Wrongful Death Claims in Tasmania: The Fatal Accidents Act, Who Can Claim and Time Limits

In Tasmania, a wrongful death claim runs through the Fatal Accidents Act 1934, which names the eligible family members rather than testing dependency, and the deceased's own contributory negligence proportionately reduces what those family members can recover.

Tasmania is one of eight jurisdictions covered in our Australia Wrongful Death hub, which explains the three claim families common to every state and territory, the dependants' claim, the estate's survival claim, and the nervous shock claim. This page covers how Tasmania's own Acts, eligible family members and time limits work.

Two Claims, Two Acts

Tasmania's wrongful death law, like Victoria's, is split across two separate Acts. The dependants' claim sits in the Fatal Accidents Act 1934 (Tas). Section 4 creates the underlying liability in near-identical drafting to other Australian jurisdictions: whenever a death is caused by wrongful act, neglect or default that would, had death not ensued, have entitled the injured person to sue, the person liable remains liable to an action for damages, "and although the death shall have been caused under such circumstances as amount in law to a crime," a phrase specific to Tasmania's Act. Section 5 provides that the action is brought "for the benefit of the members of the family" of the deceased, by and in the name of the executor or administrator. Section 8 gives family members a fallback right to sue directly if there is no executor or administrator, or if the executor or administrator has not brought the action within six months of the death.

The estate's survival claim is governed by a separate Act: the Administration and Probate Act 1935, section 27, "Rights of action by and against personal representatives." Section 27(1) provides that, on death, causes of action the deceased held survive for the benefit of the estate. Section 27(3) excludes several heads of damage from that estate claim where the death itself was caused by the act or omission being sued on: no exemplary damages, no damages for the deceased's own pain and suffering, bodily or mental harm, or curtailment of expectation of life, and no future probable earnings for any period after death, subject to a narrow carve-back for dust-related conditions such as asbestosis where proceedings were already on foot before death. Section 27(9) confirms the estate's rights are "in addition to and not in derogation of" the family members' Fatal Accidents Act rights, so the two claims run together rather than as alternatives.

Who Can Claim: A Named List of Family Members

Tasmania takes a different approach from Victoria's functional dependency test. Section 3 of the Fatal Accidents Act defines "member of the family" as an enumerated list: "that person's (a) spouse, partner, parent, stepparent, grandparent, child, stepchild or grandchild; or (b) brother, sister, half-brother or half-sister." "Partner" is separately defined as someone who, at the time of the wrongful act, neglect or default, was in a personal relationship with the deceased within the meaning of the Relationships Act 2003 (Tas), a registered or otherwise recognised personal relationship rather than a bare dependency test. Whether a family member also needs to show they were financially dependent on the deceased is a different question from simply falling within this list; the Act's own damages provision (section 5) assesses each family member's damages by reference to the injury the death caused them, but eligibility to bring the claim at all turns on the section 3 categories, not on proof of dependency.

The executor or administrator brings the action first, on behalf of the family members named in the claim. Section 7 requires the plaintiff to deliver full particulars, with the statement of claim, of the persons for whom the action is brought and the nature of the claim.

What Compensation Covers

The Fatal Accidents Act's damages are "proportioned to the injury resulting from such death" to each family member (section 5). Tasmania is unusual in that funeral and related expenses sit directly in the Fatal Accidents Act itself rather than in the separate survival-of-actions Act. Section 10(2) allows damages for the expenses of the funeral or cremation, the reasonable cost of a headstone or tombstone, and hospital and medical expenses incurred because of the wrongful act causing the death, recoverable whether or not the family members suffered any other financial loss from the death. Section 10(1) excludes several items from the damages assessment: life insurance or assurance payouts, the value of any part of the deceased's estate passing to family members except so far as it exceeds $250,000, a figure that does not appear to be indexed anywhere in the Act, superannuation, provident fund, friendly society or trade union benefit payouts, and Commonwealth veterans' or social security pensions.

