Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 29

Effect of death on certain causes of action

29. Effect of death on certain causes of action





(1) Subject to the provisions of this section, on the death of any person, all
causes of action subsisting against or vested in him shall survive against or
(as the case may be) for the benefit of his estate:

Provided that this subsection shall not apply to causes of action for
defamation or seduction or for inducing one spouse to leave or remain apart
from the other.

(2) Where a cause of action survives as aforesaid for the benefit of the
estate of a deceased person the damages recoverable for the benefit of the
estate of that person-

   (a)  shall not include any exemplary damages;

   (b)  in the case of a breach of promise of marriage shall be limited to
        such damage (if any) to the estate of that person as flows from the
        breach of the promise to marry;

   (c)  where the death of that person has been caused by the act or omission
        which gives rise to the cause of action-

   (i)  shall be calculated without reference to any loss or gain to his
        estate consequent on his death, except that a sum in respect of
        funeral expenses may be included;

   (ii) shall not, except as provided in subsection (2A), include any damages
        for his pain or suffering or for any bodily or mental harm suffered by
        him or for the curtailment of his expectation of life;

   (iii) shall be calculated without reference to the future probable earnings
        of the deceased had he survived and without any allowance for the loss
        of his earning capacity that relates to any period after his death.

(2A) Where-

   (a)  a cause of action survives under subsection (1) for the benefit of the
        estate of a deceased person; and

   (b)  the death of that person is from a dust-related condition which has
        been caused by the act or omission which gives rise to the cause of
        action; and





   (c)  proceedings in respect of that cause of action were commenced by that
        person before his or her death and were pending at his or her death-

the damages recoverable for the benefit of the estate of that person shall
include damages for all or any of the following-

   (d)  that person's pain or suffering;

   (e)  any bodily or mental harm suffered by that person;

   (f)  the curtailment of that person's expectation of life.

(3) Where a cause of action in tort survives against the estate of a deceased
person pursuant to the provisions of subsection (1) of this section no
proceedings in respect of the cause of action may be maintained against the
estate of the deceased person except proceedings-

   (a)  that were commenced against the deceased before his death and were
        pending and not barred at the date of his death;

   (b)  that are commenced against his personal representative after his
        death-

   (i)  within the period within which those proceedings might have been
        commenced against him had he lived; or

   (ii) where the proceedings are proceedings for negligence nuisance or
        breach of duty (whether the duty exists by virtue of a contract or of
        provision made by or under a statute or independently of any contract
        or any such provision) and the damages claimed by the plaintiff
        consist of or include damages in respect of personal injuries to any
        person, within such longer period as a court, on application made to
        it by the claimant and after hearing such of the persons likely to be
        affected by that application as it sees fit and subject to subsection
        (3A), decides is just and reasonable;

   (c)  that were not barred at the date of his death and are commenced
        against his personal representative within six months after his
        personal representative takes out representation.

(3A) In exercising the powers conferred on it by subparagraph (b)(ii) of
subsection (3) the court shall have regard to all the circumstances of the
case including (without derogating from the generality of the foregoing) the
following:

   (a)  The date when the claimant first knew that the deceased had died;

   (b)  The date when the claimant first knew he had a cause of action against
        the deceased;

   (c)  The date when the claimant first knew that the personal representative
        of the deceased had taken out representation; and

   (d)  Any prejudice which may be caused to the personal representative or
        any other person by extension of the said time.

(4) Where damage has been suffered by reason of any act or omission in respect
of which a cause of action would have subsisted against any person if that
person had not died before or at the same time as the damage is suffered there
shall be deemed for the purposes of this section to have been subsisting
against him before his death such cause of action in respect of that act or
omission as would have subsisted if he had died after the damage was suffered.

(5) The rights conferred by this section for the benefit of the estates of
deceased persons shall be in addition to and not in derogation from any rights
conferred on the dependants of a deceased person by Part III of the
Wrongs Act 1958, and this section shall apply in relation to causes of action
under the said Part III as it applies in relation to other causes of action
not expressly excepted from the operation of subsection (1) of this section.



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