Cassidy, Belinda --- "The Buried and the Bereaved: Compensation Following Deaths on Our Roads" [2021] PrecedentAULA 4; (2021) 162 Precedent 10

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In 2019, 1,195 people lost their lives on Australian roads.^[1] That is almost 1,200 families who have had to lay their loved one to rest, and many more who have had to adjust to a new normal without their father, mother, sister, brother, child, friend or colleague.

All states and territories of Australia levy third party personal injury insurance on the motor vehicles that use our roads; operate some form of compensation or benefits scheme for people who suffer psychiatric injury following accidents; and offer some way of paying for the funerals of those who suffer fatal injuries. However, what those schemes offer and what can be claimed varies greatly from state to state.

The law concerning compensation to relatives is equally complicated and similarly divergent and is perhaps best left for a future article.

THE BURIED: FUNERAL EXPENSES

It is not uncommon to hear, at the end of a news story about a particularly tragic road accident fatality, that a ‘GoFundMe page’ has been set up to help the family pay for the funeral of the deceased. But as every state and territory provides, to some extent, for the recovery of funeral expenses in their legislation, most people’s first contact after a fatal accident should be with a CTP insurer or a good personal injury lawyer.

Queensland, SA and WA have a fault-based common law scheme and the recovery of funeral expenses is included in their respective survival action legislation.^[2] Common law claims can of course take a long time to resolve but anecdotal reports suggest that insurers will at least pay the funeral expenses portion of a survival claim quite quickly.

Victoria, Tasmania and the NT provide for the recovery of funeral expenses regardless of who was at fault,^[3] but the apparent generosity of this is modified by the imposition of caps on the maximum amount that may be claimed.

NSW and the ACT offer a hybrid scheme which provides for both no-fault funeral expense benefits (in NSW capped at ‘reasonable’, and in the ACT capped at $15,000) and fault-based common law damages as part of a survival action.^[4]

There is no definition of ‘funeral expenses’ in any of the relevant legislation. Giving each word its usual meaning would suggest that the term refers to the costs or expenses associated with the funeral which, according to the Macquarie Dictionary, is defined as ‘the ceremonies connected with the disposition of the body of a dead person’.

Some legislation refers to burial or cremation expenses, which appears to go beyond the ceremony and deals with the actual disposition of the body. Expenses incurred in the funeral, burial or cremation of the body would not, on a strict interpretation of the term, extend to the payment of a headstone or plaque.

The Compensation to Relatives Act 1897 (NSW), which covers fault-based common law actions of survival, specifically refers to expenses of the funeral or cremation (but what about the costs of a burial, and what about someone who has a church service separate to the graveside internment?) and the cost of erecting a headstone or tombstone over the grave in the cemetery (but it may not cover the cost of the plaque in the memorial wall at the crematorium).^[5]

The absence of a definition may be a good thing, as it could allow for the individual circumstances of the deceased and their family. But it could also lead to uncertainty and ultimately disputation.

While in many jurisdictions there are monetary caps, some jurisdictions only require the expenses to be ‘reasonable’. This prompts the question: what is reasonable? The ACT is the only jurisdiction that identifies some possible relevant considerations in determining reasonableness, including ‘the religion and cultural circumstances of the dead person and members of the dead person’s family’.^[6] Other factors are likely to include the age and social standing of the deceased. For example, a whole school may be present at the funeral for a popular student or a generous community charity worker may have hundreds of friends, family and supporters present which would require a larger venue, more printed orders of service, and so on. And what if a local long-serving politician, former governor, or other significant person died in a car accident? It may be reasonable for them to have a state funeral but should the associated considerable expenses be paid by the CTP insurer?

Some jurisdictions provide additional guidance in their legislation. In Victoria, for example, the Transport Accident Commission (TAC) will, in addition to the cost of the funeral, also pay the cost of family members travelling to the funeral (if the distance is greater than 100km) up to an indexed limit per claim.^[7] NSW and ACT legislation provides for the repatriation of the body of an interstate or international traveller to their home state or country.^[8] However, the ACT will not pay for the funeral of a foreign national who is injured in Australia and returns home but subsequently dies from their injuries in their home country.^[9]

The table below sets out brief details of the schemes operating in each state and territory. For simplicity, I have included references only to the legislation and not the individual sections.

