Has your spouse or parent died in an accident?
What compensation can you receive?
Compensation claims can be made by both the spouse and any dependant children of the deceased. The amount that can be claimed will depend on the deceased’s anticipated earning capacity.
A separate claim may also be made by a spouse or child of the deceased if psychiatric injury has been caused. The amount of compensation that can be claimed will depend on the impact that psychiatric injury has caused to the individual person, including on their ability to work.
A claim can also be made for funeral expenses.
So what are your chances of winning your case?
Every case is unique, but a key determining factor is the quality of the claim we present for you proving what financial support the deceased would have provided to their dependants.
Several factors can impact your chances of winning a fatal accident claim, including:
- Proving negligence caused the death.
- The strength of the evidence supporting earning capacity of the deceased.
- In the case of psychiatric injury, a report from a psychiatrist diagnosing a psychiatric disorder caused by the death. We can arrange an assessment by a psychiatrist.
What fees are involved?
At MKF Lawyers, we operate on a ‘no win, no fee’ basis, so if your claim is unsuccessful you do not pay our legal fees. There’s no cost to reach out and have an initial chat about your case. We work on a no win no fee basis for most personal injury claims occurring in Adelaide. This means that you do not pay our legal fees in the event your claim is not successful. We usually work on a no win no fee basis for claims relating to motor vehicle accidents, childhood sexual and physical abuse, dog attacks, public liability, medical negligence and total and permanent disability (TPD).
How long does the process take? What’s involved?
The time it takes to resolve a fatal accident claim can vary and depends on several factors, such as:
- The complexity of the case.
- The availability of evidence.
- The willingness of parties to reach a settlement.
- The need for witnesses or testimony.
- Whether the case goes to trial.
These types of claims arise in various circumstances with the most common being death caused during the course of work or a motor vehicle accident. We have also assisted clients with deaths as a result of murder and medical negligence. In cases arising from motor vehicle accidents or medical negligence, there needs to be a finding of negligence in order for the claim to succeed. In all cases, it is only worthwhile proceeding if the deceased person has financial dependants reliant on their income. This can include a spouse, even if the spouse is also working, and children that can demonstrate they are financially dependent. For children, this can usually be demonstrated if they are under the age of 18 but in some cases can be for children above this age.
The time limit for this type of claim is three years from the date of death. The time limit can however be extended by the Court, and the Court may do so if there was a coronial or other investigation into the death and the findings were delivered after the three year time limit.
The purpose of the claim is to compensate for the financial support that would have been provided by the deceased.
Motor Vehicle Accident Claims
If you or someone you know was financially dependent on a person killed in a motor vehicle accident, a dependency claim may be made for compensation to cover the financial support that person would have provided if they were not killed in the accident. It is necessary to prove that another person is at fault for the accident. The compulsory third party (CTP) insurer for the negligent driver will respond to the claim. It is necessary to complete a claim and submit a compliant claim form to the CTP insurer in respect of the claim within 6 months of the accident.
It is also necessary to issue documents in Court within three years of the accident to protect the claim from becoming statute barred if the claim is not resolved beforehand.
A claim for funeral expenses can also be made and often the CTP insurer will pay or reimburse those expenses at the start of the claim, so long as there are no liability issues. That is, there is no question about who is at fault for the accident. In certain circumstances, a personal injury claim can also be made by a person closely connected to the deceased if they can demonstrate that they have suffered a psychiatric injury as a result of the accident and death caused.
Medical Negligence Claims
If you or someone you know was financially dependent on someone killed as a result of medical negligence, a dependency claim may be made for compensation to cover the financial support that the person would have provided if they were not killed by the negligence. In order to bring a medical negligence claim, it is necessary to prove that:
- The treatment provider owed a duty of care.
- The treatment provider breached their duty of care.
- The treatment provider’s breach of duty of care caused the death.
Compensation for medical negligence may be sought as a result of death caused by a treatment provider (including medical staff at a hospital):
- failing to properly investigate or diagnose an injury or illness.
- failing to provide adequate treatment to address an injury or illness.
- causing injury during the provision of treatment or surgery.
Just like you have home or car insurance, a treatment provider has insurance in case they make an error. This means that when a claim for death caused by medical negligence is made, it is not the treatment provider that pays the compensation. Instead, if the claim is successful, the treatment provider's insurer will pay the compensation, along with a contribution towards your legal fees and the legal fees of the solicitors engaged to respond to your claim.
In certain circumstances, a personal injury claim can be made by a close family member of the deceased in addition to a dependency claim if it can be demonstrated that they have suffered a psychiatric injury as a result of the death caused. A claim for funeral expenses can also be made.
It is necessary for you to provide notice of your claim, in compliance with the Court Rules. There is specific information that you are required to provide in the notice so you should contact us to assist. That notice needs to be provided within 6 months of the date of the deceased's death.
A three year time limit applies for any claim made for death caused by medical negligence.
If you or someone you know was financially dependent on someone killed as a result of the actions or negligence of another person, a dependency claim may be made for compensation to cover the financial support that person would have provided if they were not killed. The lawyers at MKF Lawyers have had experience in bringing compensation claims for losses suffered as a result of murder. The claim is brought personally against the person found to be guilty for the murder or manslaughter. These claims can be pursued where the guilty person has assets and you can apply to the Court to freeze those assets while the claim is being pursued.
It is necessary for you to provide notice of your claim, in compliance with the Court Rules. There is specific information that you are required to provide in the notice so you should contact us to assist.
Personal Injury Lawyers Adelaide
Frequently Asked Questions
How can I prove that I was financially dependent on the deceased person?
A person can show financial dependence in a variety of ways. As a starting point, it is the deceased person’s spouse/domestic partner, parent or child that will have the best standing to make a claim if they can demonstrate financial dependence on the deceased. Financial dependence may be shown by providing evidence of the deceased paying for accommodation, loan/mortgage repayments, rent, food, medical treatment, utilities costs and living expenses for your benefit and/or the benefit of another person, such as a child.
Please talk to us about your specific situation so that we can provide advice about whether it will be possible to prove that you or another person was financially dependent on the deceased.
Can members of a deceased person’s family make a claim for pain and suffering and treatment costs?
Generally, pain and suffering and treatment costs are not paid to a person grieving the loss of the deceased.
Depending on the specific circumstances of the matter, a close family member or a person witnessing the death of the deceased person may be able to make a claim for psychiatric injury. If a psychiatric injury claim can be made out, a claim for pain and suffering and treatment costs can be made.
Is it necessary for the person that caused the death of the deceased person to go to jail in order for a compensation claim to be made?
No, the person that caused the death of the deceased does not need to be convicted and sentenced to imprisonment for a dependency claim, or a psychiatric injury claim, to be made.
How do legal fees work?
We act on a no win no fee basis on almost every case. The only time we wouldn't offer a no win no fee, is when a client wants to pursue a claim that we don't believe has a reasonable prospect of success.
No win no fee means that payment of our legal fees is not required until your claim has resolved and compensation is paid. The amount of our legal fees will be different in every case and we will provide you with an individualised estimate following our first detailed communication.