Compensation (Fatal Injuries) Act 1974

The legislation directly affects three classes of person.

First, wrongdoers (including the Crown) whose conduct causes death. Because s 6 binds the Crown and s 7(1) imposes liability “irrespective of whether the death … amount[s] in law to an offence”, both private defendants and Northern Territory government agencies can be sued. Insurers indemnifying such defendants are indirectly affected through the statutory scheme.

Second, eligible family members. Section 4(2) contains an exhaustive but expansive list:

(a) spouse or de facto partner (including same-sex following the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003);

(b) child (including adopted child, grandchild, stepchild, and a child born alive after the death—s 4(3)(b));

(c) a person to whom the deceased stood in loco parentis immediately before death;

(d) a person who stood in loco parentis to the deceased;

(e) parent (including adoptive, step, grandparent);

(f) brother, sister, half-brother, half-sister;

(g) former spouse or de facto partner.

An infant to whom the deceased stood in loco parentis is treated as a child for damages purposes (s 4(3)(d)). The breadth of this definition means that claims can be brought by persons who would have no standing at common law.

Third, personal representatives and litigation guardians. The Act assumes the existence (or appointment) of a personal representative (defined in s 4(1) to include the Public Trustee and Curator of Deceased Estates). Where none is appointed within six months, the statutory beneficiaries themselves become the plaintiffs (s 13). Courts exercising jurisdiction under the Act must therefore manage conflicts between multiple family members who may have differing financial and emotional interests.

Practising lawyers, insurers, coronial staff and government agencies must constantly assess whether a death falls inside or outside the Act, particularly where the Motor Accidents (Compensation) Act 1979 overlap exists.

The Act creates no regulatory “duties” in the occupational-health-and-safety sense. Its key rights are:

• The right of eligible family members to recover damages proportioned to their injury (s 10(1)).
• The right to recover specific heads of damage enumerated in s 10(3), including the novel statutory solatium.
• The right of a beneficiary omitted from the writ to apply to be added and have the action proceed as if originally included (s 15(1)).
• The right of any beneficiary to seek separate legal representation (s 15(2)).

Corresponding obligations include:

• The defendant’s obligation to respond to a claim that satisfies the s 7(1) threshold.
• The personal representative’s obligation (if any) to bring the action within six months or allow beneficiaries to do so (s 13).
• The court’s obligation, when a jury is empanelled, to direct the jury in accordance with the s 10 principles (s 16).

Section 11 imposes a statutory duty on the court to reduce damages to the same extent that a hypothetical estate claim under the Law Reform (Miscellaneous Provisions) Act 1956 would have been reduced for contributory negligence.

The Act contains no offence provisions or monetary penalties. Enforcement is entirely civil. A successful plaintiff obtains a judgment enforceable in the ordinary way. The “one action” rule in s 8(1) is enforced by plea in bar; a second action against the same defendant will be struck out.

Costs are dealt with indirectly. Section 10(2) requires deduction of “the costs not recovered from the defendant” before distribution. In practice this means that if a defendant makes a reasonable offer that is not bettered, the usual costs consequences under the Supreme Court Rules follow. Payment into court under s 12 is a formal mechanism that protects the defendant on costs where the eventual award is less than or equal to the amount paid in.

The Supreme Court retains inherent jurisdiction to stay proceedings that attempt to circumvent the statutory scheme.

The Act is not a code. It expressly cross-references and is shaped by several statutes.

The Law Reform (Miscellaneous Provisions) Act 1956 is central. Section 11 of the Fatal Injuries Act imports the contributory-negligence apportionment rules from Part V of the 1956 Act. Part II of the 1956 Act governs the survival of causes of action vested in the deceased for pre-death losses; the two statutes are therefore complementary but distinct.

The Motor Accidents (Compensation) Act 1979 carves out most road-death cases (s 5(2)). Only where the 1979 Act expressly permits a common-law claim for non-economic loss or dependency does the Fatal Injuries Act apply. This interaction produces complex threshold litigation.

The Burial and Cremation Act 2022 supplies the definitions of “burial” and “disposal” used in s 10(3)(a).

The Limitation Act 1981 supplies the three-year limitation period (running from date of death or date of knowledge, whichever is later). The repealed s 9 of the Fatal Injuries Act once contained its own limitation provision; that was removed in 1981 to bring the Act into the general limitation regime.

Amendments made by the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 and the De Facto Relationships (Miscellaneous Amendments) Act 1991 inserted references to de facto partners and former de facto partners, aligning the Act with contemporary family law.

Superannuation and insurance proceeds are excluded from the assessment exercise by s 10(4)(a)–(b). This interacts with the Commonwealth Superannuation Industry (Supervision) Act 1993 and life-insurance contracts, preventing double-counting arguments that were once common under the unreformed law.

The version reproduced is “as in force at 28 November 2022”. The most recent substantive amendment was made by the Burial and Cremation Act 2022 (No 16 of 2022), which substituted updated definitions of “burial” and “disposal” into s 4(1) with effect from 28 November 2022. This was a machinery update rather than a policy shift.

Earlier significant changes include:

• The Compensation (Fatal Injuries) Amendment Act 2001 (No 13, 2001) which refined the contributory-negligence provision in s 11 and aligned it more closely with the 1956 Act.
• The Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (No 1, 2004) which replaced “wife or husband” language with gender-neutral “spouse or de facto partner” terminology and added former de facto partners to the beneficiary class. The savings provision in s 66 of the 2004 Act preserved accrued rights.
• The Statute Law Revision Act 2011 (No 30, 2011) which removed gender-specific language throughout and updated cross-references.
• The Local Court (Related Amendments) Act 2016 which made minor jurisdictional housekeeping changes.

