I. INTRODUCTION

A. The Need for Death Benefits

12.1 We continue to support the view, expressed in the Working Paper, ¹ that there are strong reasons for providing compensation to the family and dependents of people killed in transport accidents. All existing compensation systems provide some compensation for loss caused by death. However the form and amount of such compensation and eligibility criteria vary from system to system. The reasons for providing compensation on death include:

• the financial need, particularly in the short term, created by the loss of material support provided by the deceased;
• the dislocation to the family unit caused by the death, often requiring financial outlay to readjust to a changed social and economic situation; and
• the need to provide for the immediate costs of death such as funeral and related expenses.

B. Other Compensation Systems

1. Common Law

12.2 Most compensation benefits available to the surviving family members of a deceased transport accident victim are the result of statutory intervention. At common law, no damages are payable purely as compensation for the death of another. ² This problem was initially solved by Lord Campbell’s Act 1846 (Eng), the model for later acts including the Compensation to Relatives Act, 1897. ³ This Act permits close relatives of the deceased person to claim damages for loss resulting from the death, ⁴ but it makes no detailed provision except with regard to set-offs, ⁵ concerning assessment. This has left the courts the task of developing rules which govern the assessment of damages. They have done this by providing, as in other cases, a once-and-for-all lump sum. Periodic compensation is not available.

12.3 To illustrate the approach of the common law courts to such assessment and the principles which are applied, we briefly outline what is probably the most typical claim under the legislation-one involving the death of the family breadwinner. In such a case, damages are calculated on the basis of the portion of the deceased s earning capacity which would have been devoted to the material support of the family. This involves the courts in the uncertainties of prediction associated with a calculation of lost earning capacity. In addition, it involves predictions not relevant to an injured party’s claim, for example a widow’s prospect of remarriage ⁶ and the stability of a marriage at the time of the death of one spouse. ⁷ Where the homemaker has been killed, damages are based on the value of household services rendered by the deceased. ⁸ The Act expressly provides for recovery of reasonable funeral or cremation expenses and the cost of erecting a tombstone. ⁹

12.4 There is separate statutory provision for some survivors to bring an action for the nervous shock which they suffered as a result of the death of a close relative. ¹⁰ In such cases statute has largely replaced the common law, although there may still be isolated cases and situations where the statute is silent but the common law provides a remedy. ¹¹

2. Workers’ Compensation

12.5 Section 8 of the Workers’ Compensation Act, 1926, provides for benefits where death results from a work injury. Current benefits (August 1984), which include a lump sum of $54,750 and weekly payment of $27.40 for each child up to 16 years of age, are payable only to those who were wholly dependent on the worker for support. The benefits are indexed. Where a spouse survives the benefits are payable to the spouse unless otherwise ordered by the Workers’ Compensation Commission. ¹² Where the worker leaves no person wholly dependent on him or her for support, payment of whole or part of the lump sum may be determined by the Commission for the benefit of partially dependent survivors. ¹³ Up to $15,350 is payable to members of the family of a minor who, while leaving no dependents, contributed a major proportion of his or her income to the maintenance of the family home. ¹⁴ In addition where there were no dependents, reasonable burial and cremation expenses up to a maximum of $300 are payable. ¹⁵

3. No-Fault Schemes

12.6 Under the New Zealand scheme, earnings-related compensation is payable to spouses, children and other dependents of a deceased accident victim up to the maximum amount allowable for total loss of earning capacity of the deceased, had the deceased remained alive.¹⁶ If the surviving spouse remarries, earnings-related compensation ceases subject to payment of a lump sum equivalent to two years’ entitlement.¹⁷ There is also provision for payment of reasonable funeral expenses and a lump sum of up to NZ $4,000 to a surviving spouse and NZ $2,000 to each surviving child (up to a maximum of NZ $6,000)¹⁸. Under the no-fault component of the Victorian scheme, a lump sum is payable to a dependent spouse and children,¹⁹ as well as burial and cremation costs. An amount for household help and child care up to a maximum of $2,000 may be paid where the deceased had previously provided such services. Death benefits under the Tasmanian no-fault provisions also include a lump sum to dependents, and funeral benefits, ²¹ as well as a dependant’s weekly allowance for a period of up to 104 weeks from the date of death. ²² Lump sums to surviving spouses are provided for under the Northern Territory scheme, ²³ together with periodic payments to surviving dependent children ²⁴ and parents, ²⁵ and funeral benefits. ²⁶

12.7 These statutory provisions have a number of common features.

• All provide for a lump sum payment of varying amounts to eligible claimants.
• Eligibility is based on either
  
  (a) a family relationship with the deceased, and/or

  (b) dependence on the deceased for support

• All meet the immediate costs of death such as funeral and related expenses.

Not all statutory provisions, however, allow for periodic payments to survivors. In some cases where these are available, they are limited to a fixed period after the death or to a fixed amount.

12.8 The availability of death benefits in all existing compensation schemes reinforces the view that they should be provided in the proposed Scheme. ²⁷ Therefore, we recommend that compensation in respect of death should be provided to the spouse, children and other dependent f amily members of people killed in transport accidents, provided that the death is caused by or arises out of a transport accident.

C. Form of Compensation-Working Paper Proposals Reconsidered

12.9 The Working Paper argued that compensation should be provided by way of a lump sum to all adults who qualified for benefits, with periodic payments being made available only to dependent children. ²⁸ We have reconsidered this position, although the reasons given for favouring a lump sum payment to survivors remain valid. In particular, compensation should be directed towards the immediate needs of survivors, to be used as a financial buffer and so allow them to readjust their lives. A fixed lump sum payment gives to survivors a high degree of short-term flexibility and because of this it is still central to the recommendations.

12.10 No compensation scheme should allow limited resources to support able-bodied survivors for substantial periods of time. The Scheme should accept that it is desirable for a survivor, after a period of adjustment, to make efforts to become self-supporting. Dependence on another person is an option which is open during that person’s lifetime, but should not be available indefinitely through the compensation system after the person’s death. In this respect the position of an incapacitated person and a surviving dependent of a person who has been killed are quite different. The former requires support during the period of incapacity and cannot earn income because of the incapacity. The latter, unless there is a continuing impediment to employment, can be expected to attempt to support himself or herself. A different approach to compensation is thus required in such a case.

12.11 The Working Paper proposals were criticised in submissions for restricting benefits to a single lump sum (apart from periodic compensation for children of the deceased), thus failing to take account of the individual circumstances of different families. There is great force in this criticism, particularly in the case of a surviving spouse with child-care responsibilities. There are strong reasons why such a person should be place in a special category in determining entitlement to compensation on the death of his or her partner. To do so recognises the likelihood that the spouse’s earning capacity will be affected, at least for a period, by the child-care responsibilities. It also recognises the likelihood that, where the deceased was an earner, the surviving spouse will experience difficulties in adjusting readily to the loss of financial support and in achieving financial and social independence. In particular, a surviving spouse as a sole parent with child-care responsibilities may face serious difficulties (if out of work at the time of death) in re-entering the workforce, or in increasing workforce participation to cover the costs of child care.

