Wrongful Death Claims in Victoria: The Wrongs Act, Who Can Claim and Time Limits

In Victoria, a wrongful death claim runs through two separate laws, the Wrongs Act 1958's Part III dependants' claim and the Administration and Probate Act 1958's survival claim for the estate, and a distinctive Victorian rule protects the dependants' claim from being reduced for the deceased's own contributory negligence.

Victoria 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 Victoria's own Acts, eligibility test and time limits work.

Two Claims, Two Acts

Victoria's wrongful death law is split across two separate Acts rather than one. The dependants' claim, sometimes called the fatal accidents cause of action, sits in the Wrongs Act 1958, Part III, "Wrongful act or neglect causing death" (sections 16 to 23AE). Section 16 creates the underlying liability: if a wrongful act, neglect or default causes a death, and that conduct would have entitled the injured person to sue had they lived, the person responsible remains liable to an action for damages despite the death. Section 17(1) provides that the action is brought "for the benefit of" the deceased's dependants, and it must be brought by and in the name of the deceased's executor or administrator. Section 18 gives the dependants 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 own claim is governed by a different Act entirely: the Administration and Probate Act 1958, section 29, "Effect of death on certain causes of action." Section 29(1) provides that, on death, causes of action the deceased held (other than defamation, seduction, or inducing a spouse to leave) survive for the benefit of the estate. Section 29(2)(c) then excludes several heads of damage specific to a death claim: the estate cannot recover for the deceased's own pain and suffering, bodily or mental harm, or curtailment of their expectation of life, and cannot recover the deceased's lost future earnings for any period after death, though a sum for funeral expenses may be included. Section 29(5) confirms the estate's survival rights are "in addition to and not in derogation from" the dependants' Part III rights, meaning the two claims run together rather than as alternatives.

Who Can Claim: A Functional Dependency Test

Victoria does not name categories of eligible relative the way some other states do. Section 17(2) of the Wrongs Act defines "dependants" as "such persons as were wholly, mainly or in part dependent on the person deceased at the time of his death or who would but for the incapacity due to the injury which led to the death have been so dependent." This is a purely functional test based on actual or expected financial dependency, not a fixed list of relationship categories such as spouse, child or parent. A person outside any conventional family category can still qualify if they meet the dependency test, and a named relative who was not financially dependent on the deceased may not.

The executor or administrator brings the claim first, on behalf of the dependants collectively. Section 21 requires the statement of claim to set out particulars of each person for whose benefit the action is brought, including their date of birth, the deceased's date of birth, and the deceased's employment and earnings history for the 12 months before the fatal injury.

What Compensation Covers

The Wrongs Act's Part III damages are dependency based. Sections 19A and 19B allow damages for the loss of gratuitous domestic services or care the deceased provided, but only where the care was provided for at least six hours a week for at least six consecutive months before the death, or there was a reasonable expectation it would have been; the rate is capped by reference to Victoria's average weekly total earnings figures. Section 19(1) excludes from the assessment any life insurance or assurance payout made on the death, any superannuation or provident fund payout, and any government pension, benefit or allowance a beneficiary receives under Commonwealth, state or other law, whoever it is paid to. Sections 19(2) to 19(4) prevent any reduction in damages because a surviving spouse or domestic partner remarries or might remarry. Funeral expenses are recovered through the separate Administration and Probate Act estate claim, not through Part III itself.

Victoria has no solatium or grief-damages head. A full-text review of the current Wrongs Act, across all of Part III and the Act generally, found no reference to "solatium" or "grief" anywhere in the text. The damages provisions cover dependency loss and gratuitous-care loss; there is no separate payment for a surviving relative's grief. General civil-liability caps on non-economic loss (Wrongs Act Part VB) are defined broadly enough to apply to a death claim, but their machinery targets pain, suffering and loss of amenity, heads of damage the estate claim already excludes and that a dependants' claim does not seek in the first place, so they have little practical bearing on an ordinary Part III or estate claim.

The Deceased's Contributory Negligence

Victoria has a distinctive rule here. Section 26(1) of the Wrongs Act allows the ordinary reduction of damages "to such extent as the court thinks just and equitable" for a claimant's own contributory negligence. But section 26(4) carves out the dependants' claim specifically: where a person dies partly from their own contributory negligence and partly from another person's wrong, an action brought by the dependants under Part III "shall not be defeated nor shall any damages recoverable by those dependants... be reduced by reason of that first-mentioned person's contributory negligence." In other words, the deceased's own share of fault does not reduce what the dependants can recover under Part III at all, a materially more favourable rule than a straightforward proportionate reduction.

