect of the act or omission which caused the death.

Facts

1988: Alex Kupke, a nurse employed by the defendant, suffered personal

injury in an accident in the course of employment. In 1989 Mr Kupke
commenced an action against the D in the Supreme Court of QLD to
recover damages in respect of his injury. Psychiatric evidence showed
that he had developed a depressive neurosis and, on 29 October 1991
while action against the defendant proceeding toward trial, took an
overdose of prescribed tablets and died.

On 14 May, 1992, his wife, acting in her capacity as legal representative

of her husband's estate, executed a Form of Discharge which settled her
husband's action against the defendant on payment to the estate.

On 21 May 1992, she and three other defendants commenced

proceedings. She pleaded her husband's injury in the 1988 accident, the
defendant's negligence and her husband's death as a result of the injury. By
way of defence the defendant pleased the execution of the Form of
Discharge which settled action in 1989. Mrs Kupke took summons to
answer the question whether Form of Discharge in respect of action 101 of
1989 constituted a bar to the present action
Held

Action can only be brought if the deceased could have successfully

maintained an action had he not died/been killed. If the deceased had
already been compensated and discharged all claims or convenated away his
rights not in a position to maintain an action

Lord Campbell's Act established a new action - not connected with the estate
of the deceased. Merely says that the nominal person to bring the action on
behalf of certain relations shall be the executor/administrator so an action
brought by the person designated by the statue is brought in an entirely
different right from that in which the action is brought by the executors
generally as representing the estate of the testator or intestate

The deceased's action had not been concluded at his death. At the time of
the death, there was a title in the deceased to enforce the liability, so that Mrs
Kupke could establish that condition precedent to the right of action given to
her and her children by Lord Campbell's Act
o
Because 101 of 1989 was proceeding at the time of the death of Mr Kupke,
there is nothing in ss 12, 13 and 14 of the CL Practice Act (Lord Campbell's
Act) which prevents Mrs Kupke with proceeding
Even though the defendant settled his own action, this did not deprive
the relatives of their action. This was because the deceased's
action did not conclude at his death and so his relatives could
maintain an action.

d)

Causation: death caused by a wrongful act; no

requirement that death of the accident victim be
reasonably foreseeable? Not foreseeable in a precise
way (not specific)

Haber v Walker [1963] - SUICIDE

Principle of law: It is a question of fact depending on the circumstances of the
particular case whether an intervening act or event is sufficient to
break the causal connection between the defendant's negligence and the
plaintiff's damage.

Facts

Plaintiff brought an action for damages under s16 of the Wrongs Act 1958 (Vic)
on her own behalf and that of her children after the death of her husband. He
had been seriously injured in a car accident caused by the negligence of the
defendant.

He had suffered severe brain damage, developed extreme depression and

committed suicide 18 months after the accident. The jury found that his
death was caused by the accident, but that his suicide was not reasonably
foreseeable by the defendant. The jury also found that at the time of his
suicide, he knew the nature and the quality of his act but he did not know
what he was doing was wrong.

At trial: judgement for the plaintiff. Defendant appealed to the Full Court.
Held

Plaintiff must establish that the deceased's death was caused by some act,
neglect or default of the defendant. The fact then which the plaintiff must
establish is that the deceased's death by suicide was so caused. It does not
have to be the natural and probable result of the act or the direct result of
the act or any similar phrase.

To hold that the conscious act even of a sane person necessarily breaks the
chain of causation is inconsistent with the decision in Chapman v Hearse whether there is a novus actus is "Very much a matter of circumstance and
degree" and a question of fact

Only in actions of negligence that there is reasonable foreseeability of

damage as laid down by the decision in The Wagon Mound
o
"Wrongful act" to which is referred may be a tort to which the
requirements of r.f. of damage are inapplicable

A wrongful act or omission cannot ordinarily be held to have been a cause of

subsequent harm unless that harm would not have occurred without the act
or omission having previously occurred with such of its incidents as rendered
it wrongful. Exceptions to this first principle are narrowly defined. Secondly,
where the requirements of this first principle are satisfied, the act or
omission is to be regarded as a cause of the harm unless there intervenes
between the act or omission and the harm an occurrence which is necessary
for the production of the harm and is sufficient in law to sever the causal
connection.