12.12 Submissions also pointed out that compensation arrangements should distinguish between those with special needs, who cannot reasonably be expected to support themselves, and those who face no barrier to supporting themselves. It was suggested, for example, that a distinction should be drawn between an elderly widow in poor health and a young widow in good health with no child-care responsibilities. ²⁹ The case for the younger widow being expected to support herself after a relatively short period of adjustment is strong, while the other person clearly may not have that option open.

12.13 Special needs which exist at the date of death may be alleviated (or exacerbates by subsequent events unconnected with receipt of compensation. For example, a survivor unable to exercise his or her earning capacity because of ill-health may recover sooner than expected, or remarriage may replace the loss of support caused by the death. Factors of this kind cannot accurately be predicted in proceedings for a once-and-for-all lump sum award, for reasons similar to those which apply to the assessment of damages for personal injury.

12.14 The approach we suggest is that periodic compensation in addition to the lump sum already referred to, should be available to two categories of surviving spouse who have been deprived of financial support.

• First, a surviving spouse with child-care responsibilities should be entitled to periodic compensation on the death of an earner. For a limited period (normally five years) the compensation should be related to the earnings of the deceased and should be paid regardless of the survivors earnings or earning capacity. After that time periodic compensation should continue only if the spouse with child-care responsibilities has special needs and cannot support himself or herself above a specified level. Periodic compensation to a spouse with child-care responsibilities should not continue beyond the time the youngest child reaches 16. Such compensation should also end on remarriage.
• Secondly, a spouse without child-care responsibilities, but who is prevented by circumstances from becoming self-supporting, should be entitled to compensation for a limited period (again normally five years). The compensation should not exceed that which is required to bring the spouse’s earnings to a specified minimum level. During the period of compensation some survivors will be able to adjust to the new situation, for example by retraining or by altering their domestic circumstances. Some will not adjust. However, a point is reached where responsibility for continuing support should fall to the social security system.

12.15 The social and economic factors suggested as relevant in determining whether a person cannot fairly be expected to be self-supporting do not include general economic conditions which might make returning to the workforce more difficult. As stated in chapter 7 in considering the relevance of general economic conditions to the disabled transport accident victim (paragraph 7.59), unemployment is a community problem and one which should be the responsibility of the social welfare system. Only where a survivor has particular social disabilities can the payment of periodic compensation be justified.

12.16 The needs of the surviving spouse may exist whether the deceased spouse provided financial support or other material support such as household services. However, where household services were provided by the deceased we propose, subject to appropriate criteria, substitute support services to the family dependent on the deceased rather than monetary payments (paragraphs 12.54-12.57).

D. Eligible Claimants

12.17 In order to be eligible for death benefits a person should be able to show a close relationship with the deceased and to demonstrate that the death had a disruptive effect on that person’s life. In general terms, this is most likely when two circumstances combine:

• material dependence; and
• family membership.

We therefore propose that eligibility should depend on the existence in fact of both elements.

1. Material Dependence

12.18 Eligibility for benefits on death should require some degree of dependence on the deceased for material support, whether in the form of contribution from earnings where the deceased was an earner, ³⁰ or household services where the deceased was a non-earner. A person is entitled to be treated as a dependent even if he or she was only partly dependent on or interdependent with, the deceased. This may occur where others contributed with the deceased towards the dependant’s support or the dependent contributed together with the deceased to his or her own support. It is intended in this way to cover the wide range of domestic situations which exist in the community. A deceased may have:

• contributed as an earner to the household along with other family members, for example a spouse who was also an earner;
• supported two families, because of separation or divorce;
• lived in a blended family supporting children of his or her partner or some other person; or
• provided financial support to relatives who may or may not have lived within the household.

Generally dependence should have to be proved by the person seeking to claim benefits, except in the case of children (paragraph 12.26). Accordingly, we recommend that a dependent should be defined as a person who, at the date of the accident resulting in the deceased’s death, was dependent upon, or interdependent with, the deceased.

12.19 Although partial dependence or interdependence is sufficient to establish eligibility, it must be material. There must have been support of a significant and continuing kind provided by the deceased to the dependent. It would not be sufficient if a parent, living apart from a child after separation or dissolution of marriage, merely saw the child occasionally or provided gifts from time to time. There must be financial support or continuing material support in some other form.

2. Family Membership

12.20 It is consistent with existing compensation schemes ³¹ and with the recommendation of the Australian Woodhouse Committee ³² that only members of the deceased’s family should be entitled to benefits available on death. ³³ Such benefits should be concentrated in particular on the surviving spouse and/or children, although some consideration should be given to other close family members, such as parents, who were dependent oil the deceased in the required sense. The three classes of eligible dependents should be:

• spouse;
• child;
• and other family member.

Each class requires more precise definition.

Spouse

12.21 The term spouse most obviously refers to a party to a legal marriage. However, the de facto relationship has become widely recognised as a basis for benefits in existing compensation schemes. ³⁴ We therefore propose that “spouse” should include de facto partner and that a “de facto” partner should be defined in terms equivalent to those adopted in the De Facto Relationships Bill 1984. ³⁵ For the reasons given in our Report on De Facto Relationships, ³⁶ on which the Bill is based, it is not necessary to require that the de facto relationship should have existed for a minimum period of time prior to the death, as long as the parties were living together as husband and wife on a bona fide domestic basis. Therefore, for purposes of entitlement to death benefits, we recommend that “spouse” should include a de facto partner of the deceased who was living with the deceased at the date of death. A de facto relationship is one between a man and a woman who, although not legally married to each other, live together as husband and wife on a bona fide domestic basis.

12.22 In most cases, a de facto relationship will have been established between unmarried people. However there will be some cases where the deceased was a partner to a de facto relationship although still legally married to another person at the date of death Under the Compensation to Relatives (De Facto Relationships) Amendment Bill, 1984 (cognate to the De Facto Relationships Bill: see paragraph 12.21), both the legal spouse and de facto partner will be entitled to benefits under the Compensation to Relatives Act, 1897. We propose that the same approach should be taken for the purposes of the Scheme, provided that both survivors can prove dependence or interdependence. It follows that the benefits otherwise payable to the surviving spouse would be shared in proportion appropriate to the respective degree of dependence of each “spouse” on the deceased. For the purposes of this Chapter, any further reference to “spouse” should be understood to include, where applicable, both legal spouse and de facto partner, where those relationships existed simultaneously at the date of death.

12.23 The benefits for which the surviving spouse will be eligible include:

• a lump sum (the proportion depending on whether there are dependent children or other dependent family members);
• where the spouse has child-care responsibilities, periodic compensation for loss of support, regardless of the spouse’s own earnings, for a period of up to five years, followed by further limited compensation for loss of support where there are special needs;
• where the spouse has no child-care responsibilities but:
  
  (a) is in poor health;

  (b) is over the age of 50 and lacks relevant work skills; or

  (c) is caring for an aged or infirm relative;

• limited compensation for loss of support for up to five years; and support services, to the extent previously provided by the deceased, usually for a period of two years.

