Anyone Ever Initiated a Civil Suit for Wrongful Death of Relative against Employer?

Hi,

Cut a long story short, my only brother was killed a while back - an employee of a company, on a paid company job, in the middle of the working day, in a company vehicle ran him over, killing him. Through a long and painful process this employee has been found guilty of 'Dangerous Driving Causing Death' plus other offences (which included testing positive to an illegal drug at the scene of the accident).

My brother had no dependants but his death has and I can't emphasise this enough, gutted my elderly mother - who doted on him from birth as he was borderline special needs in many ways.

Her marriage broke down and she was in financial distress. I've recommended she initiate a civil suit against the employer's public liability insurer and use the funds to rebuild her life and do good things in my dead brother's memory.

I SEEK NO MONEY MYSELF whatsoever.

I'm wondering if folks have experience in such matters - given the facts of the case are already largely established via the criminal case company employee in company car killing a citizen. Just general experiences or tips in negotiating & initiating with Civil Suit lawyers?

FWIW the state of the employer of the driver & location of accident is Victoria. The company seems to have changed names or ceased trading but they will have had public liability insurance at the time of the incident, without going into it too much they were in a field were it would have been mandatory.

Thank you in advance for your feedback if you've experience in such areas. :-)

EDIT: As I am a complete layperson I expressed my thought that it seemed a clear liability case, but others have said this is or may not be the case. Thus I have corrected and removed this so as not to derail matters.

I am seeking general experiences in dealing with and selecting Lawyers in this area ONLY - i.e should she select a lawyer who lives close to her (in NSW) or one who lives close to the incident (in Victoria)?

Comments

  • +6

    given the case is a very clear cut

    There is no such thing when it comes to matters of the law, trust me.

    It may seem clear cut, but this won't be a "turn up to a court room for 2 days" sort of deal. This will cost you tens, if not hundreds of thousands of dollars in lawyer fees and months (years) of courtroom appearances and angst.

    Sounds like you want to file a civil suit against the COMPANY and not the PERSON? How big is the company? They can probably afford better lawyers than you and can drag it out.

    You mention that the employee was found guilty but didn't mention anything about the company. I'm guessing the company was found to not be negligent in the case, so in a civil suit, how will you prove that? A company isn't just willy nilly liable for anything an employee does. If this guy was strung out on drugs when he did this and it wasn't related to his employment then it's nothing to do with the COMPANY.

    And if you did file a civil suit against the EMPLOYEE then do they even have any money or would they just declare bankruptcy?

    Honestly, if your mother is this torn up about what's happened already, a civil suit that may not even win could do more harm than good.

    company employee in company car killing a citizen

    Again, this doesn't magically make the company liable and I'm guessing this was found out during the case brought forth by the Crown because, again, you said the employee was found negligent not the company.

    I've bore witness to both sides of Crown and civil suits related to similar things with companies and employees either causing harm or being harmed/killed. These cases are anything but simple and the people that generally end up winning are the lawyers.

    • -5

      I appreciate your feedback - can you please state any credentials etc that you give this info from?

      Perhaps nothing is 'clear cut' but that aside lets just say this is the nearest thing to it - &/or the facts are not in dispute. The employer isn't large, in fact I believe they've either ceased trading or phoenixed into another trading name. But given the line of work they were in they'd have had public liability insurance.

      I do not understand your points - you refernced the employer having not been in court for the dangerous driving etc - and that being indicative of anything. Such offences are criminal and charged on an individual level - thus would never apply to an employer, thus I do not understand your point or inference.

      You again reference witnesses many cases, so if you could state your position from viewing this it might assist. As respectfully there's many a Judge Judy fan who I've had tell me they're essentially a QC on anything legal. :-)

      • +3

        I appreciate your feedback - can you please state any credentials etc that you give this info from?

        None. I am not a lawyer. I have close family and friends that are lawyers both for the government as prosecutors and defence, but that doesn't mean anything, you need to consult an actual lawyer.

        the facts are not in dispute.

        Yeah, so the case will be about proving damages which is the murky thing. How much is a human life worth? I can tell you it's a few hundred thousand dollars.

        Such offences are criminal and charged on an individual level - thus would never apply to an employer, thus I do not understand your point or inference.