Deceased's act in hanging himself was not for the purposes of causation a
"voluntary" act if the deceased, as a result of the defendant's negligence, was
acting under the pressure of a mental disorder
o
He was unable to earn his living i.e. one-sided facial paralysis, grossly
distorted vision. He was greatly distressed by his grotesque appearance,
mental and physical impairment and incapacity to earn money to
support his family

Unreasonable to assume that he had a free choice whether to be distressed

or not, or that he engaged in brooding which was not occasioned by his
injuries. Evidence showed further that he suffered at intervals from fits of
deep depression and developed a fixed idea that no improvement in his
position was possible, and this state of mental disorder continued until a
short time before his suicide: insane

Irresistible that his insanity was caused by his injuries, and when he
killed himself the insanity so caused had deprived him, not only of free
choice, but of all real power of choice, whether to live or die
o
Act of suicide was not voluntary and left unbroken the chain of causation
between defendant's negligence and the death
ONLY NEED TO SHOW CAUSAL LINK WITH WRONGDOER'S ACT AND DEATH.
No questions of reasonable foreseeability.
Mere fact that the act is voluntary doesn't mean that it is a novus actus
(March v Stramare). Clear link with injuries, depression and suicide.

Lisle v Brice [2002] 2 Qd R 168

e)

Damages: loss of reasonable expectation of

financial benefit arising from the family relationship,
including loss of domestic services, no account to be
taken of the receipt by the dependants of insurance
proceeds, superannuation benefits or social security
entitlements (s3(3)); surviving spouse's prospects of
remarriage or forming a new continuing relationship?

Franklin v South Eastern Railway Co (1858) 157 ER 448

Burgess v Florence Nightingale Hospital for
Gentlewomen [1955] 1 QB 349

Services you claim for and say you've lost in compensation to relatives
claims must be family claims and not business benefits
Can get family loss of income for loss of family business member but not
the loss of the business services
Plaintiff who lost wife who was his dancing partner: loss of income
framed as a loss of family member not business loss

Nguyen v Nguyen (1990) 169 CLR 245

Principle of Law: Damages in a fatal accident claim may include the value of the
domestic services provided by the deceased even though the surviving
spouse or other family members bringing the claim do not intended to replace
those lost services with paid outside assistance.
Facts

Plaintiffs claimed damages arising from the death of Nu Thi Nguyen. The
deceased died as a result of injuries received when a motor car, driven by the
defendant, in which he was a passenger, left the road and collided with a
power pole. The plaintiffs were the husband of the deceased and their two
children. Negligence was admitted and award of damages proceeded apportioned to husband and two children.
o
Total sum was arrived at as an assessment of the value of the housekeeping
services lost to the family as a result of the death of the deceased, to cover
a period ending upon younger child attaining the age of 16

Husband has not engaged anyone to perform the housekeeping services

for himself and children and does not intended to. He has done them himself.
The wife never worked and husband has not worked apart form a short initial
period. The family has depended on unemployment benefits and after the
death of the wife, supporting parent's benefit.

Defendant appealed the damages because they were to be performed by

husband at no cost. The damages were reduced.
Held

Gibbs J in Davies v Powell Duffryn Associated Collieries Ltd at p230 - the

fact that a husband does not intend to replace the services "does not mean
that they have no value. It merely shows that he is prepared to use his own
time and labour instead of expending money in the circumstances"

Gratuitous services in Griffiths v Kerkemeyer - but this was to do with

physical disability: in accordance with the accepted principle to assess part of
that loss by reference to the cost of services required to satisfy the need for
which disability gave rise. Novelty lay in giving the plaintiff the cost of the
services even though he had not paid and would not pay for them, so he and
not the defendant reap the benefit.
o
Contrast: Lord Campbell's act is a claim for recompense for some tangible
advantage lost by reason of the death of the deceased

