Wrongful Death Claims in NSW: Compensation to Relatives Act 1897, Who Can Claim and Time Limits

In New South Wales, a wrongful death claim runs through two separate Acts, and a widely quoted contributory negligence protection was overridden years ago by a provision many secondary sources still miss.

NSW 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 NSW's own Acts, eligible relatives, damages, and time limits work.

The Act Behind a Wrongful Death Claim

NSW has no single wrongful death statute. Like every Australian jurisdiction, its law descends from the United Kingdom's Fatal Accidents Act 1846, known as Lord Campbell's Act, which first let a deceased person's family sue over the death itself. At common law, a person's right of action died with them, so before statutes like this existed, no one could sue simply because a wrongful act caused a death.

Under section 3(1) of the Compensation to Relatives Act 1897, a cause of action arises whenever a person's death is caused by a wrongful act, neglect or default that, had death not occurred, would have entitled the injured person to sue. The person who would have been liable remains liable to an action for damages, even where the death amounted in law to a serious indictable offence, meaning the civil claim exists independently of any criminal prosecution over the same death.

A second, separate Act, the Law Reform (Miscellaneous Provisions) Act 1944, governs what happens to the deceased's own pre-death legal claims, such as their personal injury claim for the period between injury and death. Under section 2(1), those causes of action survive for the estate. Section 2(5) makes clear the two Acts work together: the estate's survival claim exists in addition to, not instead of, the relatives' Compensation to Relatives Act claim.

Who Can Claim as an Eligible Relative

Section 4(1) names the eligible relatives exactly: the spouse, brother, sister, half-brother, half-sister, parent and child of the person whose death was caused. Section 7(4) defines spouse to include a de facto partner as well as a legally married spouse, and section 4(2) provides that where more than one person answers to spouse at once, the action is brought for the benefit of each of them separately.

Parent and child are each defined broadly under section 7(1). A parent includes a father, mother, grandfather, grandmother, stepfather, stepmother, or anyone who stood in loco parentis to the deceased. A child includes a son, daughter, grandson, granddaughter, stepson, stepdaughter, or anyone to whom the deceased themselves stood in loco parentis.

Who Brings the Claim First

Section 4(1) requires the action to be brought by and in the name of the deceased's executor or administrator, so applying for probate is usually the first practical step. Section 6B, an alternative action provision, lets an eligible relative bring the claim themselves only if there is no executor or administrator, or if the executor or administrator has not brought an action within six months of the death. Section 5 allows only one action for the same death, and section 6 requires the person suing to give full particulars of everyone the damages are being claimed for.

What Compensation Covers

Damages under sections 3(2) and 4(1) are proportioned to the financial loss the death caused to the dependants, divided among them as the court directs, plus reasonable funeral and cremation costs and the reasonable cost of a headstone.

NSW has no separate solatium or grief damages head. The only damages available are for the financial loss described as the injury resulting from the death; nothing in sections 3 to 8 provides a separate payment for grief itself. A grieving family member's own psychiatric injury can only be compensated through a nervous shock claim, covered below, not through the Compensation to Relatives Act claim.

Section 3(3) lists payments a court must not take into account when assessing damages, including insurance paid on the death, superannuation and provident, friendly society or trade union benefits, and several named historical pensions. These provisions protect the claimant; a defendant cannot argue that a payout from one of these sources should reduce the damages owed.

Separately, under the Law Reform (Miscellaneous Provisions) Act 1944 section 2(2), the deceased's own pain and suffering, bodily or mental harm, and lost life expectancy do not survive as damages the estate can claim, where the same wrongful act caused the death. Funeral expenses can still be claimed through that estate action as well.

Claims for Nervous Shock by Family Members

A close relative who suffers a diagnosed psychiatric illness because of witnessing the death, or because of their relationship to the person killed, may have a separate claim under Part 3 of the Civil Liability Act 2002, sections 27 to 33, independent of the Compensation to Relatives Act claim.

