Wrongful Death Claims: A Practical Guide A Positive Emanating From the Pandemic

This textbook, written by Craig Hobbs, a former barrister at the Tasmanian Bar, was published by LexisNexis (late December 2020). The book was written during lockdown due to the pandemic between mid-March and mid-July 2020.

The book provides a comprehensive analysis regarding issues that will arise in particular cases focusing on the wrongful death legislation and ancillary civil liability, workers compensation and motor accidents compensation legislation and relevant case law applicable throughout the Australian jurisdictions.

Drawing on specialist experience in this area acquired over a period exceeding 30 years it will be an essential aid to legal practitioners at all levels of experience who are called upon to deal with fatality claims.

The judiciary will also find this resource of invaluable assistance when adjudicating upon fatality claims.
The work is intended as a practical guide, whilst at the same time dealing comprehensively with the theory and application of the theory in a practical setting.

Where appropriate, the book ventures upon a detailed analysis of areas of the relevant legislation and case law to give an insight into issues that may arise in particular cases, hopefully a resolution of those issues, or at least argument directed towards resolving those issues and, where considered appropriate, suggestions for legislative or judicial reform.

The remedy made available to dependants of deceased persons to maintain wrongful death proceedings commenced with the enactment in the United Kingdom of the Fatal Accidents Act 1846 (UK), since amended and now entitled the Fatal Accidents Act 1976 (UK). Ireland, Northern Ireland, Scotland and jurisdictions throughout the British Commonwealth, including the Australian states and territories, have followed suit with legislation following substantially the UK model. As the Author’s Note indicates other jurisdictions include, for example, several countries in the African continent, in Asia and South East Asia, in the Caribbean, New Zealand, the Canadian provinces and territories (with the exception of Quebec) and many of the states comprising the USA.

Although this work focuses on the Australian jurisdictions, as will be noted from a consideration of the text, the development of the law in Australia has been significantly influenced by judicial decisions, not only in Australia, but in other jurisdictions outside Australia, most notably the United Kingdom, and elsewhere. Accordingly, the work will also be a valuable resource to legal practitioners and the judiciary in other jurisdictions which have comparable wrongful death legislation.

The Table of Contents include the following chapters where each subject is comprehensively analysed under various subordinate parts:

• Chapter 1 Introduction
• Chapter 2 Basic principles relevant to establishing liability
• Chapter 3 Investigating quantum
• Chapter 4 Components of claim
• Chapter 5 Benefits and gains
• Chapter 6 Assessment of claims
• Chapter 7 Death benefits payable pursuant to Workers Compensation legislation
• Chapter 8 Preparation of Particulars of Claim
• Chapter 9 Costs
• Chapter 10 Common law claim – grief – recognised psychiatric illness
• Appendices – Annotated precedents

The book has received both national and international accreditation from the following leading legal identities (all commentaries are included in the preliminary pages of the book – passages from those commentaries are included below):

Foreword by The Honourable Robert French AC, former Chief Justice, High Court of Australia (2008 – 2017):
… Mr Hobbs presents his book on wrongful death claims as a practical guide to lawyers in the field. It is first and foremost that and a good deal more. …

For the practitioner entering into or new to the field as well as more experienced practitioners, this book provides what it promises, a practical guide going into, and beyond, the nuts and bolts of wrongful death litigation with a discussion of the authorities, commentary and discussion of areas for reform. It is likely to prove a very useful book and I commend it to practitioners, young and old, in this important field where human loss and grief intersect with the limited justice that the law provides.

Preface by Dr Paul Vout SC, Co-editor, Commonwealth Law Reports:
As an editor and co-author of several volumes of the Australian legal encyclopaedia The Laws of Australia, including on the topic of Torts, I sometimes find frustrating the need to traverse a wide terrain of legal principle, legislation and case law. The temptation to delve deeply into an area of law of particular importance or interest must be checked by the nature and purpose of the publication and by practical and commercial constraints. Craig Hobbs has suffered no such frustration in Wrongful Death Claims: A Practical Guide. This book provides … a very pragmatic guide to investigating, preparing and presenting claims for wrongful death pursuant to key legislation. … [The] book is as thorough as one could hope for. …

In short, Wrongful Death Claims: A Practical Guide by Craig Hobbs is simultaneously comprehensive and practical – a rare balance to achieve. It … is an invaluable tool for judges and practitioners, as well as an important reference for researchers, students and law reformers.

Review commentary by Professor Joachim Dietrich, Bond University, Editor, Torts Law Journal:
Claims for loss arising from the wrongful death of a close relative have been a significant source of litigation in the common law world since the passing of Lord Campbell’s Act in 1846. Although it is a topic of major practical importance, it has not been the subject of much major commentary. This work by Craig Hobbs, a barrister with a wealth of experience in the field, addresses that gap. …

This book is an invaluable commentary that provides detailed analysis that will be of significant assistance to any practitioner working in the field and also to any academic with an interest in the law of tort damages. It is an impressive work and no lawyer working in the personal injury field should be without it.

Review commentary by James Goudkamp, Professor of the Law of Obligations, University of Oxford and Fellow of Keble College, Oxford:
Claims in respect of fatal accidents raise special issues. The relevant legislative arrangements are a prominent exception to the normal rule in tort law that only the victim of a wrong can sue. Fatal accidents claims also present unique and highly complex problems as a matter of practice as this book amply demonstrates. The work is predominantly focused on the position in Australia where the overlapping statutory regimes are sometimes controversial and stand out for special mention on account of their intricacy. However, the volume will also be of interest to judges and practitioners elsewhere. That is in part because the relevant legislation in most of the common law world is descended from that pioneered by Lord Campbell in England in 1846.

