LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1941 - SECT 4
LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1941 - SECT 4
4 . Effect of death on certain causes of action
(1) Subject to the
provisions of this section and the Limitation Act 2005 , on the death of any
person after the commencement of this Act 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 to marry shall be limited to such damage, if
any, to the estate of that person as flows from the breach of 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, 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;
(d)
shall not, unless because of subsection (2a) this paragraph does not apply,
include any damages for the pain or suffering of that person or for any bodily
or mental harm suffered by him or for the curtailment of his expectation of
life;
(e)
shall not include any damages for the loss of the capacity of that person to
earn, or for the loss of future probable earnings of that person, during such
time after his death as he would have survived but for the act or omission
which gives rise to the cause of action.
(2a) Subsection (2)(d)
does not apply where —
(a) the
death of the person occurs after the day on which the Law Reform
(Miscellaneous Provisions (Asbestos Diseases)) Act 2002 comes into operation 1
;
(b) the
death results from a latent injury that is attributable to the inhalation of
asbestos which has been caused by the act or omission giving rise to the cause
of action; and
(c)
proceedings in respect to the cause of action had been instituted by that
person before his or her death and were pending at the time of death.
[(3) deleted]
(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 was suffered, there shall be deemed,
for the purposes of this Act, 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 Act for the benefit of the estates of deceased persons shall
be in addition to and not in derogation of any rights conferred on the
dependants of deceased persons by the Imperial Act 9th and 10th Victoria,
Chapter 93 (adopted in Western Australia by the Act 12th Victoria No. 21), as
amended by the Act No. 37 of 1900 2 , and so much of this Act as relates to
causes of action against the estates of deceased persons shall apply in
relation to causes of action under the said Act as it applies in relation to
other causes of action not expressly excepted from the operation of subsection
(1).
[Section 4 amended: No. 80 of 1982 s. 2; No. 84 of
1983 s. 11; No. 1 of 2002 s. 3; No. 20 of 2005 s. 15(1)-(3); No. 8 of 2009 s.
84(3).]