Nothing in this article makes a death easier. Its purpose is narrower: to set out, for a family that has to deal with it, what the law provides and in what order. There are usually three or four separate sources of money, and they do not cancel each other out.

Key points

  • Where the death was caused by someone's negligence, the deceased's dependants can claim damages for the loss of financial support and services under Part 10 of the Civil Proceedings Act 2011.
  • Where the death was work-related, WorkCover pays statutory death benefits to dependants regardless of fault, including a lump sum and funeral expenses.
  • Superannuation death benefits and any life insurance inside super are paid on death regardless of cause, and are claimed separately from the fund.

Wrongful death claims

Part 10 of the Civil Proceedings Act 2011 gives the family of a person killed by a wrongful act, neglect or default a claim against the person responsible, where the deceased would have had a claim had they lived. One proceeding is brought for the benefit of all family members, usually by the executor or administrator, and the damages are divided among them. The claim compensates the financial support each dependant would have received, the value of domestic services the deceased provided, and funeral expenses. It does not compensate grief as such, though a family member who suffers a recognised psychiatric injury from the death may have a separate claim of their own.

If the death arose from a motor accident, the claim is made against the at-fault vehicle's CTP insurer under the Motor Accident Insurance Act on the same timeline as other CTP claims. If it arose on premises or from a product, the Personal Injuries Proceedings Act applies. If it was work-related and the employer was negligent, the claim against the employer runs under the Workers' Compensation and Rehabilitation Act. Time limits apply and are not extended by grief: get advice early, even if the family is not ready to decide anything.

WorkCover death benefits

Where a worker dies from a work-related injury, including a journey to or from work and latent-onset diseases, dependants are entitled to statutory compensation without proving fault. The Act provides a lump sum for dependants, additional amounts for dependent children, periodic payments to dependent family members in some circumstances, and reasonable funeral expenses. Who counts as a dependant, and to what extent, is a question of financial dependence on the deceased, and partial dependants are provided for. WorkCover Queensland's fatal claims team handles these applications, and the claim is usually started by phone rather than by form.

Superannuation and life insurance

Most super accounts pay a death benefit consisting of the account balance plus any life cover the fund held for the member. The benefit is paid to the member's dependants or estate under the fund's rules and any binding nomination. If more than one fund was held, each pays. Disputes about who should receive the benefit go to the fund's trustee first and then to the Australian Financial Complaints Authority. The tax treatment depends on who receives it: payments to a spouse or dependent child are generally tax-free; payments to non-dependants are taxed on part of the amount.

How the claims interact

Statutory WorkCover death benefits are paid first and are adjusted against any later damages against the employer. Super death benefits and life insurance are not offset against damages at all. A CTP dependency claim and a WorkCover death claim can both exist where the death was a work-related motor accident, with WorkCover recovering what it has paid from the CTP settlement. Each claim has its own limitation period, and the wrongful death claim in particular is not open-ended.

Frequently asked questions

Can a family claim compensation if a relative was killed in a car accident? Yes. Dependants can claim against the at-fault vehicle's CTP insurer for loss of financial support, loss of services and funeral expenses.

What does WorkCover pay when a worker dies? Statutory death benefits to dependants: a lump sum, amounts for dependent children, funeral expenses, and periodic payments in some cases, without proof of fault.

Is a super death benefit affected by a compensation claim? No. It is paid under the fund's rules regardless of any damages claim.

Sources

  • Civil Proceedings Act 2011 (Qld), Part 10 (ss 62–70, wrongful death proceedings) — legislation.qld.gov.au
  • Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 199–202 (funeral expenses; compensation to dependants), 207B (recovery from damages) — legislation.qld.gov.au
  • WorkCover Queensland, Claiming when someone dies at work — worksafe.qld.gov.au
  • Motor Accident Insurance Act 1994 (Qld), ss 5, 37 — legislation.qld.gov.au
  • Australian Taxation Office, Super death benefits — ato.gov.au
  • Australian Financial Complaints Authority, Superannuation complaints — afca.org.au