At common law, a person cannot receive damages in tort for the death of another. In 1846 an English statute, generally known as ‘Lord Campbell’s Act’, was enacted to remedy this situation. Western Australia adopted Lord Campbell’s Act by Ordinance in 1849 and this formed the basis of the Fatal Accidents Act 1959 (WA). The class of people entitled to claim damages for a wrongful death under the Act was restricted to the deceased’s surviving spouse, children, step-children, grandchildren, parents, step-parents and grandparents. Additionally, claims were limited to economic and material loss and did not include non-economic loss such as grief, loss of companionship and mental suffering.
Terms of Reference
In July 1976 the Commission was asked to consider whether the Fatal Accidents Act 1959 (WA) should be amended to:
- widen the class of persons (including any posthumous child) entitled to claim; and
- provide for an amount to be awarded in the nature of solatium.
Outcomes
The Fatal Accidents Amendment Act 1985 (WA) implemented the Commission’s recommendations to expand the existing class of claimants under the Act. However, Parliament decided against implementation of the Commission’s recommendation for an award of damages for ‘loss of assistance and guidance’.
