Damages in An Action for Wrongful Death: The Effect of Entering Into, or of the Prospect of Entering Into, a Financially Supportive Cohabitation Relationship, and the Effect of the Likelihood of Divorce or Separation on the Assessment of Damages in a Wrongful Death Claim

• NCJ Number: 200656
• Date Published: June 2002
• Length: 68 pages
• Corporate Author: Queensland Law Reform Cmssn
• Sale Source: Queensland Law Reform Cmssn
• Publication Format: Document
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Australia
• Note: Queensland Law Reform Commission Issues Paper WP No. 56

Annotation

This paper reviews the legal issues relevant to bringing a wrongful death action against another person in the United Kingdom and Australia.

Abstract

When one person wrongfully causes the death of another, an action may be brought to claim financial damages for the benefit of relatives who suffer a financial loss due to the death. The paper provides the historical background on the law surrounding wrongful death actions and explains the cases in which financial compensation may be sought by relatives of the deceased. According to current law, wrongful death actions may be brought for the benefit of the spouse, parent, or child of the deceased. The specific elements of a wrongful death action are discussed, including definitions of “wrongful act” and what is meant by “causation.” The following section reviews how damages are assessed in wrongful death actions and how contingencies are accounted for under the law. The next section explores issues related to the possibility of a new relationship and how this relationship may affect the damages collected by the relatives of the deceased. Personal attributes of the surviving relatives are also considered when wrongful death actions are brought before a court. For example, the age of the surviving spouse is usually regarded as relevant to any wrongful death action, as is the possibility of remarriage. Furthermore, the relationship between the surviving relatives and the deceased is also regarded as relevant to any financial claims; the court generally assesses whether the relationship was likely to last or whether divorce was imminent at the time of the wrongful death. The paper also discusses issues relevant when a claim is made on behalf of a child, including issues pertaining to whether the remarriage of the remaining parent is likely or imminent. The laws in the United Kingdom, Australia, New Zealand, and Canada are discussed for comparison purposes. Finally, the paper presents issues for consideration, such as whether ascertaining the permanence of the relationship between the deceased and surviving spouse is demeaning to the surviving spouse and whether such assumptions can be accurately made by presiding judges. The paper ends with a series of questions that invite further debate on the issue of wrongful death actions.