Child

12.24 Consistent with both the Compensation to Relatives Act ³⁷ and the Workers’ Compensation Act, ³⁸ "child” should be defined to include a child to whom the deceased stood in loco parentis, that is, to whom the deceased was in fact a parent. We recommend that “child” should be defined to include a child in relation to whom the deceased stood in loco parentis.

12.25 The child should be eligible to benefits as a child up to 16 years of age, and from 16 to 21 years of age if the child remains a full-time student or is physically or mentally handicapped. If a child is 16 or over, or, in the case of a full-time student or handicapped child, 21 or over, that child is treated as another “member of the family” for purposes of eligibility to death benefits. The same consequence would apply if the child is married or in a de facto relationship. The choice of 21 as the ultimate cut-off is different from the age limit of 25 applied for certain purposes under the Tertiary Education Assistance Scheme ³⁹ and to family allowances under the Social Security Act 1947 (Cth.). ⁴⁰ However, 21 is the age limit used for corresponding purposes (death benefits) under the Workers’ Compensation Act. ⁴¹ It is also sufficient to permit the child to complete secondary school and to make substantial progress towards, and in many cases complete, tertiary education. We recommend that for the purpose of a child’s eligibility to benefits on the death of a parent, “child” should mean a child who has not attained the age of 16 years or, where the child is a full-time student or physically or mentally handicapped, 21 years, at the date of the death of the parent. The term should not, however, include a child who is married or living in a de facto relationship.

12.26 In the case of children it should not be necessary to prove dependence where the child was a member of the deceased’s household at the date of death. If, however, the child was not living with the deceased at the date of death the general rule requiring proof of dependence should apply. Therefore, we recommend that where the child who is eligible as a child was a member of the deceased’s household at the date of death dependence of that child on the deceased should be conclusively presumed.

12.27 The benefits for which surviving children will be eligible include:

• a share of the lump sum;
• periodic payments at a fixed rate; and
• the benefit of support services, where these were previously supplied by the deceased.

Other Family Member

12.28 Where members of the deceased’s family (other than the spouse and children) were dependent on the deceased at the date of the accident causing death, the Scheme provides:

• a share of the lump sum up to one-third of the maximum amount, where spouse and/or children also survive; or
• a share of the lump sum to be determined by the Corporation, where neither spouse nor children survive.

For this purpose “member of the family” should be defined in terms equivalent to those in the Compensation to Relatives Act ⁴² and Workers’ Compensation Act. ⁴³ Therefore, we, recommend that “member of the family” should mean “spouse, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, grand-daughter, step-son, step-daughter, brother, sister, half-brother, half-sister”. As explained in paragraph 12.20, although spouses and children are separately provided for in most cases, the child who is not within the definition of “child” (for example because he or she is over 16) is in this more general class.

3. Eligibility Summarised

12.29 Eligibility for death benefits depends on a combination of material dependence and family membership in the following manner.

• Spouses, provided that they prove dependency (which may include interdependency) are entitled to benefits on death.
• Children coming within the definition of “child” are entitled to claim death benefits, and in the case of a child living in the household of the deceased, dependency will be presumed.
• Other relatives within the relevant class will be entitled to claim benefits, provided they prove dependency.

We now examine the compensation available to each class of eligible dependent.

II. LUMP SUM PAYMENT

12.30 As already stated (paragraph 12.9), there are good reasons for favouring lump sum compensation as a major form of compensation available to the dependents of a deceased transport accident victim.

12.31 The lump sum is not intended as a replacement of earnings or services provided by the deceased to his or her family, but rather a financial resource to allow family members to adjust to new and difficult circumstances. It is therefore not related to the kind or extent of material support provided by the deceased. A widow without dependent children if employed at the date of her husband’s death, could for example use the lump sum to resettle into another home, or meet the cost of household tasks previously undertaken by her husband or perhaps finance a break from her employment. If she were not in employment and did not come within the special categories of need, the sum would provide financial support while she sought employment and settled into a new life. A surviving spouse with dependent children might use the lump sum to repay the mortgage on the family home, thus removing a substantial financial burden and easing the process of readjustment.

12.32 As the lump sum is not intended to replace actual material support we propose a flat-rate lump sum rather than one based on the earnings or value of household services of the deceased. The lump sum proposed is broadly equivalent to the death payment currently made under the Workers’ Compensation Act 1926 (paragraph 12.5). However, unlike the Workers’ Compensation Act (and contrary to the view expressed in the Working Paper), the maximum lump sum should not be restricted to the case of a deceased earner with a totally dependent family. To do this would be inconsistent with the value which the community places on the shared contributions of both homemaker and breadwinner to the support of the family. Therefore, we recommend (subject to the recommendations which follow concerning apportionment of the lump sum) that the dependent spouse, children and other dependent members of the family of the deceased (whether the deceased was an earner or non-earner) should be eligible to claim a lump sum payment to a maximum of 130 times AWE ($54,600 at June 1984).

A. Surviving Spouse and/or Children

12.33 Traditional social values place great importance on the family, and in particular on the family unit of spouses and children known generally as the immediate or nuclear family. This is confirmed by statistics from the 1981 Census which show that a very high percentage (97 per cent) of households in New South Wales consisted of one family ⁴⁴ and that 65 per cent of families consisted of a married or de facto couple with or without children. ⁴⁵ Furthermore, road statistics show that a disproportionately high number of deaths caused by transport accidents occur in younger age groups. ⁴⁶ These facts combine to make it more likely that young, and therefore dependent, children will be part of the surviving family. These factors justify the concentration of death benefits on surviving spouses and children. We recommend that where the deceased is survived by a dependent spouse and/or children, but no other family dependents, the survivors should be entitled to claim the maximum lump sum. If there is more than one claimant, the Corporation should apportion the lump sum among them, having regard to the degree of dependence.

12.34 Apportionment should be left to the discretion of the Corporation because it is impossible to anticipate every family situation Many cases involving only a surviving spouse and/or children of the deceased will be relatively straightforward. But there will be more complicated cases, such as the case where the deceased was supporting two families, following a divorce and subsequent remarriage. The Corporation should be guided by criteria such as:

• age and independent means of support; and
• physical or mental disability of the surviving spouse and/or children

B. Surviving Spouse and/or Children and Other Dependent Family Members

12.35 The extended family is a common feature of Australian life. More over there are many situations in which a person provides material support to family members who are not part of his or her household. While immediate family should be given priority in the allocation of the lump sum, financial dislocation could affect other dependents who are not part of the immediate family. We propose that up to one-third of the lump sum should be available to dependents who are not part of the immediate family, with provision to enlarge this proportion in exceptional circumstances. One example of exceptional circumstances might be where a husband and wife have the care and support of a retarded child over 21 from the husband’s prior marriage. This person might live apart from the primary household, but be largely dependent on it. He or she could well need a larger share in the lump sum payable if the father dies and the surviving spouse, who would be entitled to a share in the lump sum is self-supporting. We recommend that where the deceased is survived by a dependent spouse and/or children and one or more other members of the deceased’s family who were dependent on the deceased, those other members of the family should be entitled to claim a share of the lump sum. The share should be determined by the Corporation taking into account the degree of dependence, but should not exceed one-third of the lump sum unless the circumstances are exceptional.

