Wrongful Death Claims in South Australia: Civil Liability Act 1936, Solatium and Time Limits

In South Australia, a deceased person's spouse, domestic partner, parent, sibling or child can claim compensation under Part 5 of the Civil Liability Act 1936, and unlike most other states, a surviving spouse or the parents of a killed child may also receive a solatium payment for grief, though the cap on that payment has not changed since 1974.

Wrongful death claims work differently in every Australian state and territory. See our overview of wrongful death claims in Australia for how the different claim types and jurisdictions compare.

Who can bring a claim and under which Act

South Australia's wrongful death claim sits in Part 5 of the Civil Liability Act 1936, sections 23 to 30. That Act was formerly called the Wrongs Act 1936, and the current text still records the earlier name. Section 23 creates the cause of action in essentially the same terms as the other states' Acts: where death is caused by a wrongful act that would have entitled the injured person to sue had they lived, the party responsible remains liable for damages.

The claim is brought by and in the name of the deceased's executor or administrator, for the benefit of the relatives listed in section 24(1). If the deceased is survived by both a spouse and a domestic partner, the claim is brought for the benefit of both (section 24(4)), and a listed relative can renounce their share by written notice to the executor or administrator (section 24(5)). Only one action can be brought for the same death, and it must be commenced within three years of the death, both set out in section 25. If there is no executor or administrator, or they do not bring a claim within six months of the death, the eligible relatives may sue directly (section 27).

The family's claim and the estate's claim are separate

As in other states, South Australia keeps two claims apart. The Civil Liability Act Part 5 claim belongs to the family, for their own loss. A second claim belongs to the deceased's estate, under the standalone Survival of Causes of Action Act 1940. Section 2 of that Act preserves the deceased's own causes of action so they survive for the estate, except for defamation, and section 6(1) confirms the two claims are concurrent rather than substitutes for each other.

One caution about section 4 of the Survival of Causes of Action Act: it imposes six-month conditions on proceedings against the estate of a deceased person, the situation where the person responsible has died and someone wants to sue their estate. It does not gate the claim this page is about, where the deceased was the victim and their own cause of action survives for the benefit of their estate; that claim's timing is governed by the ordinary limitation period as extended by section 46A. The six-month framing there is separate from the six-month rule in section 27 that lets relatives sue directly.

Who counts as an eligible relative

Section 24(1) of the Civil Liability Act limits the benefit of a dependants' claim to the spouse, domestic partner, parent, brother, sister and child of the deceased. This is a narrower, more tightly defined list than some other Australian jurisdictions use, and does not extend to grandparents, grandchildren or step-relations by name.

What compensation covers, including the solatium payment

The ordinary dependency claim compensates for loss proportioned to the harm the family suffers from the death (section 24(2)), plus medical and funeral expenses actually incurred (section 24(2a)). Certain benefits are excluded from the calculation, including insurance payouts, death gratuities, superannuation, and Commonwealth, UK or South Australian social service pensions (section 24(2aa)).

South Australia is unusual among Australian states in also providing a solatium, a fixed payment for the grief the death causes, separate from financial loss:

• Section 28 lets a court award solatium to the parents of a wrongfully killed child, capped at $10,000 for deaths after the Wrongs Act Amendment Act 1974 commenced. Where both parents claim, the $10,000 is divided between them, not doubled.
• Section 29 lets a court award solatium to a surviving spouse or domestic partner, on the same $10,000 cap. If the deceased is survived by both a spouse and a domestic partner, the combined solatium still cannot exceed $10,000, apportioned between them by the court.
• Section 30 makes solatium discretionary. A court may decline to award it, having regard to the claimant's conduct toward the deceased, their relationship, or any other sufficient reason. If a claimant dies before recovering a solatium payment, the claim does not survive for their own estate (section 30(3)).
• Only parents of a killed child and the spouse or domestic partner of a killed spouse can receive solatium. A sibling or child of a deceased parent can still bring an ordinary dependency claim under section 24, just not a solatium claim.

The $10,000 cap has not been increased, or indexed to inflation, since 1974. The Civil Liability Act does use CPI indexation for other dollar figures elsewhere in the Act, which makes the absence of any indexation clause for the solatium sections a deliberate contrast rather than an oversight. In practical terms, a cap fixed in 1974 dollars is worth a fraction of its original value roughly fifty years later.

Part 8 of the Civil Liability Act, which sets general caps on personal injury damages, also applies to Part 5 death claims (section 51(1)(b)). Section 54(3) caps the total amount that can be awarded for a dependant's economic loss, separate from expenses such as funeral costs. The cap, called the prescribed maximum, is defined inside the Act itself at section 3 as a CPI-indexed formula off a $2.2 million base for accidents in 2002; the exact current-year figure was not calculated for this article.

The estate's claim under the Survival of Causes of Action Act 1940 excludes pain and suffering, bodily or mental harm, curtailment of life expectancy, lost future earning capacity, and exemplary damages, though funeral expenses remain recoverable. A specific exception applies where the deceased had already started a dust-disease claim, such as for asbestosis, mesothelioma or silicosis, and died before it was determined: in that situation, the full range of otherwise-excluded damages becomes available to the estate (section 3(2)).