 Commonly loss in loss of financial contribution made by the deceased to the

household - "loss of a breadwinner"
But deceased could have also made contribution to services rather than money
for which damages recoverable whether or not a pecuniary value can be
placed upon them

A husband claiming for the loss of housekeeping services by reason of

the death of his wife may have no need of those services in that he may be
able to perform them himself. But if he has suffered the loss he is entitled
to recover for it, and does not matter whether he intendeds to use
damages to replace the services or not

Damages to be assessed are those suffered by the plaintiff and cannot

always be equated with the cost of such help: the services formerly rendered
by a deceased wife may not be capable of being reproduced faithfully by
services which are commercially available and the scope and cost of the only
services commercially available may be disproportionate in comparison with
the scope and value of services actually provided by the deceased wife
o
In circumstances such as these it will not be reasonable to regard the cost of
substitute services as any more than a starting point in assessing a plaintiff's
lost. Indeed, in cases where the disproportion is severe, the cost of
commercially available services may indeed offer no real guide at all

If the children take up the household duties, only because of the death of
the parent, that will not reduce the total loss and it is irrelevant that the
services do not need to be replaced by someone outside the household

Appeal allowed

De Sales v Ingrilli (2002) 212 CLR 338

Principle of Law: In the assessment of damages in a fatal accident claim by the
surviving spouse or family partner of the deceased accident victim, no
separate deduction is to be made for the prospect that the surviving
spouse or family partner, to his or her financial advantage, might
remarry or form a new continuing relationship. This contingency may
be taken into account, with all other relevant contingencies, in the
deduction for general contingencies or the vicissitudes of life but not as so
as to increase the deduction.
Facts:

The plaintiff was aged 27 at the date of an accident in WA caused by the

defendant (Respondent's) negligence in which the plaintiff's husband was
killed. In respect of her husband's death, the plaintiff brought an action for
damages in the District Court of WA under the Fatal Accidents Act 1959 (WA)
on behalf of herself and two infant children

Nine years after the accident, when plaintiff was 36 and had not
remarried or formed a new continuing relationship and children were 12 and
9, the primary judged assessed the plaintiff's share of damages on the basis
that there should be a deduction of 5% on chance of her of "obtaining support
from remarriage"
o On appeal and cross-appeal, the Full Court of the Supreme Court of WA by
majority held that the deduction for the plaintiff's "prospects of remarriage"
should be increased to 20% plus further deduction of 5% for the general
contingencies of life

Plaintiff appealed contending there should have been no deduction from

her share of damages on account of her prospects for remarriage and that
the Full Court erred in allowing further deduction for the "general
contingencies of life"
Held:

Society has changed since Lord Campbell's Act was enacted - with the
nature and durability of relationships, in the labour market, and in the
expectations that individual members of society have for themselves and
about others

To assess the pecuniary loss that the death has caused the relatives, it is

necessary to take account of what may have happened in the future had the
death not occurred and as well to take account of what may happen to the
relatives in the future even though the death has occurred -"vicissitudes of
life" are "very much a matter of speculation" best that
can be done is to assess a sum which will, as far as the limits implicit in the task
will permit, represent the value of that loss
o
How is account to be taken of life's uncertainties? Possibilities that may have
to be reflected in any assessment of the present value of the economic loss
suffered by all of the relatives as a result of the deceased's death, not just the
surviving spouse

Requires an estimation and judgement rather than calculation, seldom to

represent the result as if correct to the nearest dollar

Why should one possibility (remarriage, or formation of other continuing

relationship) be considered separately from all others? To consider it
separately assumes that it is a contingency whose likelihood of occurrence
can be separately assessed with reasonable accuracy, and the financial
consequences of its occurrence will tend in one direction rather than the
other (financial advantage)
o
Both these assumptions flaws - seldom will court be able to make useful
prediction of when humans form close emotional ties

