When a person is injured and another person is responsible for that injury, the injured person may be entitled to receive compensation (otherwise known as "damages") for the loss they have suffered as a result of the negligent acts of another person.
This entitlement to compensation can arise in a number of situations including negligent medical treatment, a car accident or a fall in a public or private place. The types of loss suffered include:
- pain and suffering
- loss of enjoyment of life
- past and future economic loss
- past and future medical
- travel expenses
- past and future care
In theory the compensation awarded to the injured party is intended to place the injured person in a position as close as possible to the position they would have been in had they not been injured. In reality the awards do not achieve this due to the restrictions placed on the award of damages over time by the relevant legislation.
What happens when a person dies? Can their family recover compensation for the loss they have sustained?
In South Australia, a parent, spouse or domestic partner of a deceased person can recover compensation if the death is caused by a wrongful act, neglect or default, and that if the death had not occured, the wrongful act, neglect or default would have entitled the person to recover compensation themselves from those at fault.
The relevant provisions are Sections 28 and 29 of the Civil Liability Act 1936 (SA) which describes the compensation payable as "solatium for the suffering caused" to the parent, spouse or domestic partner.
What is Solatium?
Solatium is traditionally a sum of money to compensate for wounded feelings. In the context of a wrongful death the payment of a sum for solatium represents compensation for the grief and suffering caused to the parent, spouse or domestic partner by the deceased's death.
The amount of compensation is limited to a modest amount which suggests it is intended for the acknowledgment of the emotional loss only, and does not in any way represent meaningful compensation for the loss suffered.
Other potential claims for personal injury loss and damage that may arise out of a person's death for which another person is responsible include dependency claims and nervous shock claims.
What is a dependency claim?
A dependency claim may arise where a spouse, domestic partner, parent, brother, sister or child of the deceased was at the time of the death dependent on the deceased for financial and other support.
What is a nervous shock claim?
A nervous shock claim may arise where a person suffers mental harm as a result of the death. The injured person must satisfy certain criteria under Section 33 of the Civil Liability Act 1936 (SA) and be diagnosed as suffering from a recognised psychiatric illness resulting from the death.
This is a complicated area of law and the amounts that can be claimed will vary depending on the circumstances of the case. Contact Andersons Solicitors' Civil Law Team for more information.
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