State/Territory	Legislation	Entitlement	Amount
ACT	Motor Accident Injuries Act 2019	No need to prove fault.^[10]	• Up to $15,000 for funeral expenses plus cost of repatriating the body interstate or overseas, but not the wake or memorial. • Reasonable funeral expenses if deceased not at fault.
NSW	Motor Accident Injuries Act 2017	No need to prove fault.^[11]	• Reasonable funeral expenses plus cost of repatriating the body interstate or overseas. • Funeral, cremation or headstone if deceased not at fault.
NT	Motor Accidents (Compensation) Act 1979	No need to prove fault.	Reasonable funeral expenses up to 5.2 times of the annual average Australian earnings (currently $8,848.82).^[12]
Queensland	Succession Act 1981	Must prove fault.	Reasonable funeral expenses.
SA	Civil Liability Act 1993	Must prove fault.	Funeral expenses.
Tasmania	Motor Accidents (Liabilities and Compensation) Act 1973	No need to prove fault.	Up to $11,415 for all expenses ‘reasonably incurred’ in the burial or cremation, but not the erection of a gravestone.
Victoria	Transport Accident Act 1986	No need to prove fault.	Maximum $16,200 for burial cremation and monument plus $5,400 for the immediate family to travel for the funeral if they live more than 100km away.
WA	Fatal Accidents Act 1959	Must prove fault.	Funeral expenses.

THE BEREAVED: PURE MENTAL HARM OR NERVOUS SHOCK

We have not yet celebrated the centenary of the House of Lords’ decision in Donoghue v Stevenson,^[13] which recognised the neighbour principle in a case involving what would probably now be considered consequential mental harm suffered by the plaintiff, Mrs Donoghue, when confronted with the decomposing body of a snail in a bottle of ginger beer. Seven years after that decision, the High Court of Australia was confronted by the case of Chester v Waverley Municipal Council, which involved a local council, an unfenced trench filled with water, the drowning of a little boy, and the pure mental harm or nervous shock experienced by his mother on seeing his body as it was lifted out of the trench.^[14] Chief Justice Latham, who was in the majority, said:

‘In my opinion ... it cannot be said that such damage (that is, nervous shock) resulting from a mother seeing the dead body of her child should be regarded as "within the reasonable anticipation of the defendant". "A reasonable person would not foresee" that the negligence of the defendant towards the child would "so affect" a mother ... Death is not an infrequent event, and even violent and distressing deaths are not uncommon. It is, however, not a common experience of mankind that the spectacle, even of the sudden and distressing death of a child, produces any consequence of more than a temporary nature in the case of bystanders or even of close relatives who see the body after death has taken place.’^[15]

Thankfully, every state and territory in Australia now provides some form of compensation or benefits to people injured in motor accidents, and the definition of injury in almost all schemes is not limited to just bodily or physical injuries but includes psychological or psychiatric injuries as well.

The NT operates a purely no-fault compensation scheme and the relevant legislation abolishes common law claims.^[16] Someone who suffers a ‘personal injury’ as a result of a motor accident has an entitlement to defined and limited benefits, but there is no definition of personal injury in the Act and there do not appear to be any special mental harm provisions.^[17]

Of the pure common law jurisdictions – Queensland, SA and WA – Queensland is the simplest in terms of legislation. Schedule 2 of the Civil Liability Act 2003 (Qld) contains a definition of personal injury which includes psychological or psychiatric injury but there are no limitations, exclusions or restrictions other than those imposed by the common law.

In SA, the Civil Liability Act 1936 (SA) includes both bodily and mental harm as injuries, and distinguishes between consequential and pure mental harm.^[18] There are also a number of limits to the recovery of damages. Section 3 of the Western Australian Civil Liability Act 2002 is similar.

Victoria, Tasmania, NSW and the ACT offer both benefits under a no-fault scheme and also access to common law damages for those who can prove fault.

Victorian legislation contains a definition of injury which includes physical or mental injury and specifically mentions ‘nervous shock suffered ... by a person who was directly involved in the transport accident’ or someone who witnessed it or the immediate aftermath of an accident.^[19] The TAC website indicates that families can apply for family counselling of up to $17,190 per family.^[20] Access to common law is reserved for those with a serious injury including ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.^[21]

Tasmania also includes nervous shock in its definition of injury and the injury is required to arise directly from a motor accident.^[22] The Motor Accidents Insurance Board website says that it will fund family counselling of up to $1,270.^[23] Common law claims are permitted in Tasmania and are regulated by the provisions of Part 8 of the Civil Liability Act 2002 (Tas), which are similar to those in the ACT and NSW.

The ACT has legislation which came into effect on 1 February 2020.^[24] It provides for no-fault income protection and treatment benefits, as well as limited access to common law damages. Section 9 provides a definition of personal injury which includes psychological or psychiatric injury and gives examples of such injury as ‘mental or nervous shock’.^[25] The injury must result ‘from’^[26] or have been sustained as ‘a result of’^[27] a motor accident. If the injured person has a whole person impairment (WPI) of at least 10, they may recover common law damages for their psychiatric injury,^[28] the entitlement to which is regulated by the pure mental harm provisions in Part 3.2 of the Civil Law (Wrongs) Act 2002 (ACT). These are similar to the Tasmanian and NSW provisions.