Even if difficulties of predicting that a surviving spouse will form some

new continuing relationship were to be surmounted, the financial
consequences of occurrence are less predictable. Who is to say new
relationship will ensure and if endures, provide financial advantage to the
person who is now the surviving spouse?
o
Any new union is exposed to the same kinds of danger and hazard as the
earlier union
o
It is therefore wrong to treat the prospect of remarriage or the prospect of
forming some new continuing relationship as a separate item for which
some identified discount must be made of the present value of future
benefits that would have flowed from the deceased to the relatives

Cannot be assumed that any new union will be or will remain of financial
advantage to any of those for whose benefit action is brought

Nor can the prospect of remarrying or forming a new relationship

properly be seen as a matter which, under the heading of "vicissitudes of
life" enlarges the discount which otherwise must be made from the present
value of the benefits which deceased providing at death
o
Discount can only be assessed as a sum which reflects all of the
possibilities

If there is evidence that a surviving spouse intends, at the time of trial, to

establish a relationship with an identified person, account may be taken of
evidence of probable financial consequences of the relationship
Cannot be said, on the balance of probabilities, whether, having regard
to the whole of the period which must be considered, that
relationship would be to the financial advantage or disadvantage
of those relatives of the deceased for whose benefit the action is
brought l as a general rule, some allowance should be made for the
various possibilities that impact upon the assessment of the
pecuniary loss suffered in consequence of the wrongful death
of a partner and/or parent l The discount should make an allowance
for various contingencies, including the prospect of the
appellant's entering into a permanent relationship which is to her
financial benefit.
f)

Contributory negligence in Compensation to Relatives Acts claims

Law Reform (Miscellaneous Provisions) Act 1965 s 13

No action for damages for the dependants is defeated by the contributory

negligence of the deceased person and damages in such an action not
reduced by reason of contrib. negligence or breach of statutory duty of the
deceased person

Civil Liability Act 2002 (NSW) s 5S

Court may determine 100% reduction if they claim reasonable to do so

Civil Liability Act 2002 (NSW) s 5T

does not mention stautory

Reverses s13 of the Law Reform (Miscellaneous Provisions) Act

Damages can be reduced under Compensation to Relatives Act

Criminal conduct can be 100% defence if by 6 months or more.

Effective contractual exclusion clause: buy a ticket for ferry, before you get on
there is an exclusion clause.
If contrib cause 5T overalls Law Reform Act 1965 s 13

Survival of causes of action in tort after death

PERSON DIES DUE TO THEIR INJURIES:
Person is injured and dies from natural causes, can potentially have claim under
1944 act but not under compensation to relatives. But if vice versa, only
compensation to relatives, no survival claim (can maybe only recover funeral
expenses).

At common law, the death of either the victim of a tort or the one liable to it
led to a cesser of the cause of action: principle circumstance in which it is
likely to be availed of is that in which the victim has suffered personal injury,
and hence considered at this juncture
o Doesn't have to be foreseeable
Action vested in deceased

In all cases in which a cause of action survives for the benefit of the
victim's estate, the latter may recover the pecuniary losses suffered by the
victim in the period between injury and the death (estate may recover the
amount of victim's earning capacity lost during that period, cost of medical,
nursing expenses, value of voluntary services)

Claim of exemplary damages dies with the victim

Where the death occurs from a cause independent of the accident which
gave rise to the cause of action, the legislation in all jurisdictions other than
Qld, SA/WA allows the estate to maintain action for non-pecuniary harm
suffered by victim between time of accident and date of the death

Allows recovery by the estate of the funeral expenses of deceased

Action subsisting against a deceased

All actions subsisting against a tortfeasor survive his or her death apart
from that for defamation. And whereas a claim for exemplary damages may
not be continued if the plaintiff dies, may still be pursued if it is the
defendant who dies

In case of a road accident - tortfeasor dies before the victim. Absence of

statutory provisions to the contrary, the dependants of the victim would be
precluded from pursing a claim. But the survival of actions legislation
provides for this eventuality thus ensuring recovery to the dependants
whatever (possibly coincidental) order in which victim/tortfeasor die
a) Abolition of the common law rule action personalis moritur cum persona (a
personal action dies with the person)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s2(1), (4), (5)

b) Damages recoverable in a "survival action"

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)

S2(2) - all that can get in "survival" claim is medical expenses up till death,
loss of earnings (funeral expenses included) until death of victim
Money goes to the estate so eventually to who the plaintiff left his or her
money to i.e. could be family member

Action for the loss of consortium

a) Common law rule
State Rail Authority v Sharp [1981] 1 NSWLR 240
b)

Abolition of the common law rule

Does not have any effect on compensation to relatives act - they can sue for loss
of services such as loss of domestic services etc.