        My point is that the entire case you mention was brought against the individual. The company wasn't involved in the case at all, right? So why would they be suddenly liable in a civil suit for the actions of an individual that had nothing to do with the company?

        Do you actually feel that the company is in any way liable for the actions of this individual that lead to the death of your brother?

        Think of it like this. If your brother died as the result of an employee of a company doing something where it was found out that the company had poor processes in place, such as not placing the correct safety equipment around a public area whilst performing works, then sure, the company is liable because of negligence. However that's not what happened here.

        . As respectfully there's many a Judge Judy fan who I've had tell me they're essentially a QC on anything legal. :-)

        I've never made such representation. I gave you my opinion, I never stated that I am a Crown Solicitor or any such thing.

        You've come to a public forum where anyone can provide their two cents. At the end of the day none of this means anything and you need to consult with an actual lawyer on such things for them to tell you if they think there is a case to be brought forward.

        They will explain to you as well the effort that will be required, and you need to think long and hard about the impact this would have on your family both financially and emotionally.

        • I thuoght my OP was clear in that I was seeking general guidance - yes, I may have erred in my personal opinion that it was a very 'open and shut' case - but thats personal opinion only and was clearly gven as such.

          So repeatedly saying I need to consult with a lawyer is something I know and the core reason as why I am here. :-)

          I didn't say YOU made such a representation - merely that many folks on this and other subjects have implied they know everything, making it clear I should listen to them - I was just trying to clarify as I clearly stated, so I could factor this when processing your thoughts.

          • +1

            @Daniel Plainview: Just be mindful that unless you ask a trustworthy lawyer, it's like asking a hammer what to do with a nail. (Quote butchered and stolen by me)

  • +1

    Would an insurer even cover the business if the employee was driving under the influence, sounds like you would need to go after the driver directly, obligatory not a lawyer statment.

    • +1

      Possibly not. Depends on the coverage they have.

      In any case, dangerous driving of an employee doesn't mean the company is responsible for it.

    • I don't know this exactly and thisi s why I am not seeking legal advice here - rather only as stated IF anyone went through anything similar or has actual knowledge of a similar case.

      • rather only as stated IF anyone went through anything similar or has actual knowledge of a similar case.

        Anyone that has been involved in a similar case either for or against someone, will be reluctant to disclose any particulars of the said and may not even be legally allowed to.

        • -1

          Perhaps - or they might be more than happy to discuss. :-)

    • The thing is if one isn't a lawyer then it's essentially a well meaning guess. So just muddies the waters. The criminal charges were applied WITHOUT the factor of the drugs being considered -, too difficult to explain - but essentially gross negligence in driving the heavy motor vehicle was the SOLE factor the court weighed.

      • +2

        Then you should really post in a legal forum not a bargain forum. I have poked a huge hole in your "easy" case, a similar situation will not help your specific situation, you should consult a lawyer. Yes I know insurance won't cover the driver due to the under the influence , now if the employer is liable , that would require a much much more in depth review.

        • -4

          Unsure if you're exactly the person who should be annoiting your success in poking holes, but sure.

          I thought I made it rather clear I was seeking guidance in civil suits as a whole - rather than specifics on the case, which I've mentioned only scantly - so I think you've misunderstood. :-)

    • OP firstly my condolences for your loss. In my opinion (without having any legal knowledge) would be that you might have a case. All work places should have health & safety practices to prevent this kind of accidents. They should have documented training of staff of those health & safety practices (e.g 3 meters away of any working/running vehicle). Secondly maybe a Victoria lawyer might be a better suit, the accident happened in VIC so laws might be different from State to State. Again I am sorry for your loss and I hope you find justice if there is such thing.

  • +1

    Choose your lawyer carefully. Doesn't take much to initiate, but following through is a lot of work.

    • -1

      True, hence I'd happily accept recommendations specific to this area of civil law - if folks have had good experiences with them. This would be a lot more handy than well meaning folks who don't know 95% of the case specifics I've ommitted giving their decree on all manner of things from my mother's 'best interests' to the case outcome. :-)

  • +4

    No win no fee sounds like much better idea

    • You may be correct - I have no posted pretending to be an expert - so this type of feedback is helpful as I am just looking for basics to try and ease the burden on my mother.