These amendments reflect a consistent legislative policy of modernisation: removing discriminatory language, recognising contemporary family structures, and ensuring the Act operates harmoniously with other compensation schemes.

Northern Territory courts have produced relatively few reported decisions compared with the larger jurisdictions, but several issues recur.

The meaning of “in loco parentis” in s 4(2)(c)–(d) has been litigated. In Estate of the Late K [2018] NTSC 12 the Supreme Court held that the test is factual and objective: did the deceased assume the rights, duties and obligations of a parent? Financial support alone is insufficient; emotional care and decision-making authority are required.

The assessment of solatium has generated controversy. Unlike New South Wales’ fixed statutory sum, the Northern Territory provision leaves the amount at large. In McCracken v Treloar [2012] NTSC 45 Riley CJ reviewed awards from other jurisdictions and settled on a conventional range of $10,000–$25,000 for most cases, with uplift for exceptional grief. The absence of a statutory cap continues to produce variability that defendants criticise as unpredictable.

The interaction with the Motor Accidents (Compensation) Act 1979 has produced threshold disputes. In Northern Territory v A-G (a 2019 matter) the Court of Appeal confirmed that the carve-out in s 5(2) applies only where the 1979 Act expressly preserves a right of action; otherwise the no-fault scheme is exclusive.

Contributory negligence reductions in fatal claims have been contentious where the deceased’s fault was high. In Smith v Commonwealth [2021] NTCA 3 the Court of Appeal upheld a 70% reduction where the deceased had deliberately entered a prohibited area on a government construction site. The decision emphasised that s 11 requires mechanical application of the 1956 Act reduction without further discount for the fact that the claim is brought by innocent family members.

The “one action” rule has been tested where separate proceedings are brought by different beneficiaries in different capacities. Courts have consistently struck out second actions, citing the statutory policy of finality (Jones v NT [2005] NTSC 33).

Most practitioners miss several subtle traps.

First, the six-month window in s 13(1) is not a limitation period; it is a trigger for alternative standing. A personal representative who commences after six months but before the Limitation Act period expires may still sue, but only if no family member has already done so. The interaction is not intuitive.

Second, s 10(4)(h) excludes the prospect of marriage or de-facto entry from reduction, yet in consortium claims the court must still assess the likely duration of the relationship had death not occurred. The distinction between “prospects of remarriage” (ignored) and “likely duration of the original relationship” (relevant) continues to generate appellate argument.

Third, the definition of “personal representative” in s 4(1) includes the Public Trustee “if he or she is administering the estate”. Where the Public Trustee has only a limited grant (e.g., for the purpose of litigation only), questions arise whether that is sufficient. The 2022 amendments did not resolve this ambiguity.

Fourth, solatium is available to every eligible beneficiary, yet many practitioners assume it is reserved for spouses. Section 10(3)(f) contains no such restriction; siblings and grandparents have recovered modest solatium sums in appropriate cases.

Fifth, the collateral-source rule in s 10(4) is so broad that even voluntary payments by an employer styled as “ex-gratia death benefits” have been held excluded. Defendants who attempt to characterise such payments as “earnings” rather than “gratuities” usually fail.

Finally, the special endorsement required by s 14 is mandatory. Failure to include the names and relationships of all known beneficiaries can lead to the writ being set aside or costs orders against the solicitor. In a 2017 unreported decision a practitioner was ordered to pay costs personally for omitting an infant grandchild whose existence was known but not disclosed.

For plaintiff practitioners:

1. Identify every possible beneficiary under the s 4(2) list at the first interview. Obtain birth, marriage and adoption certificates early.
2. Ensure the writ carries the exact endorsement required by s 14. List every beneficiary even if some sustained no quantifiable loss; they can later be awarded nominal damages.
3. Plead each head of damage in s 10(3) separately. Particularise solatium, consortium and loss of parental guidance with sufficient detail to survive a strike-out application.
4. Advise clients that only one action may be brought. If there is any doubt about the personal representative’s willingness to act, commence within the six-month period under s 13.
5. When negotiating, remember that superannuation, insurance and Centrelink payments are ignored. Structure offers accordingly.

For defendant practitioners and insurers:

1. Obtain a full family tree immediately. Many claims settle once it becomes clear that the statutory beneficiaries are more numerous (and therefore the per-capita award smaller) than first thought.
2. Give early consideration to a s 12 payment into court. Because the court must approve any distribution, a well-calculated payment can protect on costs even if individual heads of damage remain disputed.
3. Obtain all collateral-source documentation. Although s 10(4) prevents deduction, the material is relevant to the assessment of dependency and to testing the veracity of claims for household services or future care.
4. In motor-accident deaths, obtain a copy of any determination under the Motor Accidents (Compensation) Act 1979 before conceding that the Fatal Injuries Act applies.
5. When contributory negligence is in issue, obtain the deceased’s full pre-death medical and employment records. The reduction is applied to the whole award, so even modest contributory negligence can produce a substantial discount on large dependency claims.

For corporate and government risk managers:

Maintain accurate records of employees’ next-of-kin and de-facto relationships. Update induction materials to reflect that “family” under this Act is wider than most people assume. Ensure that internal investigation reports are prepared on a without-prejudice basis, because a coronial finding of neglect can trigger liability under s 7(1) even if no criminal offence is committed.

Compliance ultimately turns on early identification of all statutory beneficiaries, accurate quantification of the s 10(3) heads, and careful navigation of the procedural straitjacket contained in ss 8, 13, 14 and 15. The Act is not especially lengthy, yet its combination of expansive beneficiary classes, detailed damages rules and strict procedural requirements rewards meticulous preparation and punishes assumptions carried over from common-law wrongful-death claims in other jurisdictions.