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Table of contents

1. The true losses suffered in a Car Accident are often under-estimated.2. Who can claim motor vehicle injury compensation?3. What can you claim for as part of motor vehicle injury compensation?4. What are the most common road and car accident injuries?

Queensland is a large state, where the roads are long and the conditions often hazardous due to weather, animals, fatigue, and driver negligence. Despite constant efforts by the Department of Transport and Main Roads, Queensland Police, and various educational bodies, fatal car and road accidents continue to happen. A fatal motor vehicle accident is devastating for everyone involved, from the grieving family members and loved ones through to the first response paramedics and service who attend the scene.

There were 276 fatalities on Queensland roads in 2020, an increase of 24.5% from the 219 fatalities which occurred in 2019. Of the fatal accidents in Queensland, young adult drivers or riders accounted for a large proportion of fatalities, but ultimately it was drivers between 25 and 59 years who were the largest represented demographic . Speeding and drink driving were found to be the leading mitigating factors in road accidents resulting in death.

When a loved one dies in a road accident, no matter the cause, it is heartbreaking and traumatic. Often you will be unable to work or take care of yourself for a time as you deal with your grief. In some cases, the person who has died was the sole income earner for your family and you are now suffering financially as well as emotionally.

If your loved one has been killed in a road accident that was not their fault (or partially not their fault), you may be entitled to claim compensation through the at-fault driver’s insurance provider. This might be compensation for hospital and funeral expenses, loss of financial support if you were financially dependent, and emotional suffering.

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Who can make a claim?

You may be entitled to claim for an amount of compensation if you are a family member of the person who has died, that is, if you are a spouse, parent, child or sibling of the deceased person. 

In special cases if you were sufficiently close to the deceased person and suffered psychologically you may be able to claim. Conversely, you may have witnessed the accident and been traumatised to the point of psychological diagnosis, which means you may be able to claim for a psychiatric injury.

If you fall into these categories, then a claim may be made for people who have been killed as a result of a road accident as a driver, passenger, or pedestrian. You do not have to be in a vehicle or operating a vehicle, because pedestrians, cyclists, and motorcyclists are also classified as road users. 

If the person who has died was not at fault in the accident, then the claim for compensation will likely be made in full.

Example: 

Patricia is walking home from the pub one night. She is quite intoxicated, but she is sticking to the footpath. A woman driving erratically suddenly appears from around the corner and mounts the footpath, accidentally striking Patricia and killing her instantly. 

Even though Patricia is intoxicated, this would not have contributed to her death as she is walking on the footpath and the car driver is at fault for mounting the kerb. As a result. any claim for compensation would be made in full.

Example: 

Tom is a 45-year-old father of two young children and husband to Sarah. He works full time as a builder.

Tom was driving along one day with his wife and two children in the car. While driving through an intersection, another car runs a red light and collides with Tom’s car, killing him instantly.

Sarah and her two children survive but are later diagnosed as having PTSD.

Sarah and her children would all be entitled to each make two types of claims against the insurance company for the driver who caused the accident:

  • A personal injury claim – for their psychological injuries; and
  • Dependency claims – each member of the family was dependent upon Tom to work and make an income for the household. They can claim for the lost income that will no longer be coming into the household.

Further, Tom’s wife Sarah may also be able to make additional claims for the loss of her relationship (loss of consortium) with Tom and for the loss of services (loss of servitium) that Tom was performing around their home until he passed away.

With these types of clams you may hear the following terms mentioned:

  • A “loss of consortium” claim is for the loss of companionship someone suffers when they lose their partner.
  • A “loss of servitium” claim is for the loss of services that someone experiences once they lose their partner (i.e. their partner used to mow the lawn, do the gardening etc, so once they pass away those services are no longer being performed).

How are fatal accident compensation claims calculated?

When a loved one is killed in a car accident it is incredibly difficult to know how to process this loss. Often the last thing on your mind will be speaking to a lawyer, but once you are ready to move through the process of seeking compensation, our personal injuries and accident claims lawyers are here to help you. A claim for compensation will consider:

  • The earning capacity of the person who has died, and how much responsibility they had in providing for their family.
  • Medical expenses (if any) prior to death, as well as funeral and associated costs.
  • The loss of any practical support, say for example an adult child who was the primary carer for their older parents, or who provided financial support.
  • Emotional distress and suffering caused by the accident and death.

Example: 

Louis is the primary caregiver and financial support for his elderly father. Louis is cycling to the gym one morning when he is struck by a truck and killed. Louis’ father would be able to claim compensation for the loss of care and support which Louis had previously provided, as well as compensation for any emotional distress and suffering.

Time limits to make a claim?

When you have lost a loved one in a car accident often the last thing you are thinking about is making a legal claim for compensation. And then once the shock and initial heartbreak begins to lessen, people often do not think about the accident because of how hard it is for them. But you must know that you have three years in which you can commence making a claim for compensation.

Minors (aged under 18) have until their 21st birthday to lodge a claim. Plus, while you have three years, you also have other specific time limits which must be adhered to.

As a result, you should contact our Brisbane based personal injury lawyers today and book a complimentary and obligation-free consultation with our team. We can advise you on where you stand and let you know what you need to do, to achieve the best possible outcome for your matter.

Who pays the compensation?

When your loved one is killed because of someone else’s negligence on the roads, you will make a claim against the compulsory third party (CTP) insurance provider of the at-fault driver.

  • If your loved one was killed in a hit and run, or if the at-fault driver was driving an unregistered vehicle you can make a claim against the Queensland statutory body for claims which is the Nominal Defendant.
  • A claim for compensation must be made within certain time frames in terms of notifying parties (such as insurance providers or the Nominal Defendant), so it is important that you contact a legal expert as soon as you are able, to ensure your claim can progress. 

In addition to any legal claim that you may make against the CTP insurance provider, you may also be eligible to claim on a superannuation fund or private life insurance policy that the deceased held.

Call us today and find out about making a claim for compensation if you have lost a loved one in a road accident. Our car accident lawyers provide expert legal advice to ensure that you are in the best possible position to make a claim against the at-fault driver’s insurance provider.

Posted by Kirk Watterston Senior Associate

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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