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Losing a family member is an emotionally devastating experience. When that loss occurs due to someone else’s negligence or wrongful actions, the pain can be compounded by feelings of injustice and anger. During such a difficult time, understanding your legal rights to compensation can provide both a sense of justice and the financial support needed to move forward.
In Australia, various legal pathways exist for family members to seek compensation after a loved one’s death due to negligence. While no amount of money can replace your loved one, compensation can help cover funeral expenses and lost financial support, as well as acknowledge the emotional suffering experienced by surviving family members.
In this article, we’ll explore who is eligible to make a claim, what compensation may cover and key considerations for medical negligence claims. We will also look at important past cases as well as how experienced legal representation can guide you through this challenging process.
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When a family member dies due to negligence or wrongful actions, surviving relatives may have several legal avenues available to seek compensation, including:
When a person dies due to alleged negligence, the right to seek compensation does not automatically end with their death. Australian law acknowledges that surviving family members may have relied on the deceased for financial, emotional, or other forms of support, and therefore have experienced loss beyond just their grief.
Eligibility to claim compensation after a death varies slightly across Australian jurisdictions but generally includes:
One of the most common types of claims involves family members who have witnessed their loved ones suffer due to medical negligence.
Seeing a loved one endure harm in this way can lead to profound psychological trauma, extending beyond the grief of their loss. Australian law acknowledges this impact through what is often referred to as ‘nervous shock’ or ‘psychiatric injury’ claims.
Family members who witnessed medical negligence or its immediate aftermath may have a separate claim if they:
It’s important to note that mere distress or sadness, even if severe, is generally not sufficient for these claims. A diagnosable psychiatric condition is typically required.
Situations where family witness claims might occur include:
To support a claim as a witnessing family member, important evidence includes:
You may still have a valid claim even if your family member was seriously ill before the alleged negligence.
Key questions to consider include:
When a death occurs in a nursing home or aged care facility, it may involve both medical negligence and institutional negligence.
Common issues include:
When a family member passes away due to negligence or wrongful actions, the law provides for compensation that can help ease the financial and emotional burdens left behind. These compensations are generally divided into two categories: economic and non-economic damages.
These are tangible financial losses resulting from the death, including:
These address the emotional and psychological toll caused by the death of a family member. These include:
Surviving spouses may receive compensation for the loss of companionship and the emotional distress it causes. Similarly, dependent children may be compensated for the loss of guidance and support from the deceased. This compensation acknowledges the non-financial, relational aspects of family life and is available to eligible family members.
Family members who witness a negligent event or its immediate aftermath may be eligible for compensation if they suffer a psychiatric injury. To qualify, the claimant must have a diagnosed psychiatric condition beyond normal grief, and the condition must be deemed reasonably foreseeable following the event.
A family member can generally pursue compensation for non-economic losses if they can prove dependency on the deceased.
The compensation amount is influenced by:
Strict time limits apply to compensation claims following a death:
Considering these constraints, it’s important to consult with a lawyer as soon as possible.
In Australia, several landmark cases have significantly influenced how negligence claims involving the death of a loved one are handled. These precedents have shaped the legal landscape for pursuing compensation in such tragic circumstances.
In this case (NSWSC 863), the plaintiffs suffered psychiatric injuries after the birth of their son, who was born profoundly disabled due to medical negligence during delivery. The court awarded damages for nervous shock, recognising the severe psychological impact on the parents.
This case is significant as it highlights the court’s willingness to compensate for psychiatric injuries resulting from witnessing the birth of a child with severe disabilities caused by medical negligence
The Annetts case involved two parents whose 16-year-old son was sent to work on a cattle station with the assurance that he would be supervised. Instead, the boy was placed in a remote location, became lost, and was later found dead after an extensive search. The parents were informed of his death by police over the phone months later. They claimed to have suffered psychiatric injury as a result of the stress and distress caused by the situation.
The case was significant because it addressed the issue of secondary victims; individuals who suffer psychiatric injury not by directly witnessing a traumatic event but by learning of it.
The High Court ruled that the defendant’s assurances about the safety of the boy were essential in establishing a duty of care toward the parents. The court also moved away from requiring ‘sudden shock’ or ‘direct perception’ for a claim to succeed, stating that these were factors to consider but not prerequisites for liability. This decision expanded the scope for claims by recognising that psychiatric injury could occur from learning about the death of a loved one, even without direct exposure to the traumatic event.