Psychiatric injury claims by relatives

South Australia has two separate provisions that matter for a relative's psychiatric injury claim, not one. Section 33 sets the general duty-of-care gate: there is no duty to avoid causing mental harm unless a reasonable person would have foreseen that someone of normal fortitude might suffer a recognised psychiatric illness, weighing factors such as sudden shock, whether the claimant witnessed the death or injury at the scene, and the nature of the relationship involved.

Section 53 is a separate, more specific damages-award gate, and it does use a defined relatives list. Damages for mental harm can only be awarded if the claimant was physically injured or present at the scene, or is a parent, spouse, domestic partner or child of the person killed, injured or endangered. Either way, the harm has to amount to a recognised psychiatric illness, not ordinary grief.

The deceased's own contributory negligence

Section 45 of the Civil Liability Act is a dedicated provision headed contributory negligence in cases brought on behalf of dependants of a deceased person. It requires the court to have regard to any contributory negligence on the part of the deceased when assessing the dependants' damages under Part 5.

The estate's claim is subject to a similar rule through a different Act: section 6(2) of the Survival of Causes of Action Act 1940 applies the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 to a surviving cause of action. In both cases, if the deceased contributed to their own death, the compensation awarded can be reduced accordingly.

Time limits

A dependants' claim under Part 5 must be commenced within three years of the death (section 25). This period sits inside the Civil Liability Act itself, not the separate Limitation of Actions Act 1936, which is a genuine trap for anyone who assumes the general Limitation of Actions Act governs fatal claims. That Act's own personal injury period, in section 36, covers ordinary injury claims rather than Part 5 death claims specifically.

The estate's survival claim runs on the limitation period of the underlying cause of action, typically the three-year personal injury period in section 36 of the Limitation of Actions Act, from when the injury was first known about. Section 46A of that Act adds a death-triggered extension for survival claims: the time limit is extended by the period between the death and the grant of probate or letters of administration, or twelve months, whichever is shorter.

The Limitation of Actions Act also allows an extension of up to thirty years where the claimant was a minor or under a legal disability (section 45). Whether that extension reaches the Civil Liability Act's own three-year fatal-claim period was not directly confirmed for this article, though the wording of section 45 is broad enough that it plausibly does.

Motor vehicle and workplace deaths

A death caused by a motor vehicle accident in South Australia is handled through the state's compulsory third-party insurance scheme, regulated since 2016 by the CTP Insurance Regulator. South Australia's scheme is fault-based, run by privately underwritten insurers, rather than a no-fault statutory death benefit, so a claim proceeds against the at-fault driver's CTP insurer under the ordinary Part 5 process. For the current claims process, see motor accident compensation in South Australia.

A workplace death is covered separately under the Return to Work Act 2014, administered by ReturnToWorkSA. For current death-benefit figures and the claims process, see workers compensation in South Australia.

The coroner's role

A death investigated by the Coroner's Court under the Coroners Act 2003 is a fact-finding process, not a compensation process. The Court must give written findings on the cause and circumstances of a death as soon as practicable after an inquest, and may add recommendations aimed at preventing similar deaths (section 25(1) to (2)).

Section 25(3) is explicit: the Court must not make any finding, or suggestion, of criminal or civil liability. An inquest's findings can still inform a later civil claim as evidence, but they cannot determine who is liable or award any compensation.

Frequently Asked Questions

Who can bring a wrongful death claim in South Australia?

The deceased's spouse, domestic partner, parent, brother, sister or child, under section 24(1) of the Civil Liability Act 1936. The claim is brought by the deceased's executor or administrator for their benefit.

What is solatium and who can get it in South Australia?

Solatium is a payment for grief, separate from financial loss. In South Australia, it is available only to the parents of a wrongfully killed child (section 28) or to a surviving spouse or domestic partner (section 29), capped at $10,000.

Has South Australia's $10,000 solatium cap ever been increased?

No. The cap was set by the Wrongs Act Amendment Act 1974 and has not been indexed or increased since, even though the Civil Liability Act uses inflation indexing for other dollar figures elsewhere in the Act.

How long do we have to bring a wrongful death claim in South Australia?

Generally three years from the date of death, under section 25 of the Civil Liability Act 1936. This limitation period sits inside the Civil Liability Act itself rather than the general Limitation of Actions Act.

Does the deceased's own fault reduce the family's compensation?

Yes. Section 45 of the Civil Liability Act specifically requires the court to have regard to the deceased's own contributory negligence when assessing a dependants' claim.

What if the death happened in a car accident or at work?

Those deaths are generally handled through South Australia's compulsory third-party insurance scheme or the Return to Work Act 2014 workers compensation system, which run alongside or instead of a Part 5 claim. See our guides to motor accident compensation and workers compensation in South Australia for the current process.