Law Reform (Martial Consortium) Act 1984 (NSW) s3(1)

CLA replaced this - No longer cause of action for loss of consortium.

Roads and Traffic Authority v Jelfs (2002) Aust Tort

Reports 81-583
Principle of Law:
The statutory abolition in NSW, Tasmania and Western
Australia of the ancient common law right of a husband to maintain an action
for loss of consortium against a wrongdoer who has injured his wife does not
affect the right of the family members of a fatal accident victim to
recover damages, under the fatal accidents or compensations to relatives
legislation for loss of the deceased's domestic services.
Facts

Mrs Jelfs, the respondent (plaintiff's) wife, died as a result of an accident

caused by the appellant's (defendant's) negligence

The respondent successfully brought two proceedings in respect of wife's

death -a claim under the Comp for Relatives Act for the benefit of himself
and the two teenage children of the marriage as dependants of the deceased
and a claim for nervous shock (psychiatric injury) in respect of the
depressive illness suffered by the respondent as a reaction to his wife's
death.
o In respect to the Compensation action, the trial judge awarded the
respondent damages for "past and future care" comprising 20 hours
per week of domestic services, including cooking, cleaning, washing
and gardening, which would have been provided to the respondent
by his wife

On appeal, appellant argued that award of damages for "past and future
care" or domestic services contrary to s3(1) of the Martial Consortium Act
1984
Held

Consortium act addresses a single issue - the husband's common law

action for consortium. That and that alone was abolished. The action for loss
of or impairment to consortium was a single cause of action, unavailable in
relation to the death of the wife, which compendiously recompensed the
husband for loss of a congeries of rights/benefits
A husband's statutory right to recover damages flowing from the death
of his wife cannot be equated with the action for loss of consortium
Baker v Bolton - husband's action for damages for loss of consortium.
Damages do not lie where the tort kills the wife rather than simply maims
her
Consortium Act addresses an entirely different universe of discourse
from the Compensation to Relatives act
Appeal Dismissed

You can still get damages for loss of services under Comp of Relatives Act which is
different to loss of consortium

Action for loss of services

Recover direct damages - cost of retraining someone, cost of replacing someone in
the position etc.
Where a person is injured, the family of the injured victim have no action
in relation to that person's services.

a)

Common law right of an employer to recover

damages for the loss of services of an injured
employee.

Commissioner for Railways (NSW) v Scott (1959) 102

CLR 392
Principle of Law: The ancient common law right of an employer to maintain an
action for loss of services against a wrongdoer who has injured his or
her employee is not confined to cases of domestic or household
employees but is available in all cases where there is the relationship of
employer and employee.
Facts

Appellant sued the respondent for damages alleging that the respondent
by negligence had caused injuries to a train driver employed by the appellant
in the railway service and through those injuries the appellant had lost the
services of the driver over a period of time
o Driver had been paid his salary during his absence from duty and
the cost of medical treatment

District Court found for appellant and granted damages. Respondent

appealed to the Full Court of the Supreme Court of NSW on grounds which
raised only the question whether there was such a relationship with the
appellant and driver at time injuries occurred as would support the action.
Full court allowed appeal. Appellant appealed.
Held

The action per quod servitium amisit lies whenever the plaintiff and the
person injured by the wrongdoing stood to one another at the time of the
injury in the relation of master and servant
o Employment of the Commissioner as employment creates the
relationship of master and servant which supports action

