Wrongful Death Claims in Western Australia: Fatal Accidents Act 1959, Who Can Claim and Time Limits

In Western Australia, a defined list of relatives, including a spouse or long-term de facto partner, parents, grandparents, children, siblings, step-relations, and even a former spouse the deceased was legally obliged to support, can claim compensation under the Fatal Accidents Act 1959, and the claim generally must be brought within three years of the death.

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

A wrongful death claim in Western Australia is brought under the Fatal Accidents Act 1959. Section 4 creates the cause of action: where a death is caused by a wrongful act, neglect or default that would have entitled the injured person to sue had they lived, the person who would have been liable remains liable to an action for damages despite the death.

The action is brought by and in the name of the deceased's executor or administrator, for the benefit of the relatives listed in Schedule 2 (section 6). Only one action can be brought for the same death (section 7). If there is no executor or administrator, or if they do not bring a claim within six months of the death, the eligible relatives may bring the action directly (section 9).

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

Western Australia runs two distinct legal tracks after a wrongful death, and it matters which one a family is pursuing.

The Fatal Accidents Act 1959 claim belongs to the relatives, for their own loss of dependency. A second, separate claim belongs to the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1941. Section 4 of that Act preserves the deceased's own causes of action (such as a personal injury claim already accruing before death) so they survive for the estate, except for defamation, seduction, or inducing a spouse to leave or remain apart.

The estate's claim is narrower than it sounds. It cannot include damages for the deceased's own pain and suffering, bodily or mental harm, or the shortening of their life expectancy, unless the death arose from an asbestos-related or, since a 2024 amendment, a silica-dust-related disease and proceedings were already underway before death. It also cannot include the deceased's lost future earnings for the period after death. Funeral expenses, however, are recoverable through the estate claim.

Who counts as an eligible relative

Schedule 2 to the Fatal Accidents Act 1959 sets out an exhaustive list of who can benefit from a claim. It is broader than a simple spouse, children and parents list:

• A spouse, or a de facto partner who lived with the deceased for at least two years immediately before the death
• A parent, grandparent or step-parent
• A son, daughter, grandson, granddaughter, stepson or stepdaughter
• Anyone who stood in loco parentis to the deceased, or to whom the deceased stood in loco parentis
• A brother, sister, half-brother or half-sister
• A former spouse or former de facto partner the deceased was legally obliged to support financially immediately before the death

What compensation covers

Damages under the Fatal Accidents Act are proportioned to the loss suffered by the relatives for whose benefit the claim is brought (section 6(2)). Medical expenses arising from the fatal injury and funeral expenses can also be recovered, if they were incurred by the people the claim benefits (section 5(1)).

Certain benefits are not deducted from the award: life insurance payouts, superannuation or pension-fund benefits, and Commonwealth or State pensions are all excluded from the calculation (section 5(2)).

There is no solatium or grief payment available in Western Australia. The word solatium does not appear anywhere in the Fatal Accidents Act 1959, the Law Reform (Miscellaneous Provisions) Act 1941, or the Civil Liability Act 2002. Compensation covers financial loss and the two expense categories above, not a separate sum for grief.

The estate's claim under the Law Reform (Miscellaneous Provisions) Act 1941 excludes exemplary damages, caps breach-of-promise damages to actual loss, and (subject to the asbestos and silica-disease exceptions above) leaves out the deceased's own pain and suffering, bodily or mental harm, curtailment of life expectancy, and lost future earning capacity for the period they would have survived.

Psychiatric injury claims by relatives

A relative who suffers a recognised psychiatric illness after a death may bring a separate mental harm claim under Part 1B of the Civil Liability Act 2002. There is no duty of care to avoid causing psychiatric harm unless the defendant ought reasonably to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness in the circumstances (section 5S).