Nervous Shock Claims by Relatives

A close relative's own psychiatric injury is a separate cause of action, governed by the Wrongs Act's Part XI, "Mental harm" (sections 67 to 78). Section 72 sets a foreseeability-based duty of care, and section 73 limits recovery for pure mental harm arising from shock connected to another person being killed, injured or put in danger: the plaintiff must either have witnessed the event at the scene, or have been in a "close relationship" with the person who died. Victoria's Act does not statutorily define "close relationship" or list qualifying relatives, unlike some other jurisdictions, which leaves that question to case law rather than a fixed statutory list.

Time Limits

The plain text of the Wrongs Act, section 20(1), suggests a six-year limitation period from the date of death. That figure does not actually apply to an ordinary Part III claim. Section 20(7) expressly disapplies section 20 for any cause of action covered by Part IIA of the Limitation of Actions Act 1958. Part IIA instead governs, and its section 27D rule is whichever expires first: three years from the date the cause of action is discoverable, or 12 years from the act or omission, a long-stop. Two further provisions adjust this for a Part III death claim specifically: section 27F(4) provides that a Part III cause of action "is not discoverable before the date of death," so the three-year clock cannot start before the date of death, and section 27H deems the 12 year long-stop to run from the date of death rather than from the earlier wrongful act. In practice, a Wrongs Act dependants' claim in Victoria runs on three years from discoverability, no earlier than the date of death, with a 12 year outer limit measured from the date of death, not the six years the bare text of section 20 alone would suggest.

Motor and Workplace Deaths

Where the death was caused by a motor vehicle accident, Victoria's no-fault Transport Accident Commission scheme, under the Transport Accident Act 1986, generally applies instead of an ordinary common-law claim. As of 1 July 2026, the TAC's published benefits include funeral and monument expense support, travel, accommodation and counselling support, one-off dependency lump sums for a dependent spouse or partner and for dependent children, and ongoing periodic payments. The current dollar figures index over time, so see Motor Accident Compensation in Victoria for the current position rather than relying on a fixed number here.

A workplace death runs through WorkSafe Victoria, under the Workplace Injury Rehabilitation and Compensation Act 2013, which pays a dependency lump sum, weekly pension benefits to a dependent partner for three years, and pension support for dependent children. WorkSafe's own guidance confirms that any entitlements it has already paid are deducted from a subsequent Wrongs Act damages claim, so the two are not simply additive. See Workers Compensation in Victoria for detail.

The Coroner's Role

An inquest is not a compensation process. The Coroners Act 2008 requires a coroner investigating a death to find, where possible, the identity of the deceased, the cause of death and the circumstances in which it occurred (section 67), and allows the coroner to make recommendations aimed at preventing further deaths. Section 69 expressly bars a coroner from including in any finding or comment a statement that a person is, or may be, guilty of an offence. Nothing in the Coroners Act gives a coroner power to award compensation; that remains entirely a matter for a Wrongs 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 Part III claim, see Victoria Probate.

Frequently Asked Questions

Who can bring a wrongful death claim in Victoria?

The deceased's executor or administrator brings the claim first, under Wrongs Act 1958 Part III, for the benefit of the deceased's dependants. If there is no executor or administrator, or none has sued within six months of the death, the dependants can bring the action themselves under section 18.

Does Victoria have a fixed list of relatives who can claim?

No. Section 17(2) of the Wrongs Act defines "dependants" by a functional test: anyone who was wholly, mainly or partly financially dependent on the deceased, or would have been but for the incapacity that led to the death, rather than a fixed list of relationship categories.

Can families claim solatium or grief damages in Victoria?

No. A full-text review of the current Wrongs Act found no reference to solatium or grief anywhere in Part III or the Act generally. Damages are limited to dependency loss and, where a threshold is met, loss of the deceased's gratuitous care.

Does the deceased's own fault reduce what their dependants can recover?

Not under Part III. Section 26(4) of the Wrongs Act specifically protects the dependants' claim, providing that it is not defeated and damages are not reduced because of the deceased's own contributory negligence, a distinctly Victorian rule.

How long do dependants have to bring a claim in Victoria?

Three years from when the cause of action is discoverable, which cannot be earlier than the date of death, and a 12 year long-stop from the date of death, under Part IIA of the Limitation of Actions Act 1958. The Wrongs Act's own six-year figure in section 20 is disapplied for these claims.

What if the death was caused by a road accident or a workplace incident?

Those deaths generally run through Victoria's no-fault schemes instead, the Transport Accident Commission for motor vehicle deaths and WorkSafe Victoria for workplace deaths, rather than an ordinary Wrongs Act claim, though a Wrongs Act claim can still follow a WorkSafe claim with WorkSafe's payments deducted from it.