C. Surviving Dependent Family Members Other Than Spouse and/or Children

12.36 Where the deceased is survived by dependent family members, but not by a spouse or child, the dependent family members should still be entitled to a lump sum payment. The lump sum should not automatically be paid in full as is proposed in the case of a spouse and/or children, but should reflect, up to the maximum, the degree of actual dependence. Therefore, we recommend that where the deceased is survived by neither a spouse nor children, but one or more dependent family members, those dependents should be entitled to claim the whole or part of the lump sum depending on the degree of dependence. Where there is more than one such dependent, each dependant’s share should be determined by the Corporation, taking into account their relative degrees of dependence.

III. PERIODIC COMPENSATION FOR CHILDREN

12.37 Children should continue to receive support by way of periodic benefits in addition to any entitlement to a lump sum. It would be unreasonable to expect a child to undertake to support himself or herself independently when a parent on whom he or she depends dies, whether that parent was an earner or non-earner. This proposal is designed to provide a substitute source of material support for such children not related to the income of either parent. The level of support suggested is relatively generous compared with other statutory schemes. ⁴⁷ We recommend that a child of the deceased who was dependent on the deceased should be entitled to periodic compensation at the rate of 8 per cent of AWE ($33.60 at June 1984). This recommendation applies whether the deceased was an earner or non-earner. Separate recommendations deal with the upper limits on total compensation payable, for example, when there is a large number of surviving children (paragraphs 12.62-12.65).

12.38 Periodic benefits should cease on the occurrence of events contemplated in the definition of child. ⁴⁸ Since entitlement to benefits is based on dependency, periodic payments should also end once the child is no longer dependent in fact. Accordingly, we recommend that periodic compensation to the child should continue until he or she:

(a) attains the age of 16 years, or in the case of a full-time student, or a mentally or physically handicapped child, 21 years;

(b) marries or enters into a de facto relationship; or

(c) becomes self-supporting.

12.39 These recommendations are made on the assumption that the periodic payments will not be taxable. Under Division 6AA of Part III of the Income Tax Assessment Act 1936 (Cth). unearned income paid to minors is subject to special rates of tax. ⁴⁹ Relief from excess tax under these provisions is available in cases of “serious hardship” ⁵⁰ and, under section 265 of the Income Tax Assessment Act, total or partial relief from payment of tax (not only Division 6AA tax) is provided for, where it can be shown that the exaction of the full amount will entail serious hardship because, inter alia, of any loss suffered by the taxpayer. ⁵¹ While relief under the hardship provisions may be available with regard to the periodic payments proposed, this cannot be certain. In order to ensure that the benefits to children receiving benefits are not penalised, it may be necessary to seek an amendment to the Income Tax Assessment Act to exempt such benefits from payment of income tax. ⁵²

12.40 We see no reason why a child’s earnings from part-time employment should affect entitlement to periodic payments. The payments themselves are at a flat rate and are not related to the child’s degree of dependence on the deceased. We recommend that the entitlement of a child to periodic compensation should not be affected by his or her earnings from part-time employment.

12.41 Furthermore, we do not consider that periodic compensation should be terminated because a child’s surviving parent remarries or enters into a de facto relationship. To cease compensation in such circumstances would discourage desirable readjustment and might inhibit moves by the surviving parent towards establishing new relationships. Therefore, we recommend that periodic compensation to a child should continue, notwithstanding the marriage or entry into a de facto relationship by the surviving parent who has the care and control of the child.

IV. ADDITIONAL COMPENSATION FOR THE SPOUSE OF AN EARNER

12.42 We have explained why periodic compensation should be paid to a surviving spouse in certain circumstances, notably where there are child-care responsibilities or other special needs. In determining the precise circumstances and level of compensation careful consideration should be given to changes in the community, especially with regard to workforce participation. These changes have not been adequately reflected in other forms of compensation for death. ⁵³ For example, statistical material shows:

• a marked increase in the workforce participation rates of married women generally, but particularly of those with dependents; ⁵⁴
• an increasing number of workers, both male and female, have moved into part-time work, with women constituting a higher proportion of the part-time workforce; ⁵⁵ and
• a marked increase in the workforce participation rate of married women aged 45 years or more (at a time when the workforce participation rate of all other groups has fallen). ⁵⁶

These statistics support the conclusion that many surviving dependents, including women, wish to and do exercise their earning capacity. This trend should not be discouraged by lifetime earnings-related compensation to able-bodied people who are capable of assuming financial responsibility for themselves.

12.43 Against this, the following factors must be considered.

• For women, the most important reason for not actively seeking work is family responsibilities, including the ill-health of another persons inability to find adequate child care or other reasons associated with child care. ⁵⁷
• Where a family has young children, the woman is almost twice as likely to be out of the labour force as to be in the labour force. As the children grow older, the woman is more likely to be in the labour force than not. The older the dependent child, the more likely it is that both parents will be in the labour force. ⁵⁸
• The person most likely not to be in the workforce where dependent children are present is the single parent-this would include widows and widowers. ⁵⁹

These statistics support the view that it is unreasonable to expect some classes of survivors, especially those with dependent children in their care, to support themselves very soon after the death of a partner.

A. Spouse of Earner with Child-Care Responsibilities

12.44 The surviving spouse of a deceased earner who has child-care responsibilities should be eligible to receive periodic compensation for a period of five years after the death in respect of loss of support. This should be available whether the survivor is male or female. We recommend that where the deceased was an earner and the surviving spouse:

(a) was a dependent of the deceased; and

(b) has the care and control of a child

that spouse should be entitled to claim compensation by way of periodic payments in his or her own right for the loss of support regardless of his or her earnings.

12.45 For the period during which the surviving spouse has child-care responsibilities, the compensation should broadly reflect the contributions made from the deceased’s earnings to the family, up to a maximum of five years. Compensation should be calculated as a proportion of the deceased’s earnings. Since separate provision is made for periodic compensation to dependent children, we consider that 50 per cent of the deceased’s earnings is an appropriate percentage. The maximum payment should be 75 percent of AWE, (that is 50 percent of the ceiling on compensation for loss of earning capacity of 150 per cent of AWE). In general a five year period of adjustment at the level of compensation suggested is an appropriate length of time to allow families to plan their future. For example, in the extreme case of a surviving widow who was pregnant at the time of her spouse’s death in a transport accident, the child would be approaching school age when the five years expire. The difficulties associated with entering the workforce for a single parent would then be less onerous. The five year period should allow survivors to plan and undertake retraining programs where appropriate, some of which would be provided by the Corporation.