For a pure mental harm claim, the court weighs factors including whether the harm resulted from sudden shock, whether the claimant witnessed the death, injury or danger at the scene, the nature of the relationship between the claimant and the person killed or injured, and any pre-existing relationship between the claimant and the person responsible. Unlike some other states, Western Australia does not use a fixed list of qualifying close family members. Eligibility turns on this relationship and foreseeability test rather than on membership of a defined class.

The deceased's own contributory negligence

If the deceased was partly responsible for the accident or event that killed them, that share of fault reduces the compensation available. The Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 sets the general rule that a court reduces damages to the extent it thinks just, rather than barring the claim outright.

Section 4(2) of that Act expressly extends this apportionment to Fatal Accidents Act claims and to the estate's Law Reform (Miscellaneous Provisions) Act claim, directing that the deceased be treated as the plaintiff for this purpose. In practice, this means a court can reduce both the family's dependency damages and the estate's damages by the deceased's own share of fault.

Time limits

A Fatal Accidents Act claim must be commenced within three years of the date of death (Limitation Act 2005, section 14(2)). This is a flat three-year period running from death, not from when the loss was discovered.

The estate's survival claim under the Law Reform (Miscellaneous Provisions) Act 1941 does not have its own dedicated limitation section; it runs on the Limitation Act 2005's ordinary three-year personal injury period. Section 57 of that Act then deems the cause of action to accrue at the date of death whenever it had not already accrued before then, which covers the typical fatal accident, so in practice the estate claim's three-year clock usually starts on the same date as the Fatal Accidents Act claim's. The narrower situation to watch is where the deceased already had an accrued personal injury claim before dying, for example an earlier-manifesting condition they knew about; in that case the clock can have started before the death and the grant of probate, was not confirmed in the sections reviewed for this article. Families should check this directly with a lawyer rather than assume either way.

Motor vehicle and workplace deaths

A death caused by a motor vehicle accident in Western Australia runs through the state's compulsory third-party insurance scheme under the Motor Vehicle (Third Party Insurance) Act 1943. Western Australia's scheme is fault-based rather than a no-fault statutory benefit, so the claim proceeds against the at-fault driver's insurer. For the current claims process and benefits, see motor accident compensation in Western Australia.

A workplace death is covered separately under the Workers Compensation and Injury Management Act 2023. For current death-benefit figures and the claims process, see workers compensation in Western Australia.

The coroner's role

A death that is reported to the coroner triggers an investigation under the Coroners Act 1996, not a compensation process. The coroner must try to establish the identity of the deceased, how and why they died, and the cause of death (section 25(1)), and may comment on related public health, safety or justice-system matters (section 25(2)).

Critically, a coroner must not frame a finding in a way that determines a question of civil liability, or that suggests any person is guilty of an offence (section 25(5)). An inquest can produce facts that later support a civil claim, but it cannot award compensation itself.

Frequently Asked Questions

Who can bring a wrongful death claim in Western Australia?

A defined list of relatives set out in Schedule 2 of the Fatal Accidents Act 1959, including a spouse or long-term de facto partner, parents, grandparents, children, grandchildren, step-relations, siblings, and a former spouse the deceased was legally obliged to support. The claim is brought by the deceased's executor or administrator for their benefit.

Is there a solatium or grief payment in Western Australia?

No. The term does not appear in the Fatal Accidents Act 1959, the Law Reform (Miscellaneous Provisions) Act 1941, or the Civil Liability Act 2002. Compensation in WA covers financial loss, medical expenses and funeral costs, not a separate payment for grief.

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

Generally three years from the date of death, under section 14(2) of the Limitation Act 2005. This is a strict deadline, so it is worth speaking with a lawyer as early as possible after a death.

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

Yes. If the deceased contributed to the accident that killed them, the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 allows the court to reduce both the family's claim and the estate's claim by that share of fault.

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

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

What is the difference between the family's claim and the estate's claim?

The Fatal Accidents Act claim compensates relatives for their own loss of dependency. A separate claim under the Law Reform (Miscellaneous Provisions) Act 1941 lets the deceased's own pre-death causes of action, and funeral expenses, be recovered through their estate. Both can proceed together.