      • +1

        It’ll give you a much better idea of where you stand if a no win no fee lawyer refuses the case

  • See a lawyer, this wont get to trial. it will cost you/youre mother $$ in the short term (max 2 years - go-to-wo)

  • +3

    First of all, I want to express my condolences and I am very sorry for you having lost a brother this way and for your mother, who lost a son.

    My comment here doesn't answer your question at all but I hope you and your family are doing OK and are at least seeking help, most importantly mentally and if possible, financially.

    Someone might have shared this link before, but if not, hope it's useful.

    https://www.servicesaustralia.gov.au/what-help-there-when-ad…

    • Appreciate your kind words and sentiments.

      Also much thanks for the link, thankfully I'm rather weathered from a life of troubles aside from this - but she's not. But she's dealing with a lot of folks so has those fronts covered, though it's not helping much at present. C'est la vie.

  • Change the environment a bit. Say the incident didn't happen at work. Who would your mum sue then?

    What is she suing for? Her financial distress, although unfortunate, isn't the company's fault. Say she wins a payout. What if she suffers financial distress again afterwards? Does she sue them again, and are they responsbile?

    • Yeah I can't speak on her behalf. If we start changing variables any answer might change. :-)

      The exact legal basis is something she'd have to be guided on - in simple terms I can only say she's a ruined person - sounds dramatic right? Yeah well, alas thats what she is…no need for me to gild the lilly here.

      Again I can't answer for her and not sure of your implication sorry. :-)

  • +3

    My previous employer was involved in a workplace incident where 2 people were killed in an awful way.
    They were not solely responsible for it, other companies were too.

    It was a combination of work practices and bad decisions that lead to the incident.

    If you looked at the facts and the incident, you could of called it clear cut. (i still call it clear cut, it was one man’s negligence)

    The courts did not view it that way… took them years to finalise blame and fines etc.

    The pay outs were not amazing to the families from what i heard.

    Long story short.
    Your unfortunate situation is terrible and I’m sorry for your loss, but don’t bank on anything being easy and straightforward in court.

    Also weigh up the physical/mental/emotional tax that will take on your elderly mother having to discuss and hear details about your brothers death for an extended period of time.
    And then imagine the despair and absolute crushing feeling of wasting year/s and a ton of money to get told you lose or they just declare bankruptcy.

    • Appreciate your feedback and taking the time to share those specifics. Its particularly meaningful given the similarities.

      FWIW the civil aspect as it pertains to my mother's health is one where unlike the criminal one, where she's felt obliged to hear every second of it - I'd expect she could leave to lawyers. And as such have minimal input in as the facts are already largely substanciated due to the criminal proceedings.

      Thank you again.

      • No problem mate.

        The only other thing i would add is: don’t think just because your mother doesn’t need to be directly involved with the whole process, it won’t affect her.

        Knowing that someone is rehashing over the details and going to make a decision would affect most people.

        And despite you guys already having seen a conviction, you may still feel like you lost and no one cares if you are not awarded compensation.

        Not sure i worded that well… but basically- by starting this process you will open older wounds and likely bring more pain regardless of outcome.

  • +1

    So many things at play here,
    Was there a Workcover settlement,
    Has Workcover instigated action already against the employee for recovery, Can your mother / brothers family be be included in any recovery action if any by the insurer?
    Was their life insurance, stand alone or under super, Can your mother / brothers family be be included in any recovery action if any by the insurer?

    • I'm not aware of anything like this. I'd have thought Workcover would only come in if my brother had been at work himself when this occurred. I might be wrong but I know nothing from the perpetrators side of things.

      My mother was sole recipient of his estate which did have a small sum of life insurance via his super, which has been incredibly difficult for her to access and is ongoing despite her being granted full probate on his estate. Thats allowed her to stop literally having to couch surf for a place to live.

      There may never be anymore compensation, I've no issue with that - we're not chasing cash for the heck of it - just without getting into specifics of the case it's been rather challenging for her and trying to address fairly.

      I've told her to sue the driver to take his home but she is no vindictive like me, and she refused this.

  • +1

    only the 'no win, no fee' model is available - which I tell her is nonsense.

    Why do you think this is nonsense? I've been to court a couple of times and have close friends go through it too so have a few stories.