12.46 There is an obvious difficulty with the payment of periodic compensation to a surviving spouse otherwise than on a needs basis. If payments are taxable in the hands of the recipient, there will be a disincentive for the recipient to undertake or continue employment since extra income derived from employment would attract relatively high marginal tax rates. Clearly, there should be no such disincentive. Accordingly we propose that, if possible, the periodic compensation payable to a surviving spouse with child-care responsibilities during the first five years after the death, should not be taxable in the hands of the spouse. This result could be achieved by the enactment of a specific exemption in the Income Tax Assessment Act 1936 (Cth). ⁶⁰ Alternatively, it may be that periodic compensation to the surviving spouse, if based (as we suggest) on the net (after tax) earning capacity of the deceased, would not be regarded as taxable income of the spouse. ⁶¹

12.47 We have assumed that the payments will not be taxable and accordingly the recommendation refers to the “net (after tax) earning capacity” of the deceased as the basis for compensation Should the payment be regarded as taxable income of the surviving spouse, it will be necessary to adopt a different approach for this kind of compensation perhaps resorting to a lump sum. We recommend that periodic benefits to a surviving spouse should be paid by instalments at the rate of 50 per cent of the net (after tax) earning capacity of the deceased up to a maximum of 75 per cent of the after tax equivalent of AWE, for a period of five years from the date of the deceased’s death, or until the youngest child in the claimant’s care and control attains 16, whichever occurs earlier.

B. Surviving Spouse of an Earner with Long-Term Child-Care Responsibilities

12.48 Even after five years, a surviving spouse who has a child under the age of 16 years may find it difficult to re-enter the workforce or to earn more than a small amount In these circumstances it is appropriate to maintain the surviving spouse’s level of income at a percentage of the deceased earner’s income. but to take account of the spouse’s earning capacity. We propose that compensation should be paid to bring the spouse’s income up to 50 per cent of the deceased partner’s income, subject to a limit of 50 per cent of AWE. This compensation should be a supplement only and this should be paid after taking account of the income and unused earning capacity of the surviving spouse. Thus a surviving spouse who has an earning capacity and is capable of exercising it will be expected to do so. We recommend that if, after five years from the death of the deceased, the surviving spouse

(a) has the care and control of a child; and

(b) has a combined income and earning capacity less than 50 per cent of the earnings of the deceased (as indexed) or 50 per cent of AWE, whichever is less,

periodic compensation should be paid to that spouse. The compensation should supplement the combined income and unused earning capacity (if any) of the spouse to bring it to 50 per cent of the earnings of the deceased, subject to a maximum of 50 per cent of the A. W. E. ($2 10 at June 1984).

12.49 It is implicit in this form of compensation that it should be regarded as a means of providing for the needs of a family, where the surviving spouse has some limitation on his or her earning capacity because of the child-care responsibilities. It follows that once the youngest child reaches 16 and has less need for household or material support this impediment to earning capacity is removed. In these circumstances, if the surviving spouse is not capable of supporting himself or herself, it is appropriate that social security take over the responsibility. Where children remain financially dependent because they remain students, the periodic benefits paid on their behalf will continue to be received up to the age of 21 years (see paragraph 12.25). Therefore, we recommend that the additional compensation after the first five years should cease when the youngest child in the care and control of the surviving spouse attains 16 years or where the spouse ceases permanently to have the care and control of a child, whichever is the earlier.

C. Surviving Spouse of an Earner where the Earning Capacity of the Spouse is Impaired for Reasons other than Child-Care Responsibilities

12.50 Child-care responsibilities are only one factor which can impair a surviving spouse’s earning capacity. It may be affected by the spouse’s physical an or mental health, his or her age and lack of work experience and skills or even the care of another adult family member. These factors do not necessarily prevent a surviving spouse from undertaking paid work, but they may limit either the kind of work the surviving spouse can do, the hours available in which paid work can be undertaken or the availability of work. The existence of these factors justifies, in our view, the provision of periodic compensation in addition to the lump sum payment, for a period of up to five years after the death of the deceased. Therefore, we recommend that where a surviving spouse was dependent on the deceased earner and the earning capacity and/or income of the surviving spouse is substantially impaired due to:

(a) poor health (including mental and physical disability), where the condition was evident at the date of death or within six months of the date;

(b) the fact that he or she is over 50 years of age and lacks relevant work skills; or

(c) the need to care for an aged or impaired member of his or her family or of the deceased’s family, where such care was undertaken at the date of the death of the deceased,

periodic compensation should be paid to that spouse.

12.51 Since this form of compensation is based on need during a period of dislocation and adjustment the income and earning capacity of the surviving spouse should be taken into account from the date of the death, whether or not the spouse was earning at the time. During this period the Corporation would be expected to provide opportunities for retraining. If the need for support extends beyond the five year period, it should in our view be met by the social security system. Accordingly, we recommend that the compensation paid should supplement the combined income and earning capacity (if any) of the surviving spouse to bring him or her to 50 per cent of the earnings of the deceased, subject to a maximum of 50 per cent of AWE ($210 at June 1984). We further recommend that this compensation should cease at the expiration of five years from the date of the deceased’s death or the cessation of the impairment of the surviving spouse’s earning capacity, whichever is the earlier. Where the impairment temporarily ceases, compensation should be suspended but should resume if the impairment returns within the five year period.

12.52 In relation to this form of compensation, we have referred to physical or mental disability existing at the time of the death or which develops up to six months later. This is not intended to refer to a physical or mental condition which was the result of the accident causing the death of the spouse. In such a case, independent provision has been made for such a condition under the Scheme. ⁶² The reference is to an impairment of a surviving spouse, not related to the death, which would, in the ordinary course attract social security benefits.

D. Assessment of Earning Capacity

12.53 In determining the earning capacity of a surviving spouse, for the purpose of assessing the level of periodic compensation, account will need to be taken of the “impairment factor” on which the right to benefits is based. For example, the child-care responsibilities of the surviving spouse would need to be considered in assessing earning capacity. Allowance having been made for this factor, earning capacity should be assessed using, as far as possible, the criteria relevant to the assessment of post-accident earning capacity of an injured transport accident victim. Therefore, we recommend that in assessing the earning capacity of a surviving spouse, the Corporation should apply the principles, with any necessary modifications, applied to the assessment of the post-earning capacity of an injured person.

V. REPLACEMENT HOUSEHOLD SERVICES

12.54 Chapter 10 outlined the principles on which replacement household services should be provided by the Corporation, where these services had been provided to family members by the person injured prior to the accident. Earlier in this Chapter we anticipated that where a person killed as the result of a transport accident had provided household services, provision would be made for replacement of these services (paragraph 12.16). As in the case of injured providers of such services, benefits should only be available where the services provided were “substantial”. Thus replacement services should not be provided where the deceased performed only occasional minor household work. ⁶³ We recommend that, subject to the assessment of need, dependent family members of a person:

(a) who is killed in a transport accident; and

(b) who, before the accident, performed substantial household services for members of his or her household,

should be entitled to replacement services, to the extent necessary for the maintenance and preservation of the household of which the deceased was a member. If the household services rendered by the deceased were substantial, entitlement to benefits should not depend on whether the deceased was an earner or non-earner.

