Wrongful Death Claims in Australia: Who Can Claim and What Compensation Covers

Australia has no single national wrongful death law: each state and territory runs its own compensation-to-relatives Act, so a family's right to sue, who can claim, and how long they have all depend on where the death happened.

This page explains how wrongful death compensation works across Australia: the history behind these laws, the three kinds of claim a death can create, who is eligible to bring one, how the states and territories compare on solatium, contributory negligence and time limits, and where a motor vehicle or workplace death is handled instead through a different scheme. It links to a dedicated page for each state and territory with the specific figures, sections and deadlines that apply there.

Where Wrongful Death Law Comes From

At common law, a person's right to sue died with them, so nobody could bring a claim simply because someone died from another person's wrongdoing. The UK's Fatal Accidents Act 1846, known as Lord Campbell's Act, changed that by creating a new statutory right for a deceased person's family to sue for their own loss. Every Australian state and territory Act covered on this page descends from that model, including New South Wales' own Compensation to Relatives Act 1897, whose long title describes it as consolidating an earlier colonial Act for compensating the families of persons killed by accidents.

The Three Claims a Family Can Bring

A single death in Australia can give rise to as many as three separate legal claims, and they are not alternatives to each other. Every jurisdiction reviewed for this page keeps them running side by side.

The relatives' or dependants' claim is the core wrongful death action: a new statutory right, created by the state's Act, for the financial benefit of a defined group of surviving family members, measured by what the death cost them in lost financial support. It exists only because of the death and belongs to the family, not the deceased.

The estate's survival claim is separate. Whatever cause of action the deceased personally held, such as their own personal injury claim in the period between the injury and the death, survives them and can be pursued by their estate under a different, standalone Act. What survives is narrower than what the deceased could have recovered had they lived: every jurisdiction reviewed for this page excludes the deceased's own pain and suffering, and their lost future earnings, from an estate claim arising from the same death (several make a narrow exception for asbestos and other dust-disease claims), though funeral expenses are generally recoverable.

The nervous shock claim lets close relatives who witness a death, or who are told about it, bring a separate psychiatric injury claim in their own right, independent of the wrongful death and estate claims. Some states, including New South Wales, the ACT and Tasmania, define a fixed list of qualifying relatives for this claim; others, such as Victoria, leave eligibility to a general foreseeability test with no statutory list.

Who Can Sue, and Who Counts as a Family Member

In most jurisdictions, the executor or administrator of the deceased's estate brings the relatives' claim in the first instance, on behalf of the eligible family members. If there is no executor or administrator, or none has acted within 6 months of the death, most Acts let the family members concerned bring the claim themselves. Queensland stands apart: its Civil Proceedings Act lets a family member sue directly from the outset, with no waiting period. The ACT's Act does not clearly spell out an executor-first precondition either way, so its position is less settled than the others.

Which relatives count also varies by state. Some name a fixed list, typically a spouse or de facto partner, children, parents and siblings, sometimes extending to step-relations, grandparents, or a former spouse still owed financial support. Victoria instead asks only whether a person was financially dependent on the deceased, with no named categories at all. See the comparison table below and the linked state page for the exact list that applies.

Comparing the States and Territories

Solatium: The Exception, Not the Rule

Only South Australia has a solatium payment with an actual dollar figure attached. Its Civil Liability Act 1936 sets a cap of $10,000 for a surviving spouse or domestic partner (s29) and, separately, a $10,000 cap for the parents of a killed child (s28). Both figures have applied unchanged since the Wrongs Act Amendment Act 1974, with no indexation clause found anywhere in the Act, and a court can refuse solatium entirely at its discretion, having regard to the claimant's relationship with, or conduct toward, the deceased (s30).

The Northern Territory names solatium as a head of damages (Compensation (Fatal Injuries) Act 1974 s10(3)(f)) but sets no amount, no formula and no schedule anywhere in the Act; the amount, if any, is entirely up to the court under the Act's general damages provision. Whether a broader damages cap elsewhere in NT law also applies to a solatium award is not settled and is not addressed here.

Every other state and territory covered on this page has no solatium head at all. Grief itself is compensated, where it is compensated, only through a separate nervous shock claim for a diagnosed psychiatric injury, not as a standalone payment for the loss of a loved one.

The Deceased's Own Contributory Negligence

If the deceased partly caused their own death, for example through their own negligent driving, most states reduce the family's damages proportionately to reflect that. Victoria is the clear exception: its Wrongs Act expressly protects the dependants' claim from any reduction for the deceased's own contributory negligence. The ACT blocks a reduction too, but not absolutely: its Civil Law (Wrongs) Act carves out cases where a specific presumption applies, such as the deceased having been intoxicated or not wearing a seatbelt, where a reduction becomes mandatory unless that presumption is rebutted. See the comparison table above and the linked state page for how this applies where the death happened.

Motor Vehicle and Workplace Deaths

A death caused by a motor vehicle accident or in the course of employment is usually handled first through the relevant compulsory insurance scheme, not an ordinary wrongful death claim.

Motor vehicle deaths generally go through the state or territory's compulsory third party insurance scheme. Some, like the Northern Territory's and Victoria's, are no-fault schemes that pay a benefit regardless of who caused the crash; others, including Queensland's and South Australia's, are fault-based, meaning a payment depends on establishing the other driver's fault, in much the same way an ordinary claim does. See motor accident compensation in Australia and the linked state page for the scheme that applies.

Workplace deaths are generally handled through the relevant state or territory workers compensation scheme, which typically pays a lump sum and, in most states, ongoing payments to dependants, funded by the employer's compulsory insurance rather than a lawsuit against the employer. See workers compensation in Australia and the linked state page for current benefits.

Where the deceased also has assets to be distributed, the ordinary wills and probate process for that state runs alongside any wrongful death or estate claim; see wills and probate in Australia and who inherits without a will in Australia.

What This Process Is Not

A wrongful death claim is a civil action for damages. It is not a criminal prosecution: several of the Acts covered here say so directly, confirming the civil claim exists whether or not the death also amounted to a criminal offence, and it proceeds independently of any criminal case against the person responsible.

It is also not a coroner's inquest. A coroner investigates how, when and why someone died and can make recommendations to prevent similar deaths, but has no power to award compensation. Most of the Acts reviewed for this page expressly bar a coroner from finding that a person committed an offence, and Queensland, Western Australia and South Australia go further and expressly bar any finding of civil liability too. A coronial finding can be used as evidence in a later civil claim, but it does not decide the claim.

A wrongful death claim is also separate from any victims of crime compensation scheme, which exists independently in every state and territory for the financial impact of a crime itself. New South Wales, for example, pays a recognition payment to certain family members of a homicide victim through its Victims Support Scheme, currently $15,000 for a financially dependent family member or a child under 18 at the time of death, and $7,500 for a parent, step-parent, guardian, spouse or de facto partner, paid under a different Act with its own homicide-based eligibility test. It is not fully independent of a court claim, though: the Scheme Executive must have regard to any Compensation to Relatives Act damages a family victim has received or may be entitled to, and typically postpones the application until that entitlement is resolved (Victims Support Act 2013 (NSW) s44(4), s44(6A)). Each state and territory runs its own scheme with its own figures; check the relevant victims of crime agency for the position elsewhere.

State and Territory Guides

• New South Wales wrongful death claims
• Victoria wrongful death claims
• Queensland wrongful death claims
• Western Australia wrongful death claims
• South Australia wrongful death claims
• Tasmania wrongful death claims
• Northern Territory wrongful death claims
• Australian Capital Territory wrongful death claims