Tasmania has no solatium or grief-damages head. A full-text search of the Fatal Accidents Act, the Limitation Act and the Civil Liability Act, plus the Administration and Probate Act's estate-claim provisions, found no reference to "solatium" or "grief" anywhere. Section 10(2)'s funeral, headstone and medical-expenses list, together with section 5's dependency-proportioned damages, is exhaustive of what the Act provides.

A separate civil-liability cap bites directly on Fatal Accidents Act claims. Civil Liability Act 2002 section 26(1) provides that where damages are claimed for loss of earning capacity, including a claim made "pursuant to the Fatal Accidents Act 1934," a court must not award those damages on the basis a person was, or may have been, capable of earning more than three times the adult average weekly earnings last published by the Australian Bureau of Statistics before the damages are awarded. A separate non-economic-loss threshold in section 27 of the same Act targets pain, suffering and loss of amenity, heads of damage the Fatal Accidents Act does not award to family members and the estate claim already excludes, so it has little practical bearing on an ordinary Fatal Accidents Act or estate claim.

The Deceased's Contributory Negligence

Tasmania's contributory-negligence rule for a fatal claim sits in yet another Act, the Wrongs Act 1954 (Tas), a different and narrower Act from Victoria's Wrongs Act 1958 and from Tasmania's own Fatal Accidents Act. Section 2 of the Wrongs Act 1954 defines a "dependant" as a person for whose benefit an action could be brought under the Fatal Accidents Act 1934, tying the two Acts together directly. Section 4(1) allows damages to be reduced, up to 100 percent, to the extent the court thinks just and equitable, having regard to a claimant's own share of responsibility for the damage. Section 4(4) then sets the specific fatal-claims rule: where a person dies partly from their own wrongful act and partly from another person's wrongful act, and an estate claim under the Administration and Probate Act 1935 would be reduced under section 4(1), "any damages recoverable in an action brought for the benefit of the dependants of the person under the Fatal Accidents Act 1934 shall be reduced to a proportionate extent." In other words, Tasmania follows the majority approach: the deceased's own contributory negligence proportionately reduces both the estate's survival claim and the family members' Fatal Accidents Act claim. This is the opposite of Victoria, where the equivalent Wrongs Act provision specifically protects the dependants' claim from any reduction at all.

Nervous Shock Claims by Relatives

A close family member's own psychiatric injury is a separate cause of action under the Civil Liability Act 2002, Part 8, "Mental Harm" (sections 29 to 35). Section 32 limits recovery for pure mental harm arising from shock connected to another person being killed, injured or put in peril: the plaintiff must either have witnessed the event, or its immediate aftermath, at the scene, or be a "close member of the family" of the victim. Unlike Victoria, which leaves this term undefined, Tasmania statutorily defines it with a named list at section 32(3): a parent of the victim or other person with parental responsibility for the victim, the spouse of the victim (a term separately defined to include a de facto spouse, with a tie-break rule if more than one person would otherwise qualify), a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or a brother, sister, half-brother, half-sister, stepbrother or stepsister of the victim. Section 33 further requires that the psychiatric injury be a recognised psychiatric illness before it is compensable.

Time Limits

The Limitation Act 1974's general default, section 4(1)(a), gives six years from accrual for an action founded on contract or tort. That figure is not the operative period for a Fatal Accidents Act claim. The controlling provision is section 5A: subsection (3) requires an action for damages for negligence, nuisance or breach of duty that includes damages for personal injury to be brought within three years of the date of discoverability, and subsection (4) states plainly that "an action for damages under the Fatal Accidents Act 1934 in respect of the death of a person is taken to be an action referred to in subsection (3)" - so a Fatal Accidents Act claim is deemed a personal-injury action, and the three-year discoverability period applies rather than the six-year general default. Section 5A(5) gives a judge discretion to extend that period to six years from discoverability if just and reasonable, and section 5A(6) sets the discoverability test for a personal representative plaintiff. No express 12 year long-stop provision, of the kind Victoria has, was found in section 5A or elsewhere in the sections reviewed for this page; that absence has not been confirmed with the same certainty as the solatium finding above, so treat it as an open question rather than a settled negative. Section 26A suspends the running of time for a minor or other person under disability for each period they lack a capable parent or unconflicted representative, rather than applying a fixed age-based rule, and section 5B removes any limitation period at all for a claim arising from the sexual abuse or serious physical abuse of the deceased as a minor.