12.55 The general considerations governing the extent of household services to be provided should correspond with those applied in cases where the provider of services has been injured but not killed. ⁶⁴ Therefore, in assessing the immediate need, account should be taken of the services provided by the deceased, the extent of the need for such services of individual dependents, and the availability of substitute services from other family members. In addition, where a surviving spouse has formed a new relationship which provides additional support to the family, whether financial or in the form of household services, this should also be taken into account Accordingly, we recommend that in assessing the extent to which replacement household services are necessary, the Corporation should have regard to:

(a) the household services provided by the deceased before the accident;

(b) the number of dependents, their ages, and need f or household services;

(c) the household services that other family members could reasonably be expected to provide after the death of the person;

(d) any new relationship formed by a surviving spouse of the deceased; and

(e) any special factors affecting the need of the dependents for household services.

In determining what is reasonable for the purposes of paragraph (c), the same criteria should apply as in the case of a disabled service provider.

12.56 It is consistent with the emphas is on adjustment to the changed circumstances caused by death that substitute household services should be concentrated in the period immediately following death. As in the case of injury to the provider of household services, once emergency needs are met, consideration should be given to the financial position of the household. This should include the extent to which other compensation payable under the Scheme could reasonably be used for the provision of household services. Again, as in the case of injury to the services provider, we propose a limit of two years from the date of death on the provision of household services except in cases of special hardship. Therefore, we recommend that in assessing the extent to which replacement household services are necessary after the expiration of four weeks from the date of death, the Corporation should have regard to the following additional criteria:

(a) the compensation and other benefits provided to household family members arising out of the transport accident;

(b) the earnings and other income of the spouse of the deceased; and

(c) the resources, financial or otherwise, available to household family members to meet the need for household services.

Except in cases of special hardship, replacement household services should not be provided after two years from the date of death.

12.57 The reference to special hardship is intended to cover situations which parallel those in which periodic compensation may be made on the basis of needs, to the surviving spouse of a deceased earner. These would include situations:

• where the deceased was an earner, working part-time and living alone with an invalid spouse for whom he or she provided household services;
• where the deceased was a full-time earner but lived in a household where his or her spouse had the full-time care of an elderly relative and the deceased assisted the spouse in providing that care; and
• where the deceased and his or her spouse had a number of dependent children and both worked full time.

Even in cases of special hardship, entitlement to household services should still be governed by the overriding principle of need and such services should not be available for more than five years after the death. Accordingly, we recommend that where it would cause special hardship to terminate the provision of household services at the expiration of two years, the Corporation should have power to continue such services for a further period not exceeding three years.

VI. LIMITS OF BENEFITS

A. General Limits

1. Time Between Accident and Death

12.58 When a transport accident victim is killed, death usually occurs at the time of the accident or shortly thereafter. ⁶⁵ In such cases there is no problem of overlap between benefits provided to an injured person prior to death and benefits payable on death. However, if death does not follow immediately on the accident, the injured person will be entitled to all of the benefits normally available under the Scheme until death intervenes. If the death can be shown to be the result of the transport accident injury, the question then arises as to what allowance, if any, should be made against death benefits for benefits provided prior to death. Under the Victorian and Tasmanian no-fault schemes, compensation payable by way of death benefits is reduced by the amount of compensation paid prior to death. ⁶⁶ We are not persuaded that a straight set-off is justified when account is taken of the distinct purposes served by death benefits. This is especially so if death occurs not too long after the accident, at the end of a period of considerable stress on the injured person’s immediate family. The process of adjustment which must be made once death has occurred would have been impossible while the family’s resources were directed to the comfort and treatment of the seriously injured family member.

12.59 Under both the Victorian and Northern Territory schemes, no death benefits are payable if the death occurred more than two years after the accident, but under the Northern Territory scheme benefits paid during that two year period are not set off against death benefits. ⁶⁷ We agree that benefits received after the accident, but prior to death, should be retained and not set off against death benefits. However, we propose a period of five rather than two years. The extension from two to five years is unlikely significantly to increase the number of claims. This is partly because, as time passes, the causal connection between the original injury and death becomes less clear and therefore difficult to establish. After five years, the value of benefits already provided to the injured person is likely to exceed the maximum benefits available on death. In our view, if death occurs more than five years after the accident, no death benefits should be payable. Therefore, we recommend that where death, caused by or arising out of a transport accident, occurs:

(a) within five years of the accident, the benefits paid or provided to the accident victim prior to death should not be set off against benefits available on death; or

(b) five years or more after the accident, no further benefits should be payable.

2. Deaths in Rapid Succession

12.60 In some cases several members of a family may be killed in a single car accident. Where several family members are killed or injured at the same time, the existing law permits the payment of compensation to a child or spouse of the deceased who survived only for a few seconds after the deceased’s death. ⁶⁸ In our view it would be inappropriate for the Scheme to pay compensation in such circumstances. For this reason, we recommend that a person otherwise eligible to claim compensation for the death of another person should not be entitled to such compensation unless he or she survives the deceased for a period of not less than 30 days.

3. Deaths of Both Parents

12.61 Where both parents are killed in the same transport accident, benefits payable to surviving dependent children should be twice those normally payable when one parent has died. The total loss of parental support and acute problems of readjustment justify the payment of maximum benefits.

B. Limits on Periodic Payments to Spouse and Children

12.62 In actions under the Compensation to Relatives Act, 1897, there is no fixed formula by which a dependent family’s share of a deceased breadwinner's earnings is determined for the purpose of calculating the loss of material support provided by the deceased. The share depends on the level of the deceased’s earnings and the particular family circumstances. In one recent case heard in the New South Wales Court of Appeal, the Court determined that the proportion of income spent on this particular family (a dependent wife and two children) would vary from 50 per cent to 75 per cent over a period of 35 years. ⁶⁹ Under the Scheme, the deceased’s earnings form the basis for calculation of the periodic payments to a Surviving spouse with dependent children, during the five year period following death (paragraph 12.44). If the deceased had lived, compensation for loss of earning capacity would be limited to 80 per cent of pre-accident earnings up to a maximum of 150 per cent of AWE. ⁷⁰ It follows that death benefits in the form of periodic payments should be subject to corresponding limits as well as reflecting the degree of dependency of surviving family members. An upper limit of 65 per cent of the deceased’s earnings, which we recommend, appears to be sufficiently generous, especially when account is taken of the lump sum payment which can be used to reduce ongoing commitments, such as mortgage repayments, which would have been met out of the earnings of the deceased. We recommend that, where compensation by way of periodic benefits is paid to a surviving spouse with the care and control of children during the first five years after the death of an earner-spouse, total weekly payments to spouse and children should not exceed 65 per cent of the earnings of the deceased, subject also to a ceiling on the earnings of the deceased of 150 per cent of AWE ($630 at June 1984).

12.63 A corresponding limit should be imposed on total weekly payments to spouse and children in those categories of need in which a spouse is entitled to periodic payments up to 50 per cent of AWE (paragraphs 12.44 and 12.48). Therefore, we recommend that where compensation by way of periodic benefits is paid to a surviving spouse:

(a) with the care and control of children during a period after five years from the death of an earner-spouse; or

(b) in other cases where the earning capacity of the surviving spouse has been substantially impaired during the first five years after the death of an eamer-spouse,

total weekly payments to spouse and children should not exceed 65 per cent of the earnings of the deceased or 65 per cent of AWE, whichever is the lesser.

