Wrongful Death Claims in the ACT: Civil Law (Wrongs) Act 2002, Who Can Claim and Time Limits

In the Australian Capital Territory, a wrongful death claim runs under the Civil Law (Wrongs) Act 2002, and the deceased's own carelessness generally cannot reduce a family's damages, a genuine contrast with neighbouring NSW.

The ACT sits alongside seven other states and territories in our Australia Wrongful Death hub, which explains the three claim families shared across every jurisdiction. This page covers how the ACT's own Act, eligible family members, damages, and time limits work.

The Act Behind a Wrongful Death Claim

Like every Australian jurisdiction, the ACT's law is a descendant of the United Kingdom's Fatal Accidents Act 1846, which first let a deceased person's family sue over the death itself. In the ACT, that action now sits in the Civil Law (Wrongs) Act 2002, Chapter 3, Wrongful act or omission causing death, Part 3.1, sections 23 to 27. Section 24 provides that if a person's death is caused by a wrongful act or omission that would, had death not resulted, have entitled them to sue, the person who would have been liable remains liable to an action for damages, whether or not the death was caused by circumstances that amounted to an offence.

A separate part of the same Act, Chapter 2, Part 2.4, Survival of actions on death, sections 15 to 18, deals with what happens to the deceased's own pre-death causes of action. Section 15 lets those causes of action survive for the estate. Section 18 makes clear the two parts work together: the Part 2.4 estate rights are additional to, and do not limit, the Part 3.1 death action, in the same way the two Acts interlock in NSW.

For a claim connected to the death, the estate's damages exclude a few specific things under section 16: no exemplary damages, and, where the same act or omission caused the death, no damages for the deceased's own pain and suffering, bodily or mental harm, lost life expectancy, or lost earning capacity. A specific exception exists for an asbestos-related disease claim where the deceased gave notice of the claim before dying. Funeral expenses may still be included, subject to a just and equitable reduction for the deceased's age or health.

Who Can Claim as a Member of the Family

Section 23 defines who counts as a member of a dead person's family for this claim: a domestic partner; a child, which includes a grandchild and a stepchild, and a child born alive after the death; a person to whom the deceased acted in place of a parent immediately before death; a parent, which includes a stepfather, stepmother, grandfather or grandmother; a person who acted in place of a parent to the deceased; a brother, sister, half-brother or half-sister; and a former spouse, civil union partner or civil partner. This list is broader than NSW's in one respect, including former spouses and partners, and it is defined in its own terms rather than mirroring NSW's list directly.

Section 25 provides that the court awards damages to the people for whose benefit the action is brought, called the beneficiaries, proportional to the damage suffered by each, in shares the court decides after deducting any unrecovered costs.

The Act's own text does not spell out an executor or administrator first requirement for this claim the way NSW's Compensation to Relatives Act does. That procedural detail may sit in the Court Procedures Rules rather than the Act itself; it is not addressed further here. Applying for probate is still generally the practical starting point for administering the estate alongside any claim.

What Compensation Covers

Damages under section 25 are proportional to the beneficiaries' loss from the death, plus reasonable funeral expenses and reasonable medical or hospital expenses connected to the fatal injury, under section 25(4). Funeral cost recovery is subject to a just and equitable reduction based on the deceased's age or health, and regard to religious or cultural circumstances, under section 25(5) and (6).

The Act has no solatium or grief damages head. A full text search of the Act's more than 13,000 lines finds zero uses of the word solatium anywhere. Damages are proportional loss only, the same position as NSW.

Section 26 lists a series of payments a court must not take into account when assessing damages: insurance paid on the death or injury, superannuation and provident, friendly society, benefit society or trade union payments, payment instead of leave, pension, social security or veterans benefits, a gratuity paid on death, a family member's acquisition of the deceased's home or household contents after death, and any life insurance premium that would have become payable had the person lived.

Claims for Mental Harm by Family Members

Part 3.2, sections 32 to 36, gives a family member their own claim for a diagnosed psychiatric illness. Section 32 defines family member, for this specific claim, more narrowly than section 23's death-claim definition above: a domestic partner, a parent or child, or a sibling or half-sibling, with child and parent again including step and quasi relationships.

Section 34 sets the duty of care: no duty is owed unless a reasonable person would have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness, considering factors including sudden shock, whether the plaintiff witnessed the scene, and the nature of the plaintiff-victim relationship. Section 35 bars damages for pure mental harm unless it is a recognised psychiatric illness. Section 36 extends liability for injury to the person killed, injured or imperilled to mental or nervous shock suffered by a parent or a domestic partner of the person, with no witnessing requirement for either of them, or by another family member, but for that wider category only if the family member was within the sight or hearing of the event.

Contributory Negligence: the Opposite Position From NSW

Section 27, headed Contributory negligence not defence in relation to death, states that if a person died partly because of their own failure to take reasonable care and partly because of someone else's wrong, the damages recoverable for that wrong must not be reduced because of the deceased's contributory negligence. This is a real, current contrast with NSW, where section 5T of the NSW Civil Liability Act 2002 lets a court reduce damages for the deceased's own contributory negligence. In the ACT, the shield in section 27 is still the general rule.

That shield is not absolute. Section 27(2) makes it subject to Part 7.1 of the Act, and Part 7.1 creates rebuttable presumptions of contributory negligence in specific situations: section 95 where the injured person was intoxicated, section 96 where they relied on an intoxicated person, and section 97 where they were not wearing a seatbelt. Where one of those presumptions is not rebutted, the damages must be reduced to the extent the court considers just and equitable. Part 7.1 also contains section 94, which goes further than any reduction: it excludes liability altogether where the deceased's own conduct amounted to an indictable offence that materially contributed to the risk of injury, unless the court finds the circumstances exceptional and the exclusion harsh and unjust. Outside those Part 7.1 provisions, section 27's no-reduction rule holds.

Time Limits for Filing a Claim

Section 16 of the Limitation Act 1985, Compensation to relatives, sets the period for the relatives' claim: not maintainable after the later of six years immediately following the wrongful act, neglect or default, or three years immediately following the day of death. A separate general personal injury limitation provision, section 16B, expressly excludes causes of action to which section 16 applies, so the two regimes do not overlap.

The estate's separate survival claim, for the deceased's own pre-death cause of action, is governed by the general personal injury limitation period, with a specific discretion for the court under section 38 to extend that period by up to six years from the day of death, if the court considers it just and reasonable, weighing factors including the reasons for delay and prejudice to the defendant. A related but distinct rule, section 37, protects an estate that is being sued, for example where the person responsible for the death has themselves since died: once that estate has been distributed without notice of the claim, the court cannot extend the limitation period against it unless the estate can be indemnified. It does not cut back the section 38 discretion for the deceased victim's own estate.

Motor Accident and Workplace Deaths

Where a death results from a motor vehicle accident, the ACT's compulsory third party scheme, under the Motor Accident Injuries Act 2019, is the relevant hand-off; see Motor Accident Compensation in the ACT for how that scheme works. Where a death happens at work, the Workers Compensation Act 1951 is the relevant scheme; see Workers Compensation in the ACT. This page does not restate either scheme's benefit figures.

The Coroner's Role

As in every Australian jurisdiction, an inquest investigates how and why a death occurred and can make recommendations; it is not a process for awarding compensation. This page does not detail the ACT Coroners Act 1997's own provisions.