In what has become Australia’s deadliest year on the roads in a decade, we are witnessing a heart-breaking surge in fatalities that has left countless families shattered by the loss of loved ones. Here, Attwood Marshall Lawyers Compensation Law Senior Associate Henry Garrett looks at the latest road toll data released by The Australian Automobile Association, and explains how an experienced compensation lawyer can help affected family members access meaningful compensation.
The Australian Automobile Association (AAA) revealed its latest ‘Benchmarking the Performance of the National Road Safety Strategy 2021-2030’ Report, that shows deaths on Australian roads increased by 11.7 per cent in the past year. Across the nation, 1,310 people lost their lives in the year to 30 June 2024. The worst affected states were the Northern Territory which saw the number of deaths double year on year, whilst New South Wales fatalities increased by nearly a quarter. Other parts of the country saw deaths increase by close to 9 per cent.
When The Federal Government handed down their 2024-25 Federal Budget earlier this year, it included funding to support Australian motorists. This funding allowed for new emissions regulations, electric vehicles, and most importantly infrastructure investment.
However, the Federal Government has asked each state and territory to provide previously withheld safety data to show where the need for road funding is most necessary before releasing such funds.
At this stage, Queensland and New South Wales are the only states to express their support for sharing their data with the Federal Government on motor vehicle crashes, traffic policing and road conditions.
It’s time for all states and territories to step up and drive real change to prevent anymore unnecessary deaths on our roads.
Motor vehicle accidents don’t just impact those involved, but completely alter the lives of the loved ones who are left behind.
If you have experienced significant loss because of a loved one being killed in a motor vehicle accident, it’s important you understand what compensation is available to support you and your family.
Understanding compensation available when losing a loved one in a motor vehicle accident
When a loved one is killed in a motor vehicle accident, the family members and “dependants” of the deceased can bring a compensation claim against the Compulsory Third-Party, or CTP, insurer of the vehicle at-fault for the accident.
CTP insurance covers any claims for personal injury or fatalities arising from a vehicle at fault and is part of the registration fee we pay on our vehicles each year. To be eligible to make a claim for compensation as a dependant, you usually need to either be the deceased’s::
- Spouse;
- De Facto Partner;
- Parents;
- Grandparents;
- Children (including step-children)
- Those financially dependent on the deceased.
Common misconceptions
Australia does not have what is called a “wrongful death claim”. Unlike America, Australian law does not allow for multi-million-dollar lawsuits to compensate surviving family members for the loss of their loved one. Rather, a “dependency claim” is made for the dependant’s loss of financial support and services that the dependant would have received from the deceased if the fatal accident had not occurred.
To make a motor vehicle accident fatality “dependency claim”:
- You must be able to prove you were dependant on the deceased for financial support and/or services (e.g. care, support, housework, domestic/personal tasks); and
- The deceased cannot be the ‘at fault’ driver, meaning they cannot have caused the accident.
What compensation can be claimed?
When calculating damages, the court will consider the following:
- The length of your relationship to the deceased;
- The extent of your dependency on the deceased to provide you with financial support and services;
- The extent of the deceased’s contribution towards household or living expenses;
- The deceased’s loss of income; and
- Funeral expenses.
A dependency claim is typically brought as a single claim by one dependant on behalf of all dependants. For example, the deceased’s spouse may bring a claim on behalf of themselves and the deceased’s children.
Time limits
In Queensland, a compliant claim form must be served on the CTP insurer of the at-fault vehicle within nine months of the accident or within one month of consulting a solicitor. If these time limitations are not met, a reasonable excuse for delay must be provided to the court. The claim must be commenced in court (or otherwise time limit protected) within three years of the accident or the entitlement to claim will be extinguished.
In circumstances where the at-fault vehicle is unregistered, uninsured, or unidentified, a compliant claim must be served on the Nominal Defendant, (a statutory body which acts as the CTP insurer) within three months of the accident (or otherwise a reasonable excuse for delay must be provided). A compliant claim must be served on the Nominal Defendant within nine months of the accident or the entitlement to claim will be extinguished. The claim must thereafter be commenced in court (or otherwise time limit protected) within three years of the accident or the entitlement to claim will be extinguished.
Minors (under the age of 18) typically have three years from their 18th birthday to commence a claim in court, rather than three years from the date of accident in which to bring a claim. Nonetheless, it is always in a claimant’s best interest to obtain legal advice at the earliest opportunity available to ensure their rights are protected.