Section 30 lets a person recover only if they either witnessed, at the scene, the victim being killed, injured or put in danger, or are what the Act calls a close member of the family of the victim. Section 30(5) defines that group specifically: a parent (or a person with parental responsibility), a spouse or partner including a de facto partner, a child or stepchild, or someone for whom the victim had parental responsibility, or a sibling, half-sibling or step-sibling. Section 31 requires the harm to be a recognised psychiatric illness; ordinary grief or distress without a diagnosable condition is not compensable. Section 32 sets the duty of care itself: a defendant owes no duty unless a person of normal fortitude in the plaintiff's position could reasonably have been expected to suffer a recognised psychiatric illness. Sections 30(3) to (4) reduce the family member's own damages in the same proportion as any contributory negligence finding that would have applied to the victim's own claim, and bar the claim entirely if the victim's own claim would have been barred.

The Deceased's Contributory Negligence: A Trap to Know

An older provision, section 13 of the Law Reform (Miscellaneous Provisions) Act 1965, still on the books, says a Compensation to Relatives Act claim is not defeated, and damages are not reduced, by the deceased's own contributory negligence. Read alone, this looks like a complete shield.

It is not, and has not been for some years. Section 5T of the Civil Liability Act 2002, headed Contributory negligence, claims under the Compensation to Relatives Act 1897, expressly overrides it: the court is entitled to have regard to the deceased's contributory negligence, and section 13 of the 1965 Act does not apply so as to prevent the reduction of damages on that basis. In practice, this means a family's damages can be reduced today if the deceased person's own carelessness contributed to their death, the opposite of what section 13 alone would suggest to a reader who stops there.

Time Limits for Filing a Claim

Two regimes can apply, depending on when the wrongful act or omission happened. For most modern claims, Division 6 of the Limitation Act 1969, sections 50A to 50C, governs both the relatives' claim and the estate's survival claim. Section 50C sets a limitation period of three years from the date the claim becomes discoverable by the plaintiff, or twelve years from the wrongful act or omission, whichever ends first. Section 50C(3) specifically provides that for a Compensation to Relatives claim, that twelve year long stop runs from the date of death itself.

An older provision, section 19, still applies to claims falling outside Division 6's scope: six years from the date of death for a cause of action that accrued before 1 September 1990, or three years from the date of death for one accruing on or after that date. Division 6 does not apply to Motor Accident Injuries Act 2017 claims, which run their own limitation rules under that scheme.

Motor Accident and Workplace Deaths

Where a death results from a motor vehicle accident, a separate no-fault compulsory third party scheme, administered under the Motor Accident Injuries Act 2017, covers funeral expenses and a dependency payment regardless of fault. See Motor Accident Compensation in NSW for how that scheme works; this page does not restate its benefit figures.

Where a death happens at work, the Workers Compensation Act 1987, sections 25, 26 and 28 to 32, provides a lump sum death benefit apportioned among dependants, plus weekly payments to dependent children until 16, or 21 if still a student, and funeral expenses. See Workers Compensation in NSW for the current benefit amounts.

The Coroner's Role

A coronial inquest is not a compensation process. Under the Coroners Act 2009, section 81, a coroner concluding an inquest records findings on whether the person died and, if so, their identity and the date, place, manner and cause of death, and may make recommendations. Section 81(3) specifically prevents a coroner's finding from indicating or suggesting that any person has committed an offence. An inquest can produce evidence relevant to a later civil claim, but it does not itself award, or have the power to award, compensation.

The Victims Support Scheme's Recognition Payment

Where a death is a homicide, a separate scheme run under the Victims Rights and Support Act 2013 pays a fixed recognition payment to certain family victims: $15,000 for a financially dependent family victim, or for a child under 18 at the time of the death, and $7,500 for a parent, step-parent, guardian, spouse or de facto partner. The payment is made under a different Act with its own homicide-based eligibility test, but it is not fully independent of a Compensation to Relatives Act claim. Section 44(4) of the Victims Support Act 2013 requires the Scheme Executive to have regard to any damages the applicant has received, or is entitled to receive, in civil proceedings when setting the amount, and section 44(6A) directs it to postpone a family victim's application until any Compensation to Relatives Act entitlement has been determined.