The word in law has always embraced many persons who are not
domestic servants

In general, moneys which a master became legally obliged to pay to or

for his servant by reason of an injury incapacitating the servant are

recoverable by the master in an action against the wrongdoer and that the
only form which such an action could take would be the common law action
per quod servitium amisit, such damages being consequential upon the loss
of servitium
Appeal allowed

G/O Australia v Robson (1997) 42 NSWLR 439

Principle of law: The decision of the High Court of Australia in Commissioner for
Railways (NSW) v Scott remains the authoritative statement of the common
law of Australia on the right of an employer to recover damages for
the loss of services of an injured employee.
Facts:

Nowlin Pty Ltd carried the business of a taxi operator and employed Mrs
Margaret Craig as a driver. While driving one of Nowlin's taxis, Mrs Craig was
injured in a motor accident allegedly caused by the negligent driving of
Robson (the respondent)

Nowlin commenced proceedings against the respondent claiming that,

as a result of the injuries suffered by its employee, she had been unable to
work for Nowlin and Nowlin had been deprived of her services as a driver
with consequent loss of income and profits. The respondent was insured
"against liability in respect of . injury to a person" under a compulsory third
party policy issued by GIO Australia Ltd

Appellant refused the respondent indemnity under the policy. Supreme

Court believed that the third party policy issued by the appellant to the
respondent entitled him to indemnity in respect of Nowlin's claim for the loss
of Mrs Craig's services. On appeal the appellant contended that the law of
NSW should no longer recognize action for loss of services.
Held:

While an action for loss of consortium of a husband or wife was

abolished, the action per quod servitium amisit was not

Appeal dismissed

b)

Partial abolition of the common law right

Employees Liability Act 1991 (NSW) ss 3-6 (where the act applies,
an employee is not liable for causing loss of a fellow employee's
services)

Looks at indemnity, the relationship with employer and employee

S4 - gets rid of liability of one employee injuring another employee

Motor Accidents Compensation Act 1999 (NSW) s 142

No damages awarded for loss of services for a motor accident, but can
bring claim under the Compensation to Relatives.

If motorist injuries someone's employee, master does not have action.

c) Impact of Civil Liability Act 2002 (NSW)
Chaina v Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533:
statutory cap on damages for loss of earnings not applicable to claim by
employer for loss of injured employee's services.

Action by the family company for loss of their services: not personal
injury, so not subject for caps of liability
o School is potentially even 'more liable'

Jacks liability to julies nerbous shock which resulted from hugos assicent sterms
from a 3(1) and 4(1) of the Law Reform (maiscellaneous provision Act 1944
(NSW) *The Act. The act covers nervous shock, arising from seeing or
hearing a family member be injured. Juelie is hugos wife, tgys satisifying the
family relations criteria in s4(5) of the Act. S 3(1) of the Act means tahat Julie
shall not be prevented from recovering damanges merely because the injudty
she complained of arose from nervous shock. In order to succeed in such a
claim, in accordance with s4(1) of the Act, Julie will have to prove that:
1. Jacks act, neglect or default
2. Led to hugo, as Julies spouse, being injured and
As a result of hugos injust, Julie being within sigbt of Hugo at the time he was
injured, suffered nervous shock. Julie is likely to succeed in this claim, as Hugo, was
the victum of battery (established above) while she was watching the cricket match,
and as result went into nervous shock.
Has to be more specific specifics of the Act

Although not a binding authority in Australia, we look overseas to see if

there is persuasive precedent especially from the judgements of our
previous Mother Country

Barclay v Penberthy
-

A right endorsed by the HC in Comm for Railways v Scott, contines to form

part of common law of Aus.

Aircrash
2 killed, 3 injured
Negalant piloting and negligent design by Barclay

Negligence - Personal injury claims for 3 injury

Comp to relative claisms for 2 death by 2 spouses
Loss of services
Surivial claim

Where you have someone who dies you cant being claim for loss of surives under
Bake rand Bolton if they are injured you can bring a claim for loss of survives but
that will expire upon their death

Chaina v Presbyterian Church (NSW) Property Trust

(No.25) [2015] NSWSC 518
statutory cap on damages for loss of earnings not applicable to claim by employer for loss of
injured employees services.