12.64 When a ceiling is imposed then the Corporation should apportion the amounts payable as between the spouse and children. No set formula is recommended for this apportionment because it could, in the interests of fairness, be adjusted according to the needs of the particular beneficiaries in particular cases. Therefore, we recommend that the Corporation should have the power to determine how any reduction in the compensation that otherwise would have been payable should be apportioned between the spouse and children.

12.65 Where no periodic payments are made to a surviving spouse but only to children (this will be the case, for example, where the deceased was a non-earner), it is appropriate to impose a ceiling on these payments equivalent to 32 per cent of average weekly earnings ($134.40 at June 1984). This would be sufficient to provide support and care to a family and there would be no reduction in benefits until the children were independent. We recommend that where periodic compensation is payable to children only, the total weekly compensation paid to all dependent children should not exceed 32 per cent of AWE.

C. Death of Spouse or Child

12.66 There is no justification for the continuation of payments of any kind once the eligible spouse or child dies. Therefore, we recommend that periodic compensation payable to a spouse or child should cease on the death of that spouse or child.

D. Remarriage of Spouse

12.67 We have already proposed that the marriage of a child excludes the child from being treated as such for purposes of entitlement to benefits (paragraphs 12.25 and 12.38), but we have recommended continuation of a child’s benefit if the surviving mother or father of that child remarries (paragraph 12.41). Periodic compensation payable to a surviving spouse should cease on remarriage. We recommend that compensation by way of periodic benefit to a surviving spouse should cease on the remarriage of the spouse.

12.68 The termination of the benefit in these circumstances may act as a deterrent to a surviving spouse to remarry. This plainly would be undesirable. Accordingly, a lump sum should be paid to a surviving spouse who remarries during the five years immediately following death. This is designed to offset the disincentive to remarry which termination of periodic benefits might otherwise create. We recommend that when a surviving spouse who is receiving periodic compensation remarries within four years of the deceased’s death, or up to one year before his or her youngest child attains 16, he or she should receive a lump sum payment equivalent to one year’s instalments of compensation. If the remarriage occurs in the fifth year after the death, or within one year of the youngest child attaining 16, the spouse should receive a lump sum payment equivalent to the remaining compensation which would have been paid by way of periodic benefit had the marriage not occurred.

VII. FUNERAL EXPENSES

12.69 Reasonable funeral expenses are provided under all existing schemes. This is one form of economic loss which the family of a deceased person would suffer, regardless of whether they were dependent on the deceased or not. We recommend that the reasonable funeral expenses of people killed in transport accidents should be met by the Corporation.

VIII. SOLATIUM

12.70 The Working Paper suggested that, where the deceased was a child, provision for a small payment as compensation for grief and suffering should be made. We were unable, even at that stage, to Justify any large payment and expressed some concern that a small payment might be seen as a form of tokenism and therefore insensitive in the circumstances. We also drew attention to the fact that no provision for such payment exists in any other scheme in New South Wales providing for death benefits. ⁷¹

12.71 The recommendations for the payment of compensation on death have been greatly modified since the Working Paper proposals. Particularly vulnerable groups among survivors have been identified and larger benefits have been recommended. As well as payments to surviving children affected by the death of a parent, more generous provision has been made for family members, especially where a surviving spouse can be identified as having particular difficulties in re-entering the workforce or in increasing workforce participation immediately following on death. These groups have first claim on available resources under the Scheme and it is likely that any money paid as solatium could only be set at a low level. In these circumstances, we recommend that no compensation should be paid as consolation for grief and bereavement (solatium) to a surviving spouse, children or other dependents of the deceased.

IX. ADMINISTRATIVE MATTERS

A. Interim Payments

12.72 We have stressed that compensation on death should provide especially for the short-term financial dislocation which death causes. This is an area of compensation where prompt payments to beneficiaries are essential. However, there could be many difficult cases arising out of the proposals concerning eligible claimants and the assessment of compensation. In such cases, delays in assessment could arise. This should not prevent prompt payment to those whose eligibility and minimum entitlement can be easily and clearly established. We recommend that the Corporation should have power to make interim payments pending determination of claims (including claims for apportionment of a lump sum).

B. Establishing Eligibility

12.73 Problems may arise in identifying eligible dependents where there is a number of potential beneficiaries for lump sum benefits. It will be essential for the Corporation to develop procedures to make sure that all those entitled to benefits receive them and that there is no overpayment of benefits to one claimant at the expense of another. Therefore, we recommend that the Corporation should develop procedures to ensure discovery of the identity of all persons eligible to claim the lump sum.

X. SUMMARY

12.74 The Scheme should provide compensation on the death of a person killed in transport accident. Emphasis should be placed on the readjustment required as the consequence of the death of a family member and also on the need to encourage able-bodied surviving family members to become self-supporting. Benefits should take the form of:

• a lump sum for the benefit of dependent family members; and
• periodic compensation for the spouse and children of the deceased.

Lump Sum

12.75 Dependent family members of the deceased should be entitled to claim a lump sum equivalent to 130 times AWE ($54,600 at June 1984). For this purpose dependence means not only financial dependence, but other forms of material dependence or interdependence. Thus the lump sum should be payable whether the deceased was an earner or non-earner. Ordinarily, the spouse and child of the deceased would claim the lump sum. Other family members may claim a share by establishing dependence.

Periodic Compensation: Spouse with Child-Care Responsibilities

12.76 A surviving spouse with child-care responsibilities should be entitled to periodic compensation on the death of an earner, in addition to claiming the whole or part of the lump sum. For a period of up to five years benefits should be paid at the rate of 50 per cent of the earning capacity of the deceased on a net (after tax) basis, to a maximum of 75 per cent of AWE (after tax). Thereafter a surviving spouse should be entitled to periodic compensation if he or she continues to have child-care responsibilities and cannot support himself or herself adequately. In these circumstances, compensation should be available to ensure that the income (including unused earning capacity of the spouse) does not fall below 50 per cent of the deceased’s earnings or 50 per cent of AWE, whichever is less. This additional compensation should cease when the youngest child attains 16 or the spouse remarries.

Periodic Compensation: Other Cases of Need

12.77 A spouse without child-care responsibilities may also have special needs because he or she is prevented by circumstances from resuming or undertaking employment. Where the earning capacity of a surviving spouse is substantially impaired due to:

• poor health;
• advanced age and lack of relevant work skills; or
• the need to care for an aged or disabled family member,

periodic compensation should be payable on the same basis as that which applies to surviving spouses with child care responsibilities during a period beyond five years from the death of the earner-spouse. Compensation in these cases of special need should be paid up to five years from the date of death.