Motor and Workplace Deaths

Where the death was caused by a motor vehicle accident, Tasmania's no-fault Motor Accidents Insurance Board scheme, under the Motor Accidents (Liabilities and Compensation) Act 1973, generally applies instead of an ordinary claim. As of the MAIB's current published figures, benefits include a funeral and cremation benefit, a dependants' death-benefit lump sum, an additional lump sum where the deceased is survived by two or more dependants including a dependant child, and counselling support for immediate family members. See Motor Accident Compensation in Tasmania for the current position rather than relying on a fixed figure here.

A workplace death runs through WorkSafe Tasmania, under the Workers Rehabilitation and Compensation Act 1988, which has a dedicated claim pathway for the dependants or family members of a deceased worker. See Workers Compensation in Tasmania for the current benefit structure.

The Coroner's Role

An inquest is not a compensation process. The Coroners Act 1995 requires a coroner investigating a death to find, where possible, the identity of the deceased, how death occurred, the cause of death, and when and where it occurred (section 28), and to make recommendations aimed at preventing further deaths where appropriate. Section 28(4) bars a coroner from including in any finding or comment a statement that a person is, or may be, guilty of an offence, the same rule Victoria applies. Nothing in the Coroners Act gives a coroner power to award compensation; that remains a matter for a Fatal Accidents Act or Administration and Probate Act claim brought separately in a court.

For the probate process an executor or administrator must go through before bringing a Fatal Accidents Act claim, see Tasmania Probate.

Frequently Asked Questions

Who counts as a member of the family under Tasmania's Fatal Accidents Act?

Section 3 defines "member of the family" as a spouse, partner (in a personal relationship under the Relationships Act 2003, registered or proved on the facts), parent, stepparent, grandparent, child, stepchild or grandchild, or a brother, sister, half-brother or half-sister. This is a named list, unlike Victoria's functional dependency test.

Who brings the claim?

The deceased's executor or administrator brings the action first, under section 5, for the benefit of the named family members. If there is no executor or administrator, or none has sued within six months of the death, the family members can bring the action themselves under section 8.

Does Tasmania pay solatium or grief damages?

No. A full-text search across the Fatal Accidents Act, the Administration and Probate Act, the Limitation Act and the Civil Liability Act found no reference to solatium or grief in any of them. Recoverable damages are dependency loss plus funeral, headstone and medical expenses under section 10(2).

Does the deceased's own fault reduce what family members can recover in Tasmania?

Yes, proportionately. Section 4(4) of the Wrongs Act 1954 provides that where the estate's survival claim would be reduced for the deceased's contributory negligence, the family members' Fatal Accidents Act claim is reduced to a proportionate extent as well.

How long do family members have to bring a claim in Tasmania?

Three years from the date of discoverability, under Limitation Act 1974 section 5A(4), which deems a Fatal Accidents Act claim to be a personal injury action. A court may extend this to six years if just and reasonable. No express long-stop provision was located in the sections reviewed.

Is there a cap on damages in Tasmania?

Civil Liability Act 2002 section 26(1) caps earning-capacity damages at three times the adult average weekly earnings published by the Australian Bureau of Statistics, and names claims made pursuant to the Fatal Accidents Act 1934 specifically.

What about a motor vehicle or workplace death in Tasmania?

Those generally run through Tasmania's own no-fault schemes instead, the Motor Accidents Insurance Board for motor vehicle deaths and WorkSafe Tasmania for workplace deaths, rather than an ordinary Fatal Accidents Act claim.