The current motor accident compensation and benefits scheme in NSW includes common law damages for those who can prove fault on the part of the owner or driver of a motor vehicle, but only if they have more than a ‘minor injury’.^[29] While the definition of injury^[30] includes psychological or psychiatric injury, the definition of ‘minor injury’ excludes persons with an adjustment disorder or an acute stress disorder, and therefore they cannot make a common law claim.^[31]

If the injury complained of is pure mental harm, then as in the ACT, Tasmania, SA and WA there are the following general limits:

The NSW legislation goes further than any other state or territory by reducing the damages paid to the person who has sustained the nervous shock due to the contributory negligence of the deceased or injured victim.^[33] This reduction applies whether the person killed or injured is a close relative or a complete stranger.

The NSW no-fault statutory benefits regime recognises both psychiatric and physical injury however the injured person is only entitled to benefits during the first 26 weeks, and benefits beyond that will depend on the person having more than a ‘minor injury’ and not being wholly or mostly at fault.^[34] NSW is again the only jurisdiction in Australia that includes the pure mental harm provisions, applicable in common law claims to claims for the defined statutory benefits scheme. Precisely how those provisions apply is not specified because the relevant section states:

‘Part 3 (Mental harm) of the Civil Liability Act 2002 (NSW) applies to the payment of statutory benefits under this Part in connection with an injury in the same way as it applies to the award of damages in connection with an injury subject to any necessary modification and to any modifications prescribed by the regulation.’^[35]

The relevant regulation^[36] applies the damages reduction provisions of s30(3) of the Civil Liability Act 2002 (NSW) and can reduce or terminate the injured person’s weekly benefits as a result of the victim’s contributory negligence. For instance, a person may witness a horrific car accident and develop long-standing PTSD as a result. While they are entitled to statutory benefits for the first 26 weeks after the accident, they cannot access benefits beyond that if the person killed or injured in the car accident was wholly or mostly at fault.

The first issue that will often arise is identifying whether the claimant is a close family member. In NSW, for example, the legislation limits close family members to parents, spouses or partners, a child or step-child, and siblings (including step-siblings and half-siblings).^[37] The parent-child relationship is expanded to include those with parental responsibility for the victim or for whom the victim had parental responsibility including foster parents, family friends, or distant relatives who are the guardian/s of the victim. But what about grandparents and grandchildren? What about foster siblings? What about ethnic or racial groups whose family structures do not reflect the generally Western model of ‘family’? For example, Aboriginal and Torres Strait Islander communities tend to have stronger connections and much wider and closer family relationships.^[38]

In the NSW legislation,^[39] the definition of ‘spouse or partner’ includes a de facto partner but if there is more than one person who qualifies, only the last person to qualify can claim. In Frangie v South Western Sydney Local Health District trading as Liverpool Hospital,^[40] several family members of Mr Frangie sued the local hospital after he died of a heart attack. One of those family members was his estranged wife from whom he had been separated for a ‘considerable period of time’,^[41] although no issue was taken by the defendant as to her entitlement to participate in the claim.

Questions surrounding duty of care arise infrequently. In Homsi v Homsi,^[42] the Supreme Court of Victoria was referred a question of law for determination. The plaintiff, Mrs Homsi, was the mother of the driver of a car who, due to his own fault, collided head-on with a vehicle on the other side of the road, killing himself and the driver of the other car. Mrs Homsi was notified of the accident and her son’s death by phone and she sustained a psychiatric illness so severe that she was granted a serious injury certificate enabling her to commence legal proceedings. She argued that her son owed her a duty of care not to kill himself and cause her psychiatric injury. In Victoria, there are no restrictions as in NSW so the common law was the only law to be applied in this case. Justice J Forrest found against Mrs Homsi, noting that she was a ‘secondary’ victim whose rights could only arise if there was ‘an established and pre-existing duty of care being owed by the tortfeasor to the primary victim’ as a road user.^[43] As the primary victim (Mrs Homsi’s son) died as a result of his own negligence and he owed no duty to himself, there was no ‘secondary’ duty that could arise in the circumstances of the case.

There is an extraordinary variety of CTP schemes operating in Australia, and nowhere is this more evident than in considering the availability and quantum of funeral benefits. With comparatively fewer deaths on our roads in recent years, perhaps it is time to consider a consistent national approach. After all, fairly compensating the families of the deceased for the cost of a funeral might reduce the number of nervous shock claims, and improve the mental health and productivity of many members of our community. Achieving consistency across the country in pure mental harm claims might be harder, bearing in mind the significant differences between common law and defined benefits schemes, but perhaps a starting point could be a no-fault counselling benefit for the families of all of those who are killed on our roads.

Belinda Cassidy is special counsel at Stacks Goudkamp. EMAIL belinda@stacksgoudkamp.com.au.

^[1] Bureau of Infrastructure, Transport and Regional Economics, Road Trauma Australia 2019 Statistical Summary (Statistical report, 9 July 2020).

^[5] This might be explained by the fact that the Compensation to Relatives Act is dated back to 1897 and cremation was not legalised until the 1920s when the Act was amended.