Similar time limits apply in all other states and territories in Australia. The main issue is to complete a ‘claim form’ and lodge this with the CTP insurer of the vehicle at fault. Not only will this resolve any time limit issues, it also sets in motion payment of treatment and rehabilitation expenses by the insurer, as well as payment of weekly benefits in some jurisdictions. It is therefore critical that anyone involved in an accident obtains prompt legal advice from an experienced compensation lawyer. Most compensation lawyers act on a ‘no win no fee’ basis, so there is no monetary outlay to engage the lawyer to act on your behalf.
Example Case Study
The “bread winner” of the household is fatally injured in a car accident. The deceased was a schoolteacher earning $1,000 per week, with a wife and two young children living together on a 5-acre property in Mudgeeraba.
Loss of Financial Dependency
The dependants of the deceased would be entitled to claim for their loss of dependence on the deceased’s expected earnings until the deceased’s usual age of retirement. In this example, the dependants would be entitled to make a claim for expected $1000 per week brought in by the deceased person, plus superannuation. The sum would then be apportioned between the amount of income that the deceased would likely have spent on themselves (not claimable), and otherwise spent on the spouse and each child. Each dependant will be apportioned a percentage of the overall loss of financial dependency claim.
Typically, a spouse will be entitled to make a claim for financial dependency until the deceased’s expected age of retirement, whilst each dependant child would be entitled to claim financial dependency until their 18th birthday (unless they were likely to undertake study and require financial dependency to the age of 21).
Loss of Services and Assistance
The dependants would be entitled to claim for their loss of services that the deceased would have provided to the dependants had the fatal accident not occurred. This typically includes a claim for the housework, chores, driving, yard work, maintenance, and similar care and support that the deceased would have provided to the dependants. Again, the claim would be apportioned between each dependant according to each dependant’s likely period of dependency and rates of dependency.
Funeral Expenses
The family would be entitled to claim the cost of funeral expenses.
How it Works
The dependants and the CTP insurer of the at-fault vehicle can negotiate a suitable settlement of the dependency claim between themselves (i.e. out of court). Alternatively, the dependants can progress the matter to trial to be determined by a judge.
Once a suitable settlement or court award is determined, the total monetary value of the claim (i.e. loss of financial dependency and loss of services) is then apportioned between each dependant according to their individual levels of dependency, age, and particular circumstances.
For adult children, spouses and dependants, they are typically paid their portion of dependency claim funds within 8 weeks of the resolution of the claim.
For children and dependants under the age of 18 (or who suffer a legal incapacity), their portion of dependency claim funds are typically sent to the Public Trustee or a private trustee to be managed on their behalf until they reach the age of 18 and are no longer under a legal incapacity.
Generally, dependant children are paid their portion of funds by the trustee when they reach the age of 18. The CTP insurer is liable to pay additional funds for the trustee’s reasonable management and administration funds in managing those funds for the dependant’s benefit until they reach the age of 18.
“Nervous Shock” Claims
An additional compensation claim can be made on behalf of any immediate family members who suffered a recognised psychiatric injury (aka “nervous shock”) when witnessing or responding to the fatal accident. Loved ones often suffer psychiatric conditions in response to the trauma of a road accident fatality. In these circumstances, they are entitled to bring a claim for their losses (e.g. general damages, income loss, treatment costs, care and assistance requirements).
WorkCover ‘journey claim’
If the fatal accident involves a worker while at work or travelling to or from work, there will also be a claim for death benefits against WorkCover Queensland which involve payments to the surviving spouse and children of the deceased based on the wages of the deceased worker. There are also lump sum amounts available to the dependant family members.
Importance of Obtaining Legal Advice
Dependency and nervous shock claims are often difficult and extremely complicated matters to resolve. It is vital to obtain expert legal advice as early as possible, not only to ensure your rights are protected but to alleviate the stress and upheaval associated with trying to deal with the tragedy and the immediate loss of financial support and services that the deceased would have otherwise provided.
Attwood Marshall Lawyers – helping injured motorists and their families for over 75 years
Our compassionate lawyers practice exclusively in compensation law and are trained to handle the complexities of fatal motor vehicle accident claims.
If your loved ones have been involved in a fatal motor vehicle accident and you need advice and support on what to do next, please contact our friendly team by contacting Compensation Law Department Manager, Tyra Hall, on direct line 07 5506 8261, email thall@attwoodmarshall.com.au or call our 24/7 phone line on 1800 621 071 any time.
Our compensation lawyers are available for appointments at any of our conveniently located offices at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
Support is available:
If you have experienced a traumatic event or lost a loved one, there is support available.
- Beyond Blue: Call a counsellor or chat to one online. 1300 224 636 or visit beyondblue.org.au
- Griefline: Griefline offers free phone support services nationwide, 7 days a week. Call 1300 845 745.
- Lifeline: For free counselling and support 24 hours a day, 7 days a week, call 13 11 14.