Periodic Compensation: Children

12.78 Dependent children of the deceased, in addition to being able to share in the lump sum, should be entitled to periodic compensation at the rate of 8 percent of AWE ($33.60 in June 1984). This should be paid until the child reaches the age of 16 or, in the case of a full-time student or a mentally or physically handicapped child, 21 years.

Replacement Household Services

12.79 Replacement household services should be available to surviving dependent family members where such services were provided by the deceased. The criteria upon which entitlement to such services is determined should be equivalent to those applying in cases of injury (Chapter 10). This means that replacement household services should be supplied for an initial period of four weeks, after which additional factors such as family resources should be taken into account. Generally, household services should be provided for up to two years from the date of death; in cases of special hardship they should be continued for a further period not exceeding three years.

Funeral Expenses

12.80 Reasonable funeral expenses of people killed in transport accidents should be met by the Corporation.

1. Working Paper, cl.8.

2. Baker v. Bolton (1808) 1 Camp 493.

3. See para.2.10.

4. See para.2.34,

5. See para. 14. 100.

6. Jones v. Schiffman (1971) 124 CLR 303.

7. McIntosh v. Williams [1979] 2 NSWLR 543.

8. Heffernan v. Accidental Minerals Corporation of Australia [1978] 2 NSWLR 412.

9. Compensation to Relatives Act, 1897, s.3(2).

10. Law Reform (Miscellaneous Provisions) Act 1944. s.4. See State Rail Authority of New South Wales v. Sharp [1981] 1 NSWLR 240.

11. An example would be a child who suffers shock when told, on arriving at a hospital, that a parent has dies. Cf. McLoughlin v O’Brien [1982] 2 All ER 298; Jaensch v Coffey (1984) 58 ALJR 426.

12. Workers’ Compensation Act, 1926, s.8(1), (1A).

13. Id., s.8(2).

14. Id., s.8(3).

15. Id., s.8(4).

16. Accident Compensation Act 1982 (NZ), s.65.

17. Id., s.70.

18. Id., s.82.

19. Motor Accidents Act 1973 (Vic.), ss.26, 27.

20. Id., s.30(2).

21. Motor Accident (Liabilities and Compensation) Act 1973 (Tas.), schedule 1, part III.

22. Id., schedule 1, part IV, cl.1(5).

23. Motor Accidents (Compensation) Act 1979 (NT), ss.22. 23.

24. Id., s.25.

25. Id., s.24.

26. Id., s.26.

27. See paras.2.10, 2.34, 2.38, 2.48 and 2.50.

28. Working Paper, paras.8.13-8.21.

29. Submission W28, p.6.

30. The term “earner” should be given the same meaning as it was in para.7.8.

31. See paras.12.2-12.8.

32. Australian Woodhouse Report, vol.1, paras.357-361.

33. See Working Paper, paras.8.7-8.10.

34. Workers’ Compensation Act, 1926, s.6, Motor Accidents Act 1973 (Vic.), s.3; and Motor Accidents (Compensation) Act 1979 (NT), s.4.

35. At the time of writing, the De Facto Relationships Bill and Cognate Bills had been passed by both Houses Of the New South Wales Parliament and were awaiting assent and proclamation.

36. New South Wales Law Reform Commission, Reporton De Facto Relationships (LRC 36,1983), paras. 17.4-17.9.

37. Compensation to Relatives Act, 1897, s.7.

38. Workers’ Compensation Act, 1926, s.6.

39. Student Assistance Regulations (Cth.), regs.29(2), 41.

40. Sections 94(2A), 103.

41. Section 8(1) (b).

42. Compensation to Relatives Act, 1897, ss.4, 7.

43. Workers’ Compensation Act 1926, s.6.

44. Australian Bureau of Statistics, Summary Characteristics of Persons and Dwellings (New South Wales), Cat No. 2435.0, p.14, table 18. See also Appendix A, para.A.6.

45. Australian Bureau of Statistics, 1981 Census of Population and Housing-Census Statement 4 (October 1982) sheet 2, table 9. See also Appendix A, para.A.5, Table A.2.

46. Fifty-six percent of those killed were under 30 years of age. See Traffic Authority of New South Wales, Road Traffic Crashes in New South Wales, Statistical statement year ended December 31st 1982, pp.12, 13.

47. See Motor Accidents (Compensation) Act 1979 (NT), s.25; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), schedule 1, part IV, s.1(4), (5).

48. Submissions W53, para.8.2, W59, paras.5.4, 5.5 and 5.8.

49. Declared by Income Tax Rates Act 1982 (Cth.), ss.14, 16 and schedule II.

50. Income Tax Assessment Act 1936 (Cth), s.102AJ.

51. S W Cavanagh, Background Paper on the Income Tax Assessment Act 1936 (Cth) (unpublished Commission document, 1984), p.14.

52. A further advantage of a general exemption is that it would apply to “full-time” students between 18 and 21 and not only minors (ie. persons under 18).

53. This is particularly the case in assessment of common law damages. See eg. the comments of Zelling J. in Fisher v. Smithson (1977) 17 SASR 223, at p.241 regarding the undervaluing of the losses of children.

54. Australian Bureau of Statistics, Labour Force Australia, March 1984 (preliminary estimates), Cat No.6202.0, p.6, table 1.

55. Appendix A, Table A.8.

56. Id., Table A. II.

57. Id., paras.A.28-A.29.

58. Id., Tables A.20 and A.21.

59. Id., Paras.A.44-A.45 and conclusions of B. Cass and M. O’Loughlin. Social Policies for Single Parent Families in Australia (Social Welfare Research Centre Report No.40, March 1984), p.10, table 3.

60. As may be necessary in the case of periodic payments to children, see para.12.39.

61. Cf. Federal Commissioner of Taxation v. Slaven (1984) 15 ATR 242.

62. See paras.14.18-14.19.

63. See para.10.4.

64. See paras.10.5-10.6.

65. For statistical purposes in New South Wiles, both the Traffic Accident Research Unit and the Australian Bureau of Statistics use only those deaths which occur within thirty days of injury. See Traffic Accident Research Unit, Road Traffic Crashes in New South Wales-Year ended December 31st 1980, p.7; Australian Bureau of Statistics, Road Traffic Accidents Involving Casualties (Admission to Hospitals) Australia (March Quarter 1981), Cat No.9405.0, p.l.

66. Motor Accidents Act 1973 (Vic.). ss.25,26 and 27; Motor Accidents (Liabilities and Compensation) Act 197; (Tas.), part IV.

67. Motor Accidents Act 1973 (Vic.), ss.26, 27; Motor Accidents (Compensation) Act 1979 (NT). ss.22, 23 and 24.

68. Conveyancing Act, 1919, s.35.

69. Nash v Miners, 6 April 1983, Supreme Court of New South Wales. Court of Appeal.

70. See paras.8.22, 8.29.

71. Compensation might be payable for the death of a child in consequence of a tort action for nervous shock under the Law Reform (Miscellaneous Provisions) Act, 1944, part III, or as criminal injuries compensation: see Crimes Act. 1900, s.437. It is not available under the Compensation to Relatives Act, 1897 or under any of the existing no-fault schemes either in Australia or New Zealand.