We have several clients who come to us for advice after their loved one has died on a public road, at work, or as a result of criminal wrongdoing (such as murder or manslaughter). In addition to advising those clients on the best approach to administering the estate we frequently provide advice on compensation that may be payable to either the estate or the deceased’s dependants directly. In cases of fatal traffic accidents, we can, in some circumstances, seek compensation from the insurance commission of Western Australia. In cases where the deceased died at work, it may be appropriate to seek compensation by way of WorkCover arbitration. When advising our executor or administrator clients we are often able to have the funeral costs met by either the deceased insurer, employer, or another statutory insurance provider. Where the deceased was relatively young, was earning good employment income, and had young dependents, the compensation payable may be substantial.
Under the Fatal Accidents Act 1959 (WA) where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default are such as would (if death had not ensued) have entitled the party to maintain an action and recover damages, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime. Note also s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA), which provides that all causes of action subsisting against or vested in a deceased person shall survive for the benefit of the deceased person’s estate. A cause of action may arise under Part 1B of the Civil Liability Act 2002 (WA), a claim can be made for mental harm in circumstances where the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were no taken. Action under the Fatal Accidents Act 1959 (WA) must be commenced within 3 years of the death. The action under the Civil Liability Act 2002 (WA) must be commenced within 3 years of the cause of action accrues. Executors or administrators need to be aware that they must give the Insurance Commission of Western Australia notice of their intention to bring the action for damage per s 29(1) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
Regrettably, many generalised law practices, who do not specialise in succession law, will overlook these potential claims. Don’t let your dependents miss out. If any of the circumstances sound like they relate to you, please do not hesitate in contacting our office for an initial consultation.