In this case, the defendant, Strang Patrick Stevedoring Pty Ltd, employed a forklift driver whose negligence led to the death of an employee who was crushed by the forklift. The deceased man’s three children, aged 19, 17, and 14, and his wife, later claimed to have suffered psychiatric injuries upon learning of his death. This case involved a claim from secondary victims, as the family members were not direct witnesses to the accident but were significantly affected by the news of the fatal incident.
While the mother’s claim was dismissed, the children’s claims were initially rejected under Section 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which required claimants to have witnessed the event or its immediate aftermath.
The High Court, however, ruled that a duty of care could extend to family members who had a close, loving relationship with the victim, even if they didn’t witness the event. The Court recognised that it was foreseeable that children could suffer psychiatric injury upon learning of a parent’s death in such tragic circumstances.
At the time, Section 4(1) allowed for claims by family members who were close to the victim, even if they didn’t directly witness the incident. This provision was later replaced by the Civil Liability Act 2002 (NSW). The Court’s ruling expanded the scope of liability for psychiatric injury, particularly for family members of workplace accident victims, even when they were not present at the scene.
This case is significant in broadening the ability of close family members to claim for psychiatric injuries and set an important precedent for future claims involving nervous shock or wrongful death due to negligence.
Claims for pain and suffering alone can result in settlements of up to $650,000.
Below, we explore past cases and the outcomes of various claims related to the wrongful death of loved ones, where relatives have pursued claims for nervous shock.
| Type | Case details | Settlement |
| Aged care home negligence | A man’s father died in an aged care home from sepsis, allegedly caused by a nurse’s mishandling of a catheter. The nursing home was initially reluctant to provide records related to the deceased’s care. Despite this, the plaintiff pursued legal action, resulting in a settlement for the plaintiff’s anxiety and depression. | $116,500 |
| Medical negligence | A man presented to a hospital in NSW with sharp left-sided chest pain on 13 July 2019, following a similar pain the day before. Despite initial treatments for a suspected heart attack, the decision was made to administer thrombolytic therapy, which led to intracranial bleeding and the patient’s death. The family received compensation for psychological distress. | $500,000 |
| Hospital negligence | A Western Sydney woman’s daughter, who had cerebral palsy and a ventricular-peritoneal shunt, passed away in 2012 due to a failure to diagnose and treat appendicitis. Despite presenting with typical symptoms, the daughter was wrongly discharged from a hospital without further investigation. This led to an untreated appendicitis that caused an abscess, which obstructed the shunt and resulted in her death. Following legal action and expert medical opinions, the hospital settled with the family for $150,000 in compensation for its negligence and the psychological distress caused to the plaintiff. | $150,000 |
Yes, it is possible to make a claim for psychiatric injury, even if you did not directly witness the negligence or the event itself. The Court recognises that close family members, such as children, could suffer psychiatric injury upon learning of a loved one’s death due to negligence, even if they were not present at the scene of the accident.
However, it is important to note that each case is different, and legal advice is recommended to understand the specific circumstances of your situation. At GMP Law, we offer a free initial consultation to help you explore your options.
Yes, in Australia, certain family members can pursue medical negligence compensation claims after a loved one has died due to suspected medical malpractice. These claims fall under what are often called ‘dependency claims’ or ‘wrongful death claims,’ depending on the jurisdiction.
Determining whether medical negligence contributed to a death often requires expert analysis.
Warning signs may include:
A specialised medical negligence lawyer can help evaluate your case and obtain expert medical opinions to determine if negligence occurred.
Deaths in nursing homes or aged care facilities may involve elements of both medical negligence and institutional negligence.
Potential claims might address:
In addition to compensation claims, these cases may warrant reporting to regulatory bodies like the Aged Care Quality and Safety Commission.
While court proceedings may be filed in many cases, the majority of medical negligence claims settle before reaching trial.
Factors affecting whether court attendance will be necessary include:
Even when formal proceedings are initiated, pre-trial settlement remains the most common outcome. Your lawyer will prepare you for any court appearances that may be necessary.
With 35 years of experience, we have successfully represented clients in personal injury cases across Australia, including:
We recognise the physical, emotional, and financial toll that injuries have on individuals and their families.
Our commitment to our clients includes:
We are the only Australian firm that stands behind our service with a written cost reduction promise, offering you complete peace of mind with your claim. We are committed to delivering expert legal guidance with empathy and care, and will work tirelessly to achieve the best possible outcome for our clients.
In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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