Victorian Consolidated Legislation

Wrongs Act 1958 - SECT 19

Assessment of damages

19. Assessment of damages



(1) In assessing damages in any action under this Part, whether commenced
before or after the passing of the Wrongs (Assessment of Damages) Act 1966,
there shall not be taken into account-

   (a)  a sum paid or payable on the death of the deceased person under any
        contract of assurance or insurance (including a contract made with a
        friendly or other benefit society or association or trade union);

   (b)  a sum paid or payable out of any superannuation provident or like
        fund;





   (c)  a sum paid or payable by way of pension benefit or allowance under any
        law of the Commonwealth or the State or under the law of any other
        State territory or country; or

   (d)  a sum paid or payable as a gratuity-

whether any such sum is paid or payable to the estate of the deceased person
or to any person for whose benefit the action is brought.

(1A) In assessing damages in any action under this Part, there shall not be
taken into account-

   (a)  any damages under section 29(2A) of the
        Administration and Probate Act 1958 recovered or recoverable for the
        benefit of the estate of the deceased person; or

   (b)  any share of those damages paid or likely to be paid to any person for
        whose benefit the action under this Part is brought.

(2) In assessing damages in an action under this Part, that is commenced on or
after the commencement of the Wrongs (Remarriage Discount) Act 2004, no
separate reduction may be made on account of-

   (a)  the remarriage or formation of a domestic partnership; or

   (b)  the prospects of remarriage or formation of a domestic partnership-

of the surviving spouse or domestic partner, or a surviving former spouse or
former domestic partner, of the deceased person.





(3) In subsection (2)-



domestic partner of a person who dies means-

   (a)  a person who was, at the time of death, in a registered relationship
        with the person; or

   (b)  an adult person to whom the person was not married at the time of
        death but with whom the person was in a relationship as a couple where
        one or each of them provided personal or financial commitment and
        support of a domestic nature for the material benefit of the other,
        irrespective of their genders and whether or not they were living
        under the same roof, but does not include a person who provided
        domestic support and personal care to the person-

   (i)  for fee or reward; or

   (ii) on behalf of another person or an organisation (including a government
        or government agency, a body corporate or a charitable or benevolent
        organisation); spouse of a person who dies means a person who was
        married to the person at the time of the person's death.

(4) For the purposes of the definition of domestic partner in subsection (3)-

   (a)  registered relationship has the same meaning as in the
        Relationships Act 2008; and

   (b)  in determining whether persons who were not in a registered
        relationship were domestic partners of each other, all the
        circumstances of their relationship are to be taken into account,
        including any one or more of the matters referred to in section 35(2)
        of the Relationships Act 2008 as may be relevant in a particular case;
        and

   (c)  a person is not a domestic partner of another person only because they
        are co-tenants.

(5) Except as provided in this section, nothing in this section affects any
other law relating to damages in an action under this Part.