What is a Wrongful Death Lawsuit?

In January 2020, Indigenous woman Veronica Nelson was found dead in her cell at Dame Phyllis Frost Detention Centre in Victoria.

Last year, a Coronial Inquest heard evidence Coronial Inquest heard evidence that Veronica made more than a dozen calls to prison guards for help before she died. The inquest heard that the official cause of Ms Nelson’s death was Wilkie’s Syndrome, a rare medical condition that affects the intestines.

At the time of her death, Ms Nelson was also suffering from heroin withdrawal.

She had been arrested and taken into custody after being refused bail over suspected shoplifting offences.

Partner launches wrongful death suit

Now, her long-term partner, Percy Lovett, has commenced a wrongful death lawsuit over the alleged negligence of prison officers in not responding to Veronica’s calls for help, let alone obtaining medical assistance in circumstances where they had a duty of care to do so.

According to documents filed in the Supreme Court of Victoria, the claim has been made against five parties – the State of Victoria, Corrections Victoria, the Department of Justice and Community Safety, Justice Health’s executive director and contractor Correct Care Australasia.

Mr Lovett is seeking aggravated and exemplary damages, and a court declaration that the five defendants breached the Charter of Human Rights and Responsibilities Act 2008.

The Charter of Human Rights and Responsibilities Act

Section 22 of the Charter of Human Responsibilities Act 2006 stipulates that a person who is deprived of his or her liberty has a legal right to humane treatment. It states:

• All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
• An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.
• An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

Corrections Act

Section 47 of the Victorian Corrections Act 1986 provides that those detained in prison custody have:

(f)   the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner’s own expense, a private registered medical practitioner, dentist, physiotherapist or chiropractor chosen by the prisoner;

 The section proceeds to state that:

 (g)  if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor’s approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

 (h)  the right to have access to reasonable dental treatment necessary for the preservation of dental health.

 Negligence

Mr Lovett claims his partner’s death was “caused or contributed to by the negligence, breach of statutory duty and/or wrongful acts or omissions of the defendants, jointly or severally”.

Negligence is essentially where a party who owes a duty of care to another breaches that duty by failing to act in circumstances where it is reasonably foreseeable the failure would lead to harm to the person to whom the duty is owed.

Coronial inquest

The Coronial Inquest heard evidence that Ms Nelson’s death was indeed preventable – that she may not have died if prison guards obtained medical assistance for her.

The Coroner’s final report has not yet been released, but there was significant media reporting during the inquest, including released recordings of Ms Nelson’s final hours in which her pain was obvious, and yet she remained polite with prison staff,using terms such as “Miss” and “Thank You” over intercom calls as she repeatedly asked for help with worsening vomiting, cramps and pain.

The inquest heard that prison officer Tracey Brown, who was on night shift in the prison unit where Veronica died, didn’t check her cell after she became unresponsive on her final intercom call.

The same night, the on-duty nurse Atheana George, spent hours watching a movie, apparently unaware Ms Nelson was dying in her cell.

In documents tendered to the court, Mr Lovett claims that all five defendants had a duty to prevent him from suffering mental health and the defendant’s failure to  adequately investigate Ms Nelson’s death had caused or contributed to his injury, he has further alleged.

“As a result of the negligence, breach of statutory duty, and/or wrongful acts or omissions of the defendants, the plaintiff has suffered injury, loss and damage,” the documents state.

For now, neither the Victorian Government, nor the other organisations named as defendants in the civil suit have commented, claiming that it would be inappropriate now that the case is officially before the courts.

The case, however, might finally highlight the vast problems within Australia’s prison system, which acutely affect Indigenous Australians who are disproportionality imprisoned and continue to die in alarming numbers in custody.

What is a wrongful death lawsuit?

Each jurisdiction across the nation has legislation which enables surviving family members of those who die as a result of the negligent, reckless or intentional acts of others to sue for damages.

These actions are commonly known as ‘wrongful death lawsuits’.

The legislation that applies in New South Wales is known as the Compensation to Relatives Act 1897.

The terminology used in the Act reflects its age. In that regard, section 3(1) provides that:

“Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence.”

So in simple terms, a person who causes the death of another by some wrongful act, neglect or default is liable for damages despite the victim not being alive to pursue the action.

The party making the claim need only establish the wrong ‘on the balance of probabilities’ – in other words, that it was more likely than not – and not beyond a reasonable doubt as in the criminal law.

In equally archaic language, section 4(1) provides that:

“Every such action shall be for the benefit of the spouse, brother, sister, half-brother, half-sister, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct.”

So, an action can be taken by the deceased person’s spouse, brother, sister, half-brother, half-sister, parent or child. It must be shown that there was some degree of personal or financial dependence between the deceased and the person making the claim before the former’s death.

The action is normally brought by the executor or administrator of the deceased’s estate on behalf of the eligible person. In the event there is no such claim by any executor or administrator within 6 months of the death, the eligible person or persons may then bring the action in their own name/s.

Section 5 of the Act makes clear that, ‘Not more than one action shall lie for and in respect of the same subject matter of complaint’.

What types of damages may apply?

Damages under the Act include loss of financial, loss of care and domestic and expenses arising from the act such as funeral expenses.

It is important to note there is no cap on damages under the Act, and there are provisions for changes in life circumstances that may affect the amount of the award.