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Major research assignment part B - Coggle Diagram

- - - - Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence
      - where a person has died as a result of someone else’s negligence an action might be brought by eligible persons against the negligent party under the Compensation to Relatives Act 1897 (NSW) for compensation for loss of personal and financial support as the result of the death.
        
        Eligible persons under the Act include: spouses, siblings, half-siblings, parents and children of the deceased. There must have been a level of personal or financial dependence as between any eligible persons and the deceased prior to death. Such an action is to be brought by and in the name of the executor or administrator of the deceased, on behalf of the eligible persons.
        
        “Damages for financial support”
      - Damages:
        
        – Loss of financial support;
        
        – Loss of care and domestic support; and
        
        Case exmaple
        
        SOUTH WEST HELICOPTERS PTY LTD and Another v STEPHENSON and Others* — (2017) 98 NSWLR 1
        
        LOGAN v HANKOOK TIRE CO LTD BC201302221
        
        1 more item...
        
        – Funeral expenses.
        
        Future economic loss
        
        Not etitled to super ( (b) any sum paid or payable out of any superannuation, provident, or like fund, or by way of benefit from a friendly society, benefit society, or trade union, or)
        ( Past or present)
        
        Loss of care
      - THOMPSON v KIMBERLY-CLARK AUSTRALIA PTY LTD BC200507743
    - - If death results from an injury, the amount of compensation payable by the employer under this Act shall be—(a) the amount of $750,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and (b) in addition, an amount of $66.60 per week in respect ofzzi) each dependent child of the worker under the age of 16 years, andii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.
        
        Amount is indexed
        
        Case example
        
        WEI v HUNGRY PANDA AU PTY LTD BC202210757
      - Heads of loss
        
        dependants of a worker whose death as result of a work-related injury occurred on or after 24 October 2007 are entitled to:
        
        Key to these damages are dependants
        
        a lump sum payment ($891,100 as of 1 April 2023)
        
        weekly payments ($159.50 per week as of 1 April 2023) for each dependent child up to the age of 16 (or 21 if they are in full-time education)
        
        reasonable funeral expenses
    - - Claim for nervous shock under the CLA
    - - As many deaths at work give rise to rights at common law, the applicant plaintiff must often decide between taking the death benefit and pursuing a claim under the Compensation to Relatives Act 1897. The plaintiff is not required to elect between benefits under one statute or the other, but compensation payments must be repaid from damages received: s 151Z(1)(b) (1987 Act). Whether a claim at common law is more valuable than a workers' compensation claim will involve an assessment as to liability factors, amounts of money conferred before death, the plaintiff's employment options and prospects and all other relevant factors going to assessment of a claim at common law, and which are not relevant or necessarily relevant to a death claim under the Act. See also behind the Common Law Claims tabcard
    - - IS SHE DEPENDANT
        
        Does she keep herself
- - - - What heads of damage may be available in this claim? :pen:
      - Explain why and further, what law (both cases and legislation) is relevant
        and applicable.
      - Husband, Children and Mother
        
        logan
        
        Section 5 of the Act, provides that only one action shall lie “ … for and in respect of the same subject matter of complaint”.
        
        The plaintiff, Ms Logan, has, so it seems to me, under the Compensation to Relatives Act, a responsibility to mount the action on behalf of all available beneficiaries. (Children)
        
        Apportioning?
        
        Potential case : ROADS AND TRAFFIC AUTHORITY v CREMONA (2001) 35 MVR 190
        
        (b) any sum paid or payable out of any superannuation, provident, or like fund, or by way of benefit from a friendly society, benefit society, or trade union, or
        
        4) such action shall be for the benefit of the spouse, brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.
        
        in order to obtain an award, it is not essential to show that any of these beneficiaries is financially dependent upon the deceased, simply that they had an expectation of financial support: at [12] per Gleeson CJ.
        
        De Sales
        
        Dependancy
        
        2 more items...
        
        is the mother dependapt, i dont think so. She lives on the same land but I dont think that makes here depedant
        
        Father as executor of the estate on behalf of his children
    - - Contributory negligence
        
        Civil Liability Act 2002 No 22 section 5T
        
        (1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is
        entitled to have regard to the contributory negligence of the deceased person.
        
        The principles of contributory negligence as outlined by the CLA will apply
        
        (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.
        
        Goddard v Central Coast Health Network
        
        Section 5R requires me to consider what a reasonable person in the position of Rebecca and Mr Goddard would have done on the basis of what he or she, as the case may be, knew at the relevant time.
        
        ELELEMTS I HAVE NOTES FOR
- - - - TAYLOR v OWNERS
      - Accordingly, damages awarded in Relatives Act claims “are compensation for pecuniary loss, the assessment being ‘a hard matter of pounds, shillings and pence’ ” (footnotes omitted).47 They are calculated by reference to the pecuniary benefit that could reasonably have been expected to accrue to the claimant from the continuance of the life had death not occurred.48 Such claims are clearly claims for economic loss. HINWARI v ANJOUL BY HER TUTOR ANJOUL
      - [123] In addition, a distinction can be drawn between common law claims, arising out of personal injury, and statutory claims under the Relatives Act and its equivalents. A claim for damages arising from personal injury has its roots in the common law, whereas an action for wrongful death is based entirely on statute. An action for damages arising from personal injury is brought by the person who suffers the injury, who may establish special damages or ordinary damages. On the other hand, in an action under the Relatives Act, dependency on the deceased person and loss of expectation of pecuniary benefit must be demonstrated. The amount awarded is then apportioned between the depend ants and is payable to them direct, and is not distributed through the estate of the deceased person.
        [124] Thus, an action under the Relatives Act is not for damages sustained by the deceased person but for damages sustained by those who had the requisite expectation of pecuniary benefit based on the economic capacity or domestic services provided by the deceased person to that claimant at the time of death. The beneficiary suffers pecuniary loss but no personal injury.