    First up, It is EXPENSIVE! There is no way around this cost. Good lawyers charge a lot and court cases take a lot of time to prepare. Someone has to pay, so your choice is pay as you go (possibly months or years of huge ongoing costs) or no win no pay.
    Don't take my word for it, go chat to any lawyer, you're probably looking at 50k-100k in fees minimum to take a case to court. The no win-no fee model works because you are de-risking yourself from potentially huge expenses.

    Secondly, I've never met a single person who went to court and came away thinking that was worth it. For someone like a family death you will be reliving that over and over for months on end. What is that worth to you?

    Thirdly, what sort of payout are you expecting? If you won say $200k and it cost you $150k in legal fees and a year of your life of emotional trauma is that a win to you?

    Lastly, you say the person was "criminally convicted for it". I'm not a lawyer but that may not make it as clear cut as you think. Insurance companies always have a whole lot of rules about responsibility, and criminality throws a lot of that out of the window.

    Tread carefully, you have the potential to make your mum's life a whole lot worse and lose a whole lot of money in the process.

    • 1 - Ive covered this extensively, is a laypersons opinion, have alredy said I will reconsider this based on the feedback.

      2 - Cool . I'd say thats a call we'll make - suffice to say I do not expect it would have a lick on the criminal proceedings.

      3 - I have no expectations but again I think as with #2 thats a personal call we'd make in due course.

      4 - Ok.

      5 - Appreciate your 'concern' rest easy I have a tad more knowledge and interest in my mothers welfare but thank you. :-)

  • +2

    The issue/area you need to research is "vicarious liability" and whether there was a duty of the employer to provide a safe system of work. This can vary depending on what type of industry it is.

    e.g. A junior accountant who is run over by a senior accountant who was taking the boss out to meet a client is different to that same scenario involving a transportation company where the standard is much higher.

    Was there any requirement for mandatory drug testing? Do peers in the industry conduct mandatory drug testing? Was there anything that the employer could have done to prevent it?

    Drug use is prolific in Australia. I would say around 30-40% of Australians are frequent drug users. In the worst case scenario you will run across a judge who is sympathetic to drug decriminalisation.

    It is definitely not a clear cut case. There are a lot of dodgy cases I have come across. Legal professionals will often complain that cases with similar facts can lead to two different outcomes, but they ignore the obvious answer which is the human condition and biases which influence the legal outcomes and how the ratio is framed. These two streams may not be clarified even when it reaches the High Court level as every case has distinguishing facts. Not many people will tell you the truth about the broken Australian legal system.

    The legal system is not designed to be fair. Fairness is not a legal principle. The legal system is a list of precedents and rules loosely followed by judges, often branching out to at least two different streams depending on their own personal biases. That is the honest truth.

    If you don't like the outcome from your legal advice, determine the distinguishing facts in your case, and find another lawyer who will try. If you have the money that is…

  • What was the result of the state work cover/ WorkSafe investigation (all deaths at work require an investigation)? AFAIK any time a death at work occurs there is a course for compensation through the state WHS authority separate to a personal lawsuit against the employer.

    • Covered several posts above, I've no knowledge of this as it pertains to my brother's death at all.

  • +1

    Condolences

    Best to see a lawyer that specialises in these cases. The Law Institute in your state or the state the accident occurred is a good place to start for referrals to lawyers in this field.

    • Appreciated, my mother is coming back home soon - I'll discuss all the points raised with her then, is ultimately her decision how to handle. Much thanks.

  • +2

    I would've thought the compulsory third party insurance would cover that, drink or not:

    https://www.qbe.com/au/news/ctp-explained

    CTP covers the cost of the injured person’s medical treatment, lost earnings or, in more serious cases, ongoing care. If they die, it may also compensate their relatives. Third parties include other drivers, passengers, pedestrians, motorcyclists, and cyclists.

    • +1

      Yes & no.

      As mentioned occurred in VIC - they covered his funeral costs, which were next to nothing as the family was too upset to do anything much. And thats it.
      https://www.tac.vic.gov.au/what-to-do-after-an-accident/how-…

      I've just msged my mother, who I know is getting a lot of counselling still - if she's ensuring its paid for via this - I bet she wasn't knowing her.

      Is fair enough they don't pay any compo if he had no dependants - as he didn't. But thank you for flagging. :-)

  • How long ago did the accident happen? Did your mum's marriage break down as a result of that?

Login or Join to leave a comment