NORTHERN TERRITORY OF AUSTRALIA COMPENSATION (FATAL INJURIES) ACT As in force at 17 March 2004 TABLE OF PROVISIONS Section 1. Short title 2. Repeal 3. [Repealed] 4. Interpretation 5. Application 6. Act binds the Crown 7. Liability in respect of the death of a person 8. One action for the benefit of members of deceased person's family 9. [Repealed] 10. Damages 11. Contributory negligence 12. Payment into Court 13. Alternative action where personal representative is not appointed or does not bring action 14. Special endorsement on writ of summons 15. Powers of the Court to make orders in relation to actions 16. Provisions applicable where action tried before court with a jury Notes Table of Amendments NORTHERN TERRITORY OF AUSTRALIA ____________________ This reprint shows the Act as in force at 17 March 2004. Any amendments that may come into operation after that date are not included. ____________________ COMPENSATION (FATAL INJURIES) ACT An Act relating to compensation to relatives of persons whose deaths are caused by wrongful act, neglect or default 1. Short title This Act may be cited as the Compensation (Fatal Injuries) Act. (See back note 1) 2. Repeal (1) The Compensation (Fatal Injuries) Ordinance 1938 and the Compensation (Fatal Injuries) Ordinance 1970 are repealed. (2) Notwithstanding the repeal made by subsection (1), the provisions of the Compensation (Fatal Injuries) Ordinance 1938 as amended continue to apply in relation to a cause of action in respect of the death of a person that occurred before the commencement of this Act. 3. [Repealed] 4. Interpretation (1) In this Act, unless the contrary intention appears - "child", in relation to a deceased person, includes an adopted child and a grand-child and a stepchild of the deceased person; "parent", in relation to a deceased person, includes an adoptive parent, and a step-father, a step-mother, a grand-father, and a grand-mother of the deceased person; "personal representative", in relation to a deceased person, means the person to whom a grant of probate of the will or administration of the estate of the deceased person has been made in a State or Territory and includes an executor by representation of the deceased person, the Public Trustee if he is administering the estate of the deceased person and the Curator of Deceased Estates if he is administering the estate of the deceased person. (2) Each of the following persons is, for the purposes of this Act, a member of a deceased person's family: (a) a spouse or de facto partner of the deceased person; (b) a child of the deceased person; (c) a person to whom the deceased person stood, immediately before his death, in loco parentis; (d) a person who stood, immediately before his death, in loco parentis to the deceased person; (e) a parent of the deceased person; (f) a brother, a sister, a half-brother and a half-sister of the deceased person; (g) a former spouse or de facto partner of the deceased person. (3) For the purposes of this Act - (a) [Omitted] (b) a child of a deceased person born alive after the death of that person shall be treated as having been born before the death of the deceased person; and (c) [Omitted] (d) an infant to whom a deceased person stood, immediately before his death, in loco parentis shall be treated as the child of the deceased person. (4) A reference in this Act to an action or proceeding shall, unless the contrary intention appears, be read as a reference to an action or proceeding under this Act. 5. Application (1) Subject to subsection (2), this Act applies only where a death occurs on or after the commencement of this Act, whether the act, neglect or default that caused the death occurred before or after that commencement. (2) This Act does not apply to or in relation to a death occurring in or as a result of an accident within the meaning of the Motor Accidents (Compensation) Act, except in those circumstances in which an action in respect of that death is not precluded by that Act. 6. Act binds the Crown This Act binds the Crown. 7. Liability in respect of the death of a person (1) Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime. (2) A settlement, release or judgment in respect of the wrongful act, neglect or default causing his death made, given or obtained by the deceased person after the commission or occurrence of the wrongful act, neglect or default does not, subject to section 10(5), affect the liability of a person to an action under this Act. 8. One action for the benefit of members of deceased person's family (1) Not more than one action may be brought against any one person in respect of a death. (2) Subject to section 13, any such action shall be brought by and in the name of the personal representative of the deceased person for the benefit of those members of the deceased person's family who sustained damage by reason of his death. 