Review commentary by Michael Kent QC, London Bar:
So closely modelled on the Fatal Accidents Act 1846 (UK) are the equivalent provisions in many other common law jurisdictions examined in this book that practitioners in the UK will gain valuable insights and assistance from it—from the commentary and citation of authority as well as the useful precedents and practical guidance. …

[T]he value of this work to the UK lawyer is that, even where there are differences in the statutory schemes, such as the disregard of benefits accruing to a dependent as a result of the death pursuant to s 4 of the Fatal Accidents Act 1976 (UK) (a blanket prohibition in England and Wales) the Australian cases still shed light on the correct approach to the prior question: what has the dependant lost?

Q and A with the author Craig Hobbs
Q: What were the circumstances which led to the writing of this book?
A: In March 2020 Tasmania was placed in lockdown due to the pandemic. Normally, in semi-retirement from 2017 and full retirement from mid-2019, I was spending a significant time away from my principal residence in Hobart and travelling interstate and overseas. I was away from Hobart for around 6 months in consolidated terms per annum. The pandemic brought this to an end. I therefore had time available to focus on writing the book between mid-March to mid-July 2020, whilst Tasmania was in lockdown.

From a legal perspective the primary motivation and catalyst was that I had acted as counsel in proceedings in Tasmania for three infants following the death of their mother due to medical negligence. The proceedings settled in late 2015. Had the case not settled, it was intended to seek to persuade the Supreme Court, as a preliminary point to be determined by the Full Court, not to follow the New South Wales Court of Appeal decision in Grosso v Deaton. Several years later in mid-2019, after fully retiring, I again revisited the arguments I had intended to raise challenging this decision. I prepared an article outlining those arguments which was published in the Torts Law Journal in late 2019. I was intent on making those arguments available to the wider profession in the hope that another counsel would take up the challenge. However, I was concerned the readership of the Torts Law Journal would not be sufficiently wide so as to ensure this occurred. I therefore decided to write the book as a means of ensuring that ultimately the argument would be pursued. I think that will now be the inevitable result. I anticipate the issue raised by Grosso v Deaton will ultimately need to be resolved by the High Court. I am hopeful this occurs in my lifetime. The book comprehensively deals with this in Chapter 5 at 5.44 – 5.62.

Q: The book is clearly not limited to the contention raised with regard to Grosso v Deaton?
A: Correct, the book necessarily addresses far more than this particular issue. Interestingly, although the Fatal Accidents Act 1846 (UK), the model legislation, followed by most of the common law jurisdictions throughout the world, was enacted almost 175 years ago, yet there had been remarkably little in the way of commentary, particularly so, given the contentious issues that have arisen from time to time and which largely remain unresolved. As Professor Joachim Dietrich observes in his review commentary, my book addresses this gap. Having specialised in fatality litigation for over 30 years and in personal injuries litigation generally for the entirety of my career extending over 43 years, I felt that I had something useful to make available to the wider profession. The assessment of damages in fatality claims is in all cases a very complex exercise. I perceived that there was a very real need for a commentary dealing with the practical aspects and application of the theory in a practical setting. Given the commentaries on the book I think I have succeeded in that task.

Q: There are 8 very helpful precedents in the appendices of your book – do you have a drafting tip for practitioners
A: Always use your precedents as a baseline or guide only. They must always be carefully tailored to the facts of the particular case. For example, the provision of an accurate and informative statement of claim and particulars of claim to your opponent are in my view the most important steps in the adversarial process in wrongful death proceedings. These documents will set the stage for a positive outcome in settlement negotiation and at trial. Additionally, properly prepared, the documents are an obvious strategic ploy in demonstrating that you in command of your brief. Counsel should always prepare or at least settle both documents.

Q: From this point on?
A: Probably a second edition at some stage to accommodate developments in the law. I have also thought about perhaps writing a similar work addressing the practicalities of personal injuries litigation. However, personal injuries litigation is generally far less complex, settled and without the contentious issues that plague fatality litigation, where I saw a very real need for a textbook providing a comprehensive commentary that would be invaluable to all practitioners, regardless of experience, including the judiciary. As personal injuries litigation is less complex and generally not as contentious, senior and experienced practitioners in the field may possibly gain little from my own knowledge and experience. However, there are still many traps and pitfalls, and junior practitioners new to the field and those practitioners with only limited experience, would undoubtedly benefit from the practical guidance a comprehensive book would provide.

Craig Hobbs
Former Barrister

Craig Hobbs LLB (University of Tasmania) (1976) formerly a Barrister practising at the Tasmanian Bar, now retired (2019). He was admitted to the Supreme Court of Tasmania in 1978 and the High Court of Australia in 1982. Although retired, he retains an associate membership with the Law Society of Tasmania and the Tasmanian Bar and maintains a keen interest in the development of the law in the area the subject of this book.

1. [2012] NSWCA 101.
2. Infants and Wrongful Death Claims – A Critique of the Decision in Gross v Deaton [2012] NSWCA 101 and the Need for Judicial Reform (2019) 25 TLJ 283.