9. [Repealed] 10. Damages (1) The court may award to the parties respectively for whose benefit the action is brought, such damages as it may think proportioned to the injury resulting from the death of the person injured. (2) The amount of damages recovered under this section shall, after deducting the costs not recovered from the defendant, be divided amongst the persons for whose benefit the action is brought in such shares as the court determines. (3) Damages in an action may include - (a) the reasonable expenses of burial or cremation of the deceased person that are incurred by a person for whose benefit the action is brought; (b) the reasonable medical and hospital expenses of the deceased person in relation to the injury that resulted in the death of the deceased person that are incurred by a person for whose benefit the action is brought; (c) if the deceased person is survived by a spouse or de facto partner - damages for loss or impairment of consortium in the same manner as damages would be assessed in a claim in tort by a husband for damages for loss or impairment of consortium; (d) if the deceased person customarily performed household services - the reasonable expenses that would be incurred by a person for whose benefit the action is brought in respect of the hire of help to perform those services; (e) if the deceased person is survived by a child of his who is an infant - (i) the reasonable expenses that would be incurred by a person on whose behalf the action is brought in respect of the hire of a person to live in the home and care for the infant until the infant attains the age of 18 years; and (ii) damages on account of loss of care and guidance of the child by the deceased person as a parent; and (f) solatium. (4) In assessing damages in action, no reduction shall be made on account of - (a) a sum paid or payable on the death of, or personal injury to, the deceased person under a contract of insurance; (b) a sum paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society, lodge or trade union; (c) a sum paid or payable by any government or person consequent upon the death or injury of the deceased person and being - (i) a payment in lieu of furlough or long service leave; or (ii) a payment by way of pension, social service benefit or repatriation benefit; (d) a sum paid or payable as a gratuity consequent upon the death of the deceased person; (e) any sum in respect of the acquisition by a member of the deceased person's family, consequent upon the death, of, or an interest in, a dwelling used at any time as the home of the member, or of, or of an interest in, the household contents of any such dwelling; (f) a premium that would have become payable under a contract of insurance in respect of the life of the deceased person if he had lived beyond the time at which he died; (g) any other gain or benefits that have accrued or may accrue to the deceased person's estate or to any person for whose benefit an action is brought consequent upon the death of the deceased person; or (h) the marriage or entry into a de facto relationship, or the prospects of doing so, of a surviving spouse or de facto partner or a surviving former spouse or de facto partner. (5) A payment made in pursuance of a settlement, release or judgment in respect of the wrongful act, neglect or default causing his death made, given or obtained by the deceased person within the period of 6 months after the commission or occurrence of the wrongful act, neglect or default causing his death shall be taken into account in assessing damages in an action. 11. Contributory negligence (1) Where a person dies as the result partly of his own wrong and partly of the wrong of another person or other persons, and accordingly, if an action were brought for the benefit of his estate under Part II of the Law Reform (Miscellaneous Provisions) Act, the damages recoverable would be reduced, any damages recoverable in an action under this Act shall be reduced to the same extent as if they were damages in an action so brought for the benefit of the estate of the deceased person. (2) In this section, "wrong" has the same meaning as in Part V of the Law Reform (Miscellaneous Provisions) Act. 12. Payment into court (1) Where an action is brought under this Act, the defendant may pay an amount of money into court as compensation for the benefit of the persons for whose benefit the action is brought and who are entitled to compensation under this Act. (2) Where an amount of money is paid into court by way of compensation, no portion of that amount shall be paid out of court except in pursuance of an order of the court. 13. Alternative action where personal representative is not appointed or does not bring action (1) Where an action has not been commenced by and in the name of the personal representative of a deceased person within 6 months after the death of the deceased person, any one or more of the persons for whose benefit an action may be brought may bring such an action. (2) An action brought by a person other than the personal representative of the deceased person shall be for the benefit of the same persons and subject to the same provisions and procedures, mutatis mutandis, as if it were brought by the personal representative of the deceased person on behalf of those persons. 14. Special endorsement on writ of summons The writ of summons or other process by which an action is commenced shall, in addition to any other endorsements required or permitted to be made, be endorsed with a statement specifying the names of each of the persons for whose benefit the action is brought and the relationship of each of those persons to the deceased person. 15. Powers of the court to make orders in relation to actions (1) Where - (a) an action has been commenced; and (b) the court is satisfied that a person whose name is not included in the names of the persons for whose benefit the action is stated to have been brought is a person whose name should have been so included, the court may, on application made by or on behalf of that person, or of its own motion, order the action to proceed as if the name of that person had been so included. (2) The court may order that any one or more of the persons for whose benefit an action has been brought be separately represented by counsel or solicitor, or both. (3) Where the court makes an order under this section, the court may, at the same time or subsequently, make such orders in relation to procedure in the action as it thinks fit. (4) The powers of the court under this section are in addition to, and not in derogation of, any other powers of the court. 16. Provisions applicable where action tried before court with a jury If an action or the assessment of damages in an action is tried before the court with a jury, the references in section 10 to the court shall be read as references to the jury before which the action is tried. ____________________________ Notes 1. The Compensation (Fatal Injuries) Act comprises the Compensation (Fatal Injuries) Ordinance 1974 and amendments made by other legislation, the details of which are specified in the following table: Act Number and year Date of assent by Administrator Date of commencement Compensation (Fatal Injuries) Ordinance 1974 No. 36, 1974 23 Sept 1974 23 Sept 1974 Transfer of Powers (Further Provisions) Ordinance 1977 No. 51, 1977 9 Dec 1977 1 Jan 1978 but see s. 6 Status of Children Act 1978 No. 16, 1979 26 Jan 1979 21 Sept 1979 (a) Compensation (Fatal Injuries) Act 1979 No. 68, 1979 26 June 1979 1 July 1979 (b) Statute Law Revision Act 1980 No. 6, 1981 9 Jan 1981 9 Jan 1981 Limitation Act 1981 No. 87, 1981 21 Sept 1981 26 Feb 1982 (c) Compensation (Fatal Injuries) Amendment Act 1982 No. 89, 1982 14 Dec 1982 20 May 1983 (d) De Facto Relationships (Miscellaneous Amendments) Act 1991 No. 82, 1991 24 Dec 1991 1 Jan 1992 (e) Compensation (Fatal Injuries) Amendment Act 2001 No. 13, 2001 28 June 2001 1 Aug 2001 (f) Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 No. 1, 2004 7 Jan 2004 17 Mar 2004 (g) (a) See section 2 and Gazette G38, dated 21 September 1979, p. 1. (b) See section 2. (c) See section 2 and Gazette G8, dated 26 February 1982, p. 2. (d) See section 2 and Gazette G20 dated 20 May 1983, p. 4. (e) See section 2. (f) See section 2, section 2 of the Law Reform (Miscellaneous Provisions) Amendment Act 2001 and Gazette G29, dated 25 July 2001, p. 2. (g) See section 2 and Gazette G11, dated 17 March 2004, p. 8. 2. Section 66 of the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 provides as follows: "66. Amendments of Compensation (Fatal Injuries) Act "The Compensation (Fatal Injuries) Act as amended by this Act applies in relation to a death occurring after the commencement of Schedule 1, Part 9, whether the act, neglect or default that caused the death occurred before or after that commencement.". ____________________________ Table of Amendments Section Long title Amended by No. 6, 1981, s. 4 1. Amended by No. 6, 1981, s. 4 2. Amended by No. 6, 1981, s. 4 3. Repealed by No. 51, 1977, s. 3 4. Amended by No. 16, 1979, s. 19; No. 6, 1981, s. 4; No. 89, 1982, s. 3; No. 82, 1991, s. 11; No. 1, 2004, s. 62 5. Substituted by No. 68, 1979, s. 4 6. Amended by No. 6, 1981, s. 4 7. Amended by No. 6, 1981, s. 4 9. Repealed by No. 87, 1981, s. 3 10. Amended by No. 1, 2004, s. 62 11. Amended by No. 6, 1981, s. 4; No. 13, 2001, s. 3 12. Amended by No. 6, 1981, s. 4 ____________________________ __________________ ii Compensation